Let's Abolish Government - Lysander Spooner

LET'S ABOLISH GOVERNMENT

Lysander Spooner

Arno Press & The New York TimesNew York • 1972

Reprint Edition 1972 by Arno Press Inc.

LC# 73-172232ISBN 0-405-00441-9

The Right Wing Individualist Tradition in AmericaISBN for complete set: 0-405-00410-9See last pages of this volume for titles.

Manufactured in the United States of America

CONTENTS

AN ESSAY ON THE TRIAL BY JURY

A LETTER TO GROVER CLEVELAND, ON HIS FALSE INAUGURALADDRESS, THE USURPATIONS AND CRIMES OF LAWMAKERS ANDJUDGES, AND THE CONSEQUENT POVERTY, IGNORANCE, ANDSERVITUDE OF THE PEOPLE

NO TREASON: The Constitution of No Authority, and A LETTER TO THOMASF. BAYARD

AN ESSAY

ON THB

TRIAL BY JURY

BY LTSANDER SPOONER

BOSTON:JOHN P. JEWETT AND COMPANY.

CLEVELAND, OHIO:JEWETT, PROCTOR A WORTHINGTON.

1 8 5 2 .

i Moorting to Act of Congress, in the year 1852, by

LYSANDER SPOONER,

In the Clerk's Office of the District Court of Musachusetts.

NOTICE TO ENGLISH PUBLISHERS.

The author claims the copyright of this book in England, on CommonLaw principles, without regard to acts of parliament; and if the mainprinciple of the book itself be true, viz., that no legislation, in conflict withthe Common Law, is of any validity, his claim is a legal one. He forbidsany one to reprint the book without his consent.

Sttr totyptd byHOBART * BOBBINS;

Niw Enf land Typt and 8t.r.otjp. Found*!?,

N O T E .

This volume, it is presumed by the author, gives what will generally be

considered satisfactory evidence,—though not all the evidence,—of what the

Common Law trial by jury really is. In a future volume, if it should be called

for, it is designed to corroborate the grounds taken in this ; give a concise view

of the English constitution ; show the unconstitutional character of the existing

government in England, and the unconstitutional means by which the trial

by jury has been broken down in praotioe ; prove that, neither in England nor

the United States, have legislatures ever been invested by the people with any

authority to impair the powers, change the oaths, or (with few exceptions)

abridge the jurisdiction, of juries, or select jurors on any other than Common

Law principles; and, consequently, that, in both countries, legislation is still

constitutionally subordinate to the discretion and consciences of Common Law

juries, in all cases, both civil and criminal, in which juries sit The same

volume will probably also discuss several political and legal questions, which

will naturally assume importance if the trial l y jury should be reestablished.

CONTENTS.

CHAPTER L THE BIGHT OF JURIES TO JUDGE OF THE JUS-TICE OF LAWS 5

SECTION 1, 5

SECTION 2, 11

CHAPTER H. THE TRIAL BY JURY, AS DEFINED BY MAGNA

CARTA 20

S E C T I O N 1 . The H i s t o r y of M a g n a C a r t a , . . . 2 0

SECTION 2. The Language of Magna Carta, . . 25

CHAPTER HL ADDITIONAL PROOFS OF THE RIGHTS AND DU-TIES OF JURORS 61

SECTION 1. Weakness of the Regal Authority, . . 51

SECTION 2. The Ancient Common Law Juries toere mere

Courts of Conscience, 68

SECTION 3. The Oaths of Jurors 85

SECTION 4. The Right of Jurors to fix the Sentence, . 91

SECTION 5. The Oaths of Judges, 98

SECTION 6. The Coronation Oath 102

CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN CIVIL

SUITS 110

CHAPTER V. OBJECTIONS ANSWERED, 128

CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL, . 142

CHAPTER VH. ILLEGAL JUDGES, 157

CHAPTER VDI. THE FREE ADMINISTRATION OF JUSTICE, . 172

CHAPTER IX. THE CRIMINAL INTENT 178

CHAPTER X. MORAL CONSIDERATIONS FOR JURORS, . . 189

CHAPTER XI. AUTHORITY OF MAGNA CARTA, . . . .192

CHAPTER XIL LIMITATIONS IMPOSED UPON THE MAJORITYBY THE TRIAL BY JURY 206

APPENDIX—TAXATION 222

TRIAL BY JURY.

CHAPTER I.

THE BIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.

S E C T I O N I.

FOR more than six hundred years — that is, since MagnaCarta, in 1215 — there has been no clearer principle ofEnglish or American constitutional law, than that, in criminalcases, it is not only the right and duty of juries to judge whatare the facts, what is the law, and what was the moral intentof the accused; but that it is also their right, and their pri-mary and paramount duty, to judge of the justice of the law,and to hold all laws invalid, that are, in their opinion, unjustor oppressive, and all persons guiltless in violating, or resistingthe execution of, such laws.

Unless such be the right and duty of jurors, it is plain that,instead of juries being a ''palladium of liberty'' — a barrieragainst the tyranny and oppression of the government — theyare really mere tools in its hands, for carrying into executionany injustice and oppression it may desire to have executed.

But for their right to judge of the law, and the justice ofthe law, juries would be no protection to an accused person,even as to matters of fact; for, if the government can dictateto a jury any law whatever, in a criminal case, it cancertainly dictate to them the laws of evidence. That is, itcan dictate what evidence is admissible, and what inadmis-sible, and also tohat force or weight is to be given to theevidence admitted. And if the government can thus dictateto a jury the laws of evidence, it can not only make it neces-sary for them to convict on a partial exhibition of the evidencerightfully pertaining to the case, but it can even require them

1*

6 TRIAL BY JURY.

to convict on any evidence whatever that it pleases to offerthem.

That the rights and duties of jurors must necessarily besuch as are here claimed for them, will be evident when it isconsidered what the trial by jury is, and what is its object.

" The trial by jury," then, is a "trial by the country" —that is, by the people — as distinguished from a trial by thegovernment,.

It was anciently called " trial per pais "— that is, "trial bythe country." And now, in every criminal trial, the jury aretold that the accused " has, for trial, put himself upon thecountry; which country you (the jury) are."

The object of this trial "by the country" or by the people,in preference to a trial by the government, is to guard againstevery species of oppression by the government. In order toeffect this end, it is indispensable that the people, o-r " thecountry" judge of and determine their own liberties againstthe government; instead of the governments judging of anddetermining its own powers over the people. Hoxo is it possiblethat juries can do anything to protect the liberties of the peopleagainst the government, if they are not allowed to determinewhat those liberties are ?

Any government, that is its own judge of, and determinesauthoritatively for the people, what are its own powers over thepeople, is an absolute government of course. It has all thepowers that it chooses to exercise. There is no other — or atleast no more accurate — definition of a despotism than this.

On the other hand, any people, that judge of, and determineauthoritatively for the government, what are their own libertiesagainst the government, of course retain all the liberties theywish to enjoy. And this is freedom. At least, it is freedomto them; because, although it may be theoretically imper-fect, it, nevertheless, corresponds to their highest notions offreedom.

To secure this right of the people to judge of their ownliberties against the government, the jurors are taken, (or mustbe, to make them lawful jurors,) from the body of the people, bylot, or by some process that precludes any previous knowledge,choice, or selection of them, on the part of the government.

JURIES JUDGES OP THE JUSTICE OP LAWS. 7

This is done to prevent the government's constituting a juryof its own partisans or friends; in other words, to prevent thegovernment's packing a jury, with a view to maintain its ownlaws, and accomplish its own purposes.

It is supposed th'at, if twelve men be taken, by lot, from themass of the people, without the possibility of any previousknowledge, choice, or selection of them, on the part of thegovernment, the jury will be a fair epitome of " the country "at large, and not merely of the party or faction that sustainthe measures of the government; that substantially all classesof opinions, prevailing among the people, will be representedin the jury; and especially that the opponents of the gov-ernment, (if the government have any opponents,) will be repre-sented there, as well as its friends; that the classes, who areoppressed by the laws of the government, (if any are thusoppressed,) will have their representatives in the jury, as wellas those classes, who take sides with the oppressor — that is,with the government.

It is fairly presumable that such a tribunal will agree to noconviction except such as substantially the whole countrywould agree to, if they were present, taking part in the trial.A trial by such a tribunal is, therefore, in effect, u a trial bythe country." In its results it probably comes as near to atrial by the whole country, as any trial that it is practicableto have, without too great inconvenience and expense. Andas unanimity is required for a conviction, it follows that noone can be convicted, except for the violation of such laws assubstantially the whole country wish to have maintained.The government can enforce none of its laws, (by punishingoffenders, through the verdicts of juries,) except such as sub-stantially the whole people wish to have enforced. The gov-ernment, therefore, consistently with the trial by jury, canexercise no powers over the people, (or, what is the samething, over the accused person, who represents the rights ofthe people,) except such as substantially the whole peopleof the country consent that it may exercise. In such a trial,therefore, " the country," or the people, judge of and determinetheir own liberties against the government, instead of the

8 TRIAL BY JURY.

government's judging of and determining its own powers overthe people.

But all this " trial by the country " would be no trial at all" by the country," but only a trial by the government, if thegovernment could either declare who may, and who may not,be jurors, or could dictate to the jury anything whatever,either of law or evidence, that is of the essence of the trial.

If the government may decide who may, and who may not,be jurors, it will of course select only its partisans, and thosefriendly to its measures. It may not only prescribe who may,and who may not, be eligible to be drawn as jurors; but it mayalso question each person drawn as a juror, as to his senti-ments in regard to the particular law involved in each trial,before suffering him to be sworn on the panel; and excludehim if he be found unfavorable to the maintenance of such alaw.*

So, also, if the government may dictate to the jury whatlaws they are to enforce, it is no longer a " trial by the country,"

*To show that this supposition is not an extravagant one, it may be mentioned thatcourts have repeatedly questioned jurors to ascertain whether they were prejudicedagainst the government — that is, whether they were in favor of, or opposed to, such lawsof the government as were to be put in issue in the then pending trial. This was done(in 1851) in the United States District Court for the District of Massachusetts, by PelegSprague, the United States district judge, in empanelling three several juries forthe trials of Scott, Hayden, and Morris, charged with having aided in the rescue of afugitive slave from the custody of the United States deputy marshal. This judgecause! the following question to be propounded to all the jurors separately ; and thosewho answered unfavorably for the purposes of the government, were excluded from thepanel.

" Do you hold any opinions upon the subject of the Fugitive Slave Law, so called,which will induce you to refuse to convict a person indicted under it, if the facts setforth in the indictment, and constituting the offence, are proved against him, and thecourt direct you that the law is constitutional 1 "

The reason of this question was, that " the Fugitive Slave Law, so called," was soobnoxious to a large portion of the people, as to render a conviction under it hopeless,if the jurors were taken indiscriminately from among the people.

A similar question was soon afterwards propounded to the persons drawn as jurors inthe United States Circuit Court for the District of Massachusetts, by Benjamin R.Curti.% one of the Justices of the Supreme Court of the United States, in empanellinga ju; y for the trial of the aforesaid Morris on the charge before mentioned ; and thosewho .lid not answer the question favorably for the government were again excludedfrom the panel.

It has also been an habitual practice with the Supreme Court of Massachusetts, inempanelling juries for the trial of capital offences, to inquire of the persona drawn asjurors whether they had any conscientious scruples against finding verdicts of guilty

JURIES JUDGES OF THE JUSTICE OF LAWS. 9

but a trial by the government; because the jury then try theaccused, not by any standard of their own — not by thtirown judgments of their rightful liberties — but by a standarddictated to them by the government. And the standard, thusdictated by the government, becomes the measure of the pea-pie's liberties. If the government dictate the standard of triul,it of course dictates the results of the trial. And such a trialis no trial by the country, but only a trial by the government;and in it the government determines what are its own powersover the people, instead of the people's determining what arotheir own liberties against the government. In short, if thejury have no right to judge of the justice of a law of the gov-ernment, they plainly can do nothing to protect the peopleagainst the oppressions of the government; for there are nooppressions which the government may not authorize by law.

The jury are also to judge whether the laws are rightly ex-pounded to them by the court. Unless they judge on thispoint, they do nothing to protect their liberties against theoppressions that are capable of being practised under cover ofa corrupt exposition of the laws. If the judiciary can authori-tatively dictate to a jury any exposition of the law, they candictate to them the law itself, and such laws as they please;because laws are, in practice, one thing or another, accordingas they are expounded.

in such cases ; that is, whether they had any conscientious scruples against sustainingthe law prescribing death as the punishment of the crime to be tried ; and to exoludefrom the panel all who answered in the affirmative.

The only principle upon which these questions are asked, is this — that no man shallbe allowed to serve as juror, unless he be ready to enforce any enactment of the gov-ernment, however cruel or tyrannical it may be.

What is such a jury good for, as a protection against the tyranny of the govern-ment 1 A jury like that is palpably nothing but a mere tool of oppression in thehands of the government. A trial by such a jury is really a trial by the governmentitself— and not a trial by the country — because it is a trial only by men speciallyselected by the government for their readiness to enforce its own tyrannical measures.

If that be the true principle of the trial by jury, the trial is utterly worthless as asecurity to liberty. The Czar might, with perfect safety to his authority, introduce thetrial by jury into Russia, if he could but be permitted to select his jurors from thosewho were ready to maintain his laws, without regard to their injustice.

This example is sufficient to show that the very pith of the trial by jury, as a safe-guard to liberty, consists in the jurors being taken indisoriminateiy from the wholepeople, and in their right to hold invalid all laws whioh they think unjust.

10 TRIAL BY JURY.

The jury must also judge whether there really be any suchlaw, (be it good or bad,) as the accused is charged withhaving transgressed. Unless they judge on this point, thepeople are liable to have their liberties taken from them bybrute force, without any law at all.

The jury must also judge of the laws of evidence. If thegovernment can dictate to a jury the laws of evidence, it cannot only shut out any evidence it pleases, tending to vindicatethe accused, but it can require that any evidence whatever,that it pleases to offer, be held as conclusive proof of anyoffence whatever which the government chooses to allege.

It is manifest, therefore, that the jury must judge of and trythe whole case, and every part and parcel of the case, freeof any dictation or authority on the part of the government.They must judge of the existence of the law; of the trueexposition of the law; of the justice of the law ; and of theadmissibility and weight of all the evidence offered; otherwisethe government will have everything its own way; the jurywill be mere puppets in the hands of the government; and thetrial will be, in reality, a trial by the government, and not a" trial by the country." By such trials the government willdetermine its own powers over the people, instead of the peo-ple's determining their own liberties against the government;and it will be an entire delusion to talk, as for centuries wehave done, of the trial by jury, as a " palladium of liberty,"or as any protection to the people against the oppression andtyranny of the government.

The question, then, between trial by jury, as thus described,and trial by the government, is simply a question betweenliberty and despotism. The authority to judge what are thepowers of the government, and what the liberties of the people,must necessarily be vested in one or the other of the partiesthemselves — the government, or the people; because there isno third party to whom it can be entrusted. If the authoritybe vested in the government, the government is absolute, andthe people have no liberties except such as the governmentsees fit to indulge them with. If, on the other hand, thatauthority be vested in the people, then the people have allliberties, (as against the government,) except such as substan-

JURIES JUDGES OF THE JUSTICE OF LAWS. 1 1

tially the whole people (through a jury) choose to disclaim;and the government can exercise no power except such assubstantially the whole people (through a jury) consent thatit may exercise.

S E C T I O N I I .

The force and justice of the preceding argument cannot beevaded by saying that the government is chosen by the people;that, in theory, it represents the people; that it is designed todo the will of the people; that its members are all sworn toobserve the fundamental or constitutional law instituted bythe people; that its acts are therefore entitled to be consideredthe acts of the people; and that to allow a jury, representingthe people, to invalidate the acts of the government, wouldtherefore be arraying the people against themselves.

There are two answers to such an argument.One answer is, that, in a representative government, there

is no absurdity or contradiction, nor any arraying of the peopleagainst themselves, in requiring that the statutes or enactmentsof the government shall pass the ordeal of any number of sep-arate tribunals, before it shall be determined that they are tohave the force of laws. Our American constitutions haveprovided five of these separate tribunals, to wit, representatives,senate, executive,* jury, and judges; and have made it neces-sary that each enactment shall pass the ordeal of all theseseparate tribunals, before its authority can be established bythe punishment of those who choose to transgress it. Andthere is no more absurdity or inconsistency in making a juryone of these several tribunals, than there is in making the rep-resentatives, or the senate, or the executive, or the judges, oneof them. There is no more absurdity in giving a jury a vetoupon the laws, than there is in giving a veto to each of theseother tribunals. The people are no more arrayed againstthemselves, when a jury puts its veto upon a statute, whichthe other tribunals have sanctioned, than they are when the

* The executive has a qualified veto upon the passage of laws, in most of our govern-ments, and an absolute veto, in all of them, upon the execution of any laws which hedeems unconstitutional; because his oath to support the constitution (as he understand*it) forbids him to execute any law that he deems unoonitiiutionaL

12 TRIAL BY JURY.

same veto is exercised by the representatives, the senate, theexecutive, or the judges.

ha t another answer to the argument that the people arearrayed against themselves, when a jury hold an enactmentof the government invalid, is, that the government, and all thedepartments of the government, are merely the servants andagents of the people; not invested with arbitrary or absoluteauthority to bind the people, but required to submit all theirenactments to the judgment of a tribunal more fairly repre-senting the whole people, before they carry them into exe-cution, by punishing any individual for transgressing them.If the government were not thus required to submit theirenactments to the judgment of "the country," before exe-cuting them upon individuals — if, in other words, the peoplehad reserved to themselves no veto upon the acts of the gov-ernment, the government, instead of being a mere servantand agent of the people, would be an absolute despot over thepeople. It would have all power in its own hands; becausethe power to punish carries all other powers with it. Apower that can, of itself, and by its' own authority, punishdisobedience, can compel obedience and submission, and isabove all responsibility for the character of its laws. Inshort, it is a despotism.

And it is of no consequence to inquire how a governmentcame by this power to punish, whether by prescription, byinheritance, by usurpation, or by delegation from the people?If it have now but got it, the government is absolute.

It is plain, therefore, that if the people have invested thegovernment with power to make laws that absolutely bindthe people, and to punish the people for transgressing thoselaws, the people have surrendered their liberties unreservedlyinto the hands of the government.

It is of no avail to say, in answer to this view of the case,that in surrendering their liberties into the hands of the gov-ernment, the people took an oath from the government, that itwould exercise its power within certain constitutional limits; forwhen did oaths ever restrain a government that was otherwiseunrestrained ? Or when did a government fail to determinethat all its acts were within the constitutional and authorized


limits of its power, if it were permitted to determine thatquestion for itself?

Neither is it of any avail to say, that, if the governmentabuse its power, and enact unjust and oppressive laws, thegovernment may be changed by the influence of discussion,and the exercise of the right of suffrage. Discussion can donothing to prevent the enactment, or procure the repeal, ofunjust laws, unless it be understood that the discussion is tobe followed by resistance. Tyrants care nothing for discus-sions that are to end only in discussion. Discussions, whichdo not interfere with the enforcement of their laws, are butidle wind to them. Suffrage is equally powerless and unre-liable. It can be exercised only periodically; and the tyrannymust at least be borne until the time for suffrage comes. Be-sides, when the suffrage is exercised, it gives no guaranty forthe repeal of existing laws that are oppressive, and no securityagainst the enactment of new ones that are equally so. Thesecond body of legislators are liable and likely to be just astyrannical as the first. If it be said that the second bodymay be chosen for their integrity, the answer is, that the firstwere chosen for that very reason, and yet proved tyrants.The second will be exposed to the same temptations as thefirst, and will be just as likely to prove tyrannical. Whoever heard that succeeding legislatures were, on the whole,more honest than those that preceded them ? What is therein the nature of men or things to make them so? If it be saidthat the first body were chosen from motives of injustice, thatfact proves that there is a portion of society who desire toestablish injustice; and if they were powerful or artful enoughto procure the election of their instruments to compose thefirst legislature, they will be likely to be powerful or artfulenough to procure the election of the same or similar instru-ments to compose the second. The right of suffrage, therefore,and even a change of legislators, guarantees no change of legis-lation — certainly no change for the better. Even if a changefor the better actually comes, it comes too late, because it comesonly after more or less injustice has been irreparably done.

But, at best, the right of suffrage can be exercised only pe-riodically ; and between the periods the legislators are wholly

2

14 TRIAL BY JURY.

irresponsible. No despot was ever more entirely irresponsiblethan are republican legislators during the period for whichthey are chosen. They can neither be removed from theiroffice, nor called to account while in their office, nor punishedafter they leave their office, be their tyranny what it may.Moreover, the judicial and executive departments of the gov-ernment are equally irresponsible to the people, and are onlyresponsible, (by impeachment, and dependence for their sala-ries), to these irresponsible legislators. This dependence ofthe judiciary and executive upon the legislature is a guarantythat they will always sanction and execute its laws, whetherjust or unjust. Thus the legislators hold the whole powerof the government in their hands, and are at the same timeutterly irresponsible for the manner in which they use it.

If, now, this government, (the three branches thus reallyunited in one), can determine the validity of, and enforce, itsown laws, it is, for the time being, entirely absolute, andwholly irresponsible to the people.

But this is not all. These legislators, and this government,so irresponsible while in power, can perpetuate their powerat pleasure, if they can determine what legislation is author-itative upon the people, and can enforce obedience to it; forthey can not only declare their power perpetual, but they canenforce submission to all legislation that is necessary to secureits perpetuity. They can, for example, prohibit all discussionof the rightfulness of their authority; forbid the use of the suf-frage; prevent the election of any successors; disarm, plunder,imprison, and even kill all who refuse submission. If, there-fore, the government (all departments united) be absolute for aday — that is, if it can, for a day, enforce obedience to its ownlaws — it can, in that day, secure its power for all time — likethe queen, who wished to reign but for a day, but in that daycaused the king, her husband, to be slain, and usurped his throne.

Nor will it avail to say that such acts would be unconstitu-tional, and that unconstitutional acts may be lawfully resisted*for everything a government pleases to do will, of course, bedetermined to be constitutional, if the government itself be per-mitted to determine the question of the constitutionality of itsown acts. Those who are capable of tyranny, are capable ofperjury to sustain it.


The conclusion, therefore, is, that any government, that can,for a day, enforce its own laws, without appealing to the peo-ple, (or to a tribunal fairly representing the people,) for theirconsent, is, in theory, an absolute government, irresponsible tothe people, and can perpetuate its power at pleasure.

The trial by jury is based upon a recognition of this prin-ciple, and therefore forbids the government to execute any ofits laws, by punishing violators, in any case whatever, with-out first getting the consent of " the country," or the people,through a jury. In this way, the people, at all times, holdtheir liberties in their own hands, and never surrender them,even for a moment, into the hands of the government.

The trial by jury, then, gives to any and every individualthe liberty, at any time, to disregard or resist any law what-ever of the government, if he be willing to submit to thedecision of a jury, the questions, whether the law be intrin-sically just and obligatory? and whether his conduct, in disre-garding or resisting it, were right in itself? And any law,which does not, in such trial, obtain the unanimous sanctionof twelve men, taken at random from the people, and judgingaccording to the standard of justice in their own minds, freefrom all dictation and authority of the government, maybe transgressed and resisted with impunity, by whomsoeverpleases to transgress or resist it.*

The trial by jury authorizes all this, or it is a sham anda hoax, utterly worthless for protecting the people againstoppression. If it do not authorize an individual to resist triefirst and least act of injustice or tyranny, on the part of thegovernment, it does not authorize him to resist the last and thegreatest. If it do not authorize individuals to nip tyranny inthe bud, it does not authorize them to cut it down when itsbranches are filled with the ripe fruits of plunder andoppression.

Those who deny the right of a jury to protect an individualin resisting an unjust law of the government, deny him all

* And if there be «o mueh as a reasonable doubt of the justice of the laws, thebenefit of that doubt must be given to the defendant, and not to the government. Sothat the government must keep its laws dearly within the limits of justice, if it would•sk a jury to enforce them.

16 TRIAL BY JURY.

legal defence whatsoever against oppression. The right ofrevolution, which tyrants, in mockery, accord to mankind, isno legal right under a government; it is only a natural rightto overturn a government. The government itself neveracknowledges this right. And the right is practically estab-lished only when and because the government no longer existsto call it in question. The rightr therefore, can be exercisedwith impunity, only when it is exercised victoriously. Allunsuccessful attempts at revolution, however justifiable inthemselves, are punished as treason, if the government bepermitted to judge of the treason. The government itselfnever admits the injustice of its taws, as a legal defence forthose who have attempted a revolution, and failed. The rightof revolution, therefore, is a right of no practical value, exceptfor those who are stronger than the government. So long,therefore, as the oppressions of a government are kept withinsuch limits as simply not to exasperate against it a powergreater than its own, the right of revolution cannot beappealed to, and is. therefore inapplicable to the casev Thisaffords a wide field for tyranny; and if a jury cannot hereintervene, the oppressed are utterly defenceless.

It is manifest that the only security against the tyranny ofthe government lies in forcible resistance to the execution ofthe injustice; because the injustice will certainly he executed,unless it be. f&rcibly resisted. And if it be but suffered to beexecuted, it must then be borne; for the government nevermakes compensation for its own wrongs.

Since, then, this forcible resistance to the injustice of thegovernment is the only possible means of preserving liberty,,it is indispensable to all legal liberty that this resistanceshould be legalized. It is perfectly self-evident that wherethere is no legal right to resist the oppression of the govern-ment, there can be no legal liberty. And here it is all-impor-tant to notice, that, practically speaking, there can be no legalright to resist the oppressions of the government, unless therebe some legal tribunal, other than the government, and whollyindependent of, and above, the government, to judge betweenthe government and those who resist its oppressions; in otherwords, to judge what laws of the government are to be

JURIES JUDGES OF THE JUSTICE OF LAWS. 17

obeyed, and what may be resisted and held for nought. Theonly tribunal known to our laws, for this purpose, is a jury.If a jury have not the right to judge between the governmentand those who disobey its laws, and resist its oppressions, thegovernment is absolute, and the people, legally speaking, areslaves. Like many other slaves they may have sufficientcourage and strength to keep their masters somewhat incheck • but they are nevertheless knowti to the law only asslaves.

That this right of resistance was recognized as a commonlaw right, when the ancient and genuine trial by jury was inforce, is not only proved by the nature of the trial itself, butis acknowledged by history.*

This right of resistance is recognized by the constitution ofthe United States, as a strictly legal and constitutional right.It is so recognized, first by the provision that " the trial of allcrimes, except in cases of impeachment, shall be by jury " —that is, by the country — and not by the government; sec-ondly, by the provision that " the right of the people to keepand bear arms shall not be infringed." This constitutionalsecurity for " the right to keep and bear arms," implies theright to use them — as much as a constitutional security forthe right to buy and keep food would have implied the rightto eat it. The constitution, therefore, takes it for granted that

• Hallam says, •* The relation •established between a lord and his vassal by the feudaltenure, far from containing principles of any servile and implicit obedience, permittedthe compact to be dissolved in case of its violation by either party. This extended asmuch to the sovereign as to inferior lords. * * If a vassal was aggrieved, and ifjustice was denied him, he sent a defiance, that is, a renunciation of fealty to the king,and was entitled to enforce redress at the point of his sword. It then became a contestof strength as between two independent potentates, and was terminated by treaty,advantageous or otherwise, according to the fortune of war. * * There remainedthe original principle, that allegiance depended conditionally upon good treatment, andthat an appeal might be lawfully made to arms against an oppressive government. Nor•was this, we may be sure, left for extreme necessity, or thought to require a long-enduring forbearance. In modern times, a king, compelled by his subjects' swords toabandon any pretension, would be supposed to have ceased to reign ; and the expressrecognition of such a right as that of insurrection has been justly deemed inconsistentwith the majesty of law. But ruder ages had ruder sentiments. Force was necessaryto repel force ; and men accustomed to see the king's authority defied by a private riot,were not much shocked when it was resisted in defence of public freedom." —3 MiddleAgm. 240-3.

2*

1 8 TRIAL BY JUBY.

the people will judge of the conduct of the government, andthat, as they have the right, they will also have the sense, touse arms, whenever the necessity of the case justifies it. Andit is a sufficient and legal defence for a person accused ofusing arms against the government, if he can show, to thesatisfaction of a jury, or even any one of a jury, that the lawhe resisted was an unjust one.

In the American State constitutions also, this right of resist-ance to the oppressions of the government is recognized, invarious ways, as a natural, legal, and constitutional right. Inthe first place, it is so recognized by provisions establishingthe trial by jury; thus requiring that accused persons shall betried by " the country," instead of the government. In thesecond place, it is recognized by many of them, as, forexample, those of Massachusetts, Maine, Vermont, Connect-icut, Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Ten-nessee, Arkansas, Mississippi, Alabama, and Florida, byprovisions expressly declaring that the people shall have theright to bear arms. In many of them also, as, for example,those of Maine, New Hampshire, Vermont, Massachusetts,New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois,Florida, Iowa, and Arkansas, by provisions, in their bills ofrights, declaring that men have a natural, inherent, andinalienable right of "defending their lives and liberties."This, of course, means that they have a right to defend themagainst any injustice on the part of the government, and notmerely on the part of private individuals; because the objectof all bills of rights is to assert the rights of individuals andthe people, as against the government, and not as againstprivate persons. It would be a matter of ridiculous superero-gation to assert, in a constitution of government, the naturalright of men to defend their lives and liberties against privatetrespassers.

Many of these bills of rights also assert the natural rightof all men to protect their property — that is, to protect itagainst the government It would be unnecessary and sillyindeed to assert, in a constitution of government, the naturalright of individuals to protect their property against thievesand robbers.


The constitutions of New Hampshire and Tennessee alsodeclare that "The doctrine of non-resistance against arbitrarypower and oppression is absurd, slavish, and destructive ofthe good and happiness of mankind."

The legal effect of these constitutional recognitions of theright of individuals to defend their property, liberties, and lives,against the government, is to legalize resistance to all injusticeand oppression, of every name and nature whatsoever, on thepart of the government.

But for this right of resistance, on the part of the people,all governments would become tyrannical to a degree of whichfew people are aware. Constitutions are utterly worthless torestrain the tyranny of governments, unless it be understoodthat the people will, by force, compel the government to keepwithin the constitutional limits. Practically speaking, nogovernment knows any limits to its power, except theendurance of the people. But that the people are strongerthan the government, and will resist in extreme cases, our gov-ernments would be little or nothing else than organized systemsof plunder and oppression. All, or nearly all, the advantagethere is in fixing any constitutional limits to the power of agovernment, is simply to give notice to the government of thepoint at which it will meet with resistance. If the people arethen as good as their word, they may keep the governmentwithin the bounds they have set for it; otherwise it will disre-gard them — as is proved by the example of all our Americangovernments, in which the constitutions have all become obso-lete, at the moment of their adoption, for nearly or quite allpurposes except the appointment of officers, who at oncebecome practically absolute, except so far as they are restrainedby the fear of popular resistance.

The bounds set to the power of the government, by the trialby jury, as will hereafter be shown, are these — that the gov-ernment shall never touch the property, person, or natural orcivil rights of an individual, against his consent, (except forthe purpose of bringing them before a jury for trial,) unless inpursuance and execution of a judgment, or decree, renderedby a jury in each individual case, upon such evidence, andsuch law, as are satisfactory to their own understandings andconsciences, irrespective of all legislation of the government.

C H A P T E R II.

THE TBIAL BY JURY, AS DEFINED BY MAGNA CARTA.

THAT the trial by jury is all that has been claimed for it inthe preceding chapter, is proved both by the history and thelanguage of the Great Charter of English Liberties, to whichwe are to look for a true definition of the trial by jury, andof which the guaranty for that trial is the vital, and mostmemorable, part

S E C T I O N I .

The History of Magna Carta.

In order to judge of the object and meaning of that chapterof Magna Carta which secures the trial by jury, it is to beborne in mind that, at the time of Magna Carta, the king (withexceptions immaterial to this discussion, but which will appearhereafter) was, constitutionally, the entire government; thesole legislative, judicial, and executive power of the nation.The executive and judicial officers were merely his servants,appointed by him, and removable at his pleasure. In additionto this, " the king himself often sat in his court, which alwaysattended his person. He there heard causes, and pronouncedjudgment; and though he was assisted by the advice of othermembers, it is not to be imagined that a decision could beobtained contrary to his inclination or opinion."* Judgeswere in those days, arid afterwards, such abject servants ofthe king, that " we find that King Edward I. (1272 to 1307)fined and imprisoned his judges, in the same manner as Alfredthe Great, among the Saxons, had done before him, by thesole exercise of his authority."!

• 1 Home, Appendix 2. t Crabbe's History of the English Law, 236.

HISTORY OF MAGNA CARTA. 2 1

Parliament, so far as there was a parliament, was a merecouncil of the king.* It assembled only at the pleasure of theking; sat only during his pleasure; and when sitting had nopower, so far as general legislation was concerned, beyondthat of simply advising the king. The only legislation towhich their assent was constitutionally necessary, was demandsfor mouey and military services for extraordinary occasions.Even Magna Carta itself makes no provisions whatever forany parliaments, except when the king should want means tocarry on war, or to meet some other extraordinary necessity,fHe had no need of parliaments to raise taxes for the ordinarypurposes of government; for his revenues from the rents of thecrown lands and other sources, were ample for all exceptextraordinary occasions. Parliaments, too, when assembled,consisted only of bishops, barons, and other great men of thekingdom, unless the king chose to invite others.J There wasno House of Commons at that time, and the people had noright to be heard, unless as petitioners.^

* Coke says, " The king of England is armed with divers councils, one whereof isealled commune concilium, (the common council,) and that is the oourt of parliament,and so it is legally called in write and judicial proceedings commune concilium regniAnglioe, (the common council of the kingdom of England.) And another is calledmagnum concilium, (great council;) this is sometimes applied to the upper house ofparliament, and sometimes, out of parliament time, to the peers of the realm, lords ofparliament, who are called magnum concilium regis, (the great council of the king;)* * Thirdly, (as every man knoweth,) the king hath a privy council for matters ofstate. * * The fourth council of the king are his judges for law matters."

1 Coke's Institutes, 110 a.t The Great Charter of Henry III., (1216 and 1225,) confirmed by Edward I., (1297,)

makes no provision whatever for, or mention of, a parliament, unless the provision,(Ch. 37,) that " Escuage, (a military contribution,) from henceforth shall be taken likeas it was wont to be in the time of King Henry our grandfather," mean that a parlia-ment shall be summoned for that purpose.

$ The Magna Carta of John, (Ch. 17 and 18,) defines those who were entitled to besummoned to parliament, to wit, " The Archbishops, Bishops, Abbots, Earls, and GreatBarons of the Realm, * * and all others who hold of us in chief.** Those who heldland of the king in chief included none below the rank of knights.

§ The parliaments of that time were, doubtless, such AS Carlyle describes them, whenhe says, " The parliament was at first a most simple assemblage, quite cognate to thesituation; that Red William, or whoever had taken on him the terrible task of beingKing of England, was wont to invite, oftenest about Christmas time, his subordinateKinglets, Barons as he called them, to give him the pleasure of their company for aweek or two ; there, in earnest conference all morning, in freer talk over Christmas

2 2 TRIAL BY JURY.

Even when laws were made at the time of a parliament,they were made in the name of the king alone. Sometimesit was inserted in the laws, that they were made with theconsent or advice of the bishops, barons, and others assem-bled; but often this was omitted. Their consent or advicewas evidently a matter of no legal importance to the enact-ment or validity of the laws, but only inserted, when insertedat all, with a view of obtaining a more willing submissionto them on the part of the people. The style of enactmentgenerally was, either " The King wills and commands," orsome other form significant of the sole legislative authorityof the king. The king could pass laws at any time when itpleased him. The presence of a parliament was wholly un-necessary. Hume says, " It is asserted by Sir Harry Spelman,as an undoubted fact, that, during the reigns of the Normanprinces, every order of the king, issued with the consent of hisprivy council, had the full force of law." * And other author-ities abundantly corroborate this assertion.f

The king was, therefore, constitutionally the government ;and the only legal limitation upon his power seems to havebeen simply the Common Law, usually called " the law of theland" which he was bound by oath to maintain; (which oathhad about the same practical value as similar oaths havealways had.) This "law of the land" seems not to havebeen regarded at all by many of the kings, except so far asthey found it convenient to do so, or were constrained toobserve it by the fear of arousing resistance. But as all peopleare slow in making resistance, oppression and usurpation oftenreached a great height; and, in the case of John, they hadbecome so intolerable as to enlist the nation almost universallyagainst him; and he was reduced to the necessity of com-plying with any terms the barons saw fit to dictate to him.

It was under these circumstances, that the Great Charter of

«heer all eTromg, in some big royal hall of Weitminiter, Winchester, or wherever itmight be, with log fin*, huge round* of Mart and boiled, not tanking malmsey andother generoos liquor, they took oounsel ooneerning the arduous mutton of thekingdom."

• H U M , Appendix 2.f Thk point will be more fully established hereafter.

HISTORY OF MAGNA CART A. 23

English Liberties was granted. The barons of England, sus-tained by the common people, having their king in theirpower, compelled him, as the price of his throne, to pledgehimself that he would punish no freeman for a violation ofany of his laws, unless with the consent of the peers — thatis, the equals — of the accused.

The question here arises, Whether the barons and peopleintended that those peers (the jury) should be mere puppetsin the hands of the king, exercising no opinion of their ownas to the intrinsic merits of the accusations they should try, orthe justice of the laws they should be called on to enforce ?Whether those haughty and victorious barons, when they hadtheir tyrant king at their feet, gave back to him his throne,with full power to enact any tyrannical laws he might please,reserving only to a jury (uthe country") the contemptibleand servile privilege of ascertaining, (under the dictation ofthe king, or his judges, as to the laws of evidence), thesimple fact whether those laws had been transgressed? Wasthis the only restraint, which, when they had all power intheir hands, they placed upon the tyranny of a king, whoseoppressions they had risen in arms to resist? Was it to obtainsuch a charter as that, that the whole nation had united, as itwere, like one man, against their king? Was it on such acharter that they intended to rely, for all future time, for thesecurity of their liberties? No. They were engaged in nosuch senseless work as that. On the contrary, when theyrequired him to renounce forever the power to punish anyfreeman, unless by the consent of his peers, they intendedthose peers should judge of, and try, the whole case on itsmerits, independently of all arbitrary legislation, or judicialauthority, on the part of the king. In this way they took theliberties of each individual — and thus the liberties of thewhole people — entirely out of the hands of the king, and outof the power of his laws, and placed them in the keeping ofthe people themselves. And this it was that made the trialby jury the palladium of their liberties.

The trial by jury, be it observed, was the only real barrierinterposed by them against absolute despotism. Could thistrial, then, have been such an entire farce as it necessarily

2 4 TRIAL BY JURY.

must have been, if the jury had had no power to judge of thejustice of the laws the people were required to obey ? Did itnot rather imply that the jury were to judge independentlyand fearlessly as to everything involved in the charge, andespecially as to its intrinsic justice, and thereon give theirdecision, (unbiased by any legislation of the king,) whetherthe accused might be punished ? The reason of the thing, noless than the historical celebrity of the events, as securing theliberties of the people, and the veneration with which the trialby jury has continued to be regarded, notwithstanding itsessence and vitality have been almost entirely extracted fromit in practice, would settle the question, if other evidences hadleft the matter in doubt.

Besides, if his laws were to be authoritative with the jury,why should John indignantly refuse, as at first he did, togrant the charter, (and finally grant it only when brought tothe last extremity,) on the ground that it deprived him of allpower, and left him only the name of a king 1 He evidentlyunderstood that the juries were to veto his laws, and paralyzehis power, at discretion, by forming their own opinions as tothe true character of the offences they were to try, and thelaws they were to be called on to enforce; and that "theking wills and commands" was to have no weight with themcontrary to their own judgments of what was intrinsicallyright.*

The barons and people having obtained by the charter allthe liberties they had demanded of the king, it was further

• It is plain that theking and all his partisans looked upon the oharter as utterlyprostrating the king's legislative supremacy before the discretion of juries. When theschedule of liberties demanded by the barons was shown to him, (of which the trial byjury was the most important, because it was the only one that protected all the rest,)" the king, falling into a violent passion, asked, Why the barons did not with these ex-action* demand his kingdom? * * and with a solemn oath protested, that he would nevergrant such liberties as would make himself a slave." * * But afterwards, " seeing him-self deserted, and fearing they would seize his castles, he sent the Earl of Pembrokeand other faithful messengers to them, to let them know he would grant them the lawsand liberties they desired." • * But after the oharter had been granted, " the king'smercenary soldiers, desiring war more than peace, were by their leaders continuallywhispering in bis ears, that he was now no longer king, but the scorn of other princes; andthat it was more eligible to be no king, than such a one as he." * * He applied " t o the

LANGUAGE OF MAGNA CARTA. 25

provided by the charter itself that twenty-five barons shouldbe appointed by the barons, out of their number, to keep specialvigilance in the kingdom to see that the charter was observed,with authority to make war upon the king in case of its vio-lation. The king also, by the charter, so far absolved allthe people of the kingdom from their allegiance to him, as toauthorize and require them to swear to obey the twenty-fivebarons, in case they should make war upon the king for in-fringement of the charter. It was then thought by the baronsand people, that something substantial had been done for thesecurity of their liberties.

This charter, in its most essential features, and without anyabatement as to the trial by jury, has since been confirmedmore than thirty times; and the people of England havealways had a traditionary idea that it was of some value as aguaranty against oppression. Yet that idea has been an entiredelusion, unless the jury have had the right to judge of thejustice of the laws they were called on to enforce.

S E C T I O N I I .

The Language of Magna Carta.

The language of the Great Charter establishes the samepoint that is established by its history, viz., that it is the rightand duty of the jury to judge of the justice of the laws.

Pope, that he might by his apostolic authority make void what the barons had done.* * At Rome he met with what success he could desire, where all the transactionswith the barons were fully represented to the Pope, and the Charter of Liberties shownto him, in writing; which, when he bad carefully perused, he, with a furious look, criedout, What ! Do the baron* of England endeavor to dethrone a king, who has taken uponhim the Holy Cross, and is under the protection of the Apostolic See ; and would they forceturn to transfer the dominions of the Roman Church to others ? By St. Peter, this injury mustnot pass unpunished. Then debating the matter with the cardinals, he, by a definitivesentence, damned and cassated forever the Charter of Liberties, and sent the king a bullcontaining that sentence at large."— Echard't History of England, p. 106-7.

These things show that -the nature and effect of the charter were well understood bythe king and his friends; that they all agreed that he was effectually stripped of power.Yet the legislative power had not beat taken from him; but only the power to enforce his laws,mmUss juries should fredy consent to their enforcement.

3

2 6 TRIAL BY JURY.

The chapter guaranteeing the trial by jury is in thesewords:

" Nullus liber homo capiatur, vel imprteonetur, aut disseise-tur, aut utlagetur, aut exuletur, aut aliqno modo destruaturjnee super eum ibimus, nee super eum mittemus, nisi per legalejudicium parium suorum. vel per legem terrse."*

The corresponding chapter in the Great Charter, grantedby Henry III., (1225,) and confirmed by Edward I , (1297,)(which charter is now considered the basis of the Englishlaws and constitution,) is in nearly the same words, as follows:

" Nullus liber homo capiatur, vel imprisonetnr, aut disseise-tur de libero tenemento, vel libertatibus, vel liberis consnetu-dinibus suis, aut utlagetur, aut exuletur, aut aliquo modo de-struatur, nee super eum ibimus, nee super eum mittemus, nisiper legale judicium parium suorum, vel per legem terrse."

The most common translation of these words, at the presentday, is as follows:

"No freeman shall be arrested, or imprisoned, or deprivedof his freehold, or his liberties, or free customs, or outlawed,or exiled, or in any manner destroyed, nor will we (the king)pass upon him, nor condemn htm, unless by the judgment ofhis peers, or the law of the land."

" Nee super eum ibimus, nee super eum mittemus"

There has been much confusion and doubt as to the truemeaning of the words, unec super eum ibimus, nee sttper eummittemus" The more common rendering has been, u nor willwe pass upon him, nor condemn him" But some have trans-lated them to mean, " nor will we pass upon him, nor commithhx to prison." Coke gives still a different rendering, to theeffect that " No man shall be condemned at the king's suitT

either before the king in his bench, nor before any other com*missioner or judge whatsoever." f

But all these translations are clearly erroneous. In the first

• The laws were, at that time, all written in Latin.t "No man shall be condemned at the king's suit, either before the king in hfe bench,

where pleas are coram rege, (before the kingr) (and so are the words nee super eum ibirnus,to be understood,) nor before any other commissioner or judge whatsoever,, and so ar«the words nee ruper eum mittemusr to be understood, but by the judgment of his peers*that is, equals, or according to the law of the land."—2 Coke** hut,, 46.


place, "nor will we pass upon him"—meaning thereby todecide upon his guilt or innocence judicially — is not a correctrendering of the words, " nee super eum ibimus." There isnothing whatever, in these latter words, that indicates judicialaction or opinion at all. The words, in their common signifi-cation, describe physical action alone. And the true transla-tion of them, as will hereafter be seen, is, " nor wUl we proceedagainst him" executively.

In the second place, the rendering, " nar will we condemnAim," bears little or no analogy to any common, or evenuncommon, signification of the words "nee super eum milte-mus" There is nothing in these latter words that indicatesjudicial action or decision. Their common signification, likeChat of the words nee super eum ibimus, describes physicalaction alone. " Nor will we send upon {or against) him"would be the most obvious translation, and, as we shall here-after see, such is the true translation.

But although these words describe physical action, on thepart of the king, as distinguished from judicial, they never-theless do not mean, as one of the translations has it, unorwill we commit him to prison; " for that would be a mererepetition of what had been already declared by the wordsu nee imprisonetur." Besides, there is nothing about prisonsin the words "nee super eum mittemus;" nothing aboutsending him anywhere; but only about sending (somethingor somebody) upon him, or against him — that is, executively.

Coke's rendering is, if possible, the most absurd and gratu-itous of all. What is there in the words, unec super eumm'Utemns" that can be made to mean "nor shall he be con-demned before any other commissioner or judge whatsoever 7 "Clearly there is nothing. The whole rendering is a sheerfabrication. And the whole object of it is to give color for theexercise of & judicial power, by the king, or his judges, whichis nowhere given them.

Neither the words, " nee super eum ibimus f nee sit per evmmitlemus" nor any other words in the whole chapter, author-ize, provide for, describe, or suggest, any judicial action what-ever, on the part either of the king, or of his judges, or ofanybody, except the peersi or jury. There is nothing about

28 TRIAL BY JTJKY,

the king's judges at all. And there is nothing whatever,in the whole chapter, so far as relates to the action of theking, that describes or suggests anything but executive action.*

But that all these translations are certainly erroneous, isproved by a temporary charter, granted by John a short timeprevious to the Great Charter, for the purpose of giving anopportunity for conference, arbitration, and reconciliationbetween him and his barons. It was to have force until thematters in controversy between them could be submitted tothe Pope, and to other persons to be chosen, some by the king,and some by the barons. The words of the charter are a*follows:

"Sciatis nos concessisse baron ibtis nostris qni contra no*sunt quod nee eos nee homines suos capiemusf nee d>sseisie~mus nee super eos per vim vel per arma ibimus nisi per tegemregni nostri vel per judicium parium suorutn in curia nostradonee consideratio facta fuerit," &c., &c.

That isy " Know that we have granted to our barons who*are opposed to us> that we will neither- arrest them nor. theirmen, nor disseize them, nor will we proceed against them byforce or by arms, unless by the law of our kingdom, or by thejudgment of their peers in our court, until consideration shallbe had," &cM &c,

A copy of this charter is given in a note in Blackstone'sIntroduction to the Charters, f

Mr. Christian speaiks of this ebarter as settling the truemeaning of the corresponding clause of Magna Carta, on theprinciple that laws and charters on the same subject are to beconstrued with reference to each other. See 3 Christian9*Blacks tone, 41, note.

• Perhaps the assertion in the text should be made with this qualification — that th»words "perlegem terra," (according to the law of the land,) and the words "per legal«judiciwn parium smntm,** (according to the legal judgment of his peers,) imply thatthe king, before proceeding to any executive aotion, will take notice of " the law of the-land," and of the legality of the judgment of the peers,, and will execute upon the-prisoner nothing except what the law of the land authorizes, and no judgments of thopeers, except legal ones. With this qualification, the assertion in the text is strictlycorrect — that there is nothing in the whole chapter that grants to the king, or hajudges, any judicial power at all. The chapter only describes and limits his executivepower.

f See Blackstone's Law Tracts, page 294, Oxford Edition,


The true meaning of the words, nee super eum ibimus, neesuper eum mittemus, is also proved by the " Articles of theGreat Charter of Liberties" demanded of the king by thebarons, and agreed to by the king, under seal, a few daysbefore the date of the Charter, and from which the Charterwas framed.* Here the words used are these:

" Ne corpus liberi hominis* capiatur nee imprisonetur needisseisetur nee utlagetur nee exuJetur nee aliquo modo des-truatur nee rexeatvel mittat super eum vi nisi per judiciumpariutn suorura vel per legem terras."

That is, " The body of a freeman shall not be arrested, norimprisoned, nor disseized, nor outlawed, nor exiled, nor in anymanner destroyed, nor shall the king proceed or send {anyone) against kirn WITH FORCE, unless by the judgment of hispeers, or the law of the land."

The true translation of the words nee super eum ibimus, neesuper eum mittemus, in Magna Carta, is thus made certain, asfollows, " nor will we {the king) proceed against him, nor send(anyone) against him WITH FORCE OR ARMS."!

It is evident that the difference between the true and falsetranslations of the words, nee super eum ibimus, nee super eummiltemus, is of the highest legal importance, inasmuch as thetrue translation, nor ivill we {the king) proceed against him,nor send {any one) against him by force or arms, representsthe king only in an executive character, carrying the judgmentof the peers and uthe law of the la?id" into execution ; where-as the false translation, nor will we pass upon him, nor condemnhim, gives color for the exercise of a judicial power, on the

• These Articles of the Charter are given in Blackstone's collection of Charters, andare also printed with the Statutes of the Realm. Also in Wilkins' Lows of the Anglo-Saxons, p. 356.

t Lingard says, ** The words, * We trill not destroy him, nor will we go upon him, norwill we send upon him,' have been very differently expounded by different legal author-ities. Their real meaning may be learned from John himself, who the next yearpromisod by his letters patent . . . nee super eos per vim. vel per arma ibimus, nisi periegem regni nostri, vel per judicium parium suoruin in curia nostra, (nor will we go•upon them by force or by arms, unless by the law of our kingdom, or the judgment oftheir peers in our court.) Pat. 16 Johan, apud Drad. 11, app, no. 124. He had hith-erto been in the habit of going with an armed force, or sending an armed force on thelands, and against the castles, of all whom he knew or suspected to be his secret

without observing any form of law."—3 Iingard, 47 note.

3 0 TRIAL BY JURY.

part of the king, to which the king had no right, but which,according to the true translation, belongs wholly to the jury.

" Per legate judicium parium suorum."

The foregoing interpretation is corroborated, (if it were notalready too plain to be susceptible of corroboration,) by thetrue interpretation of the phrase "per legate judicium parium,suorum."

In giving this interpretation, I leave out, for the present, theword legate, which will be defined afterwards.

The true meaning of the phrase, per judicium pariumsuorum, is, according to the sentence of his peers. The wordjudicium, judgment, has a technical meaning in the law, sig-nifying the decree rendered in the decision of a cause. Incivil suits this decision is called a judgment; in chanceryproceedings it is called a decree; in criminal actions it is calleda sentence, ox judgment, indifferently. Thus, in a criminalsuit, "a motion in arrest of judgment," means a motion inarrest of sentence.*

In cases of sentence, therefore, in criminal suits, the wordssentence and judgment are synonymous terms. They are, tothis day, commonly used in law books as synonymous terms.And the phrase per judicium parium suorum, therefore, im-plies that the jury are to fix the sentence.

The word per means according to. Otherwise there is nosense in the phrase per judicium parium suorum. There

* "Judgment, judicium. * * The sentence of the law, pronounced by the court,upon the matter contained in the record." — 3 Blackstone, 395. Jacob's Law Dictionary.Tomlin', do.

" Judgment is the decision or sentence of the law, given by a court of justice or othercompetent tribunal, as the result of the proceedings instituted therein, for the redressof an injury." — Bouvier's Law Diet.

" Judgment, judicium. * * Sentence of a judge against a criminal. * * De-termination, decision in general." — Bailey's Diet.

" Judgment. • * In a legal sense, a sentence or decision pronounced by authorityof a king, or other power, either by their own mouth, or by that of their judges andofficers, whom they appoint to administer justice in their stead."— Chambers' Diet.

" Judgment. • • In law, the sentence or doom pronounced in any case, civil orcriminal, by the judge or court by which it is tried."— Webster's Diet.

Sometimes the punishment itself is called judicium, judgment ; or, rather, it was atthe time of Magna Carta. For example, in a statute passed fifty-one yean after

LANGUAGE OF MAGNA CARTA. 3 1

would be no sense in saying that a king might imprison, dis-seize, outlaw, exile, or otherwise punish a man, or proceedagainst him, or send any one against him, by force or arms, bya judgment of his peers; but there is sense in saying that theking may imprison, disseize, and punish a man, or proceedagainst him, or send any one against him, by force or arms,according to a judgment, or sentence, of his peers; because inthat case the king would be merely carrying the sentence orjudgment of the peers into execution.

The word per, in the phrase "per judicium parium suo-rum," of course means precisely what it does in the nextphrase, "per legem terrse;" where it obviously meansaccording to, and not by, as it is usually translated. Therewould be no sense in saying that the king might proceedagainst a man by force or arms, by the law of the land ; butthere is sense in saying that he may proceed against him, byforce or arms, according to the law of the land; because theking would then be acting only as an executive officer, carry-ing the law of the land into execution. Indeed, the truemeaning of the word by, as used in similar cases now, alwaysis according to; as, for example, when we say a thing wasdone by the government, or by the executive, by law, wemean only that it was done by them according to law ; thatis, that they merely executed the law.

Or, if we say that the word by signifies by authority of, theresult will still be the same; for nothing can be done by au-thority of law, except what the law itself authorizes or directs

Magna Carta, it was said that a baker, for default in the weight of his bread, " debeatameroiari yel subire judicium pillorie;" that is, ought to be amerced, or suffer the pun-ishment, or judgment, of the pillory. Also that a brewer, for " selling ale contrary tothe assiie," "debeat ameroiari, vel pati judicium tumbrelli"; that is, ought to beamerced, or suffer the punishment, or judgment, of the tumbrel. — 51 Henry 3, St. 6.(1266.)

Also the "Statutes of uncertain date," (but supposed to be prior to Edward III., or1326,) provide, in chapters 6, 7, and 10, for "judgment of the pillory."— See 1 Ruff-head's Statute*, 187, 188. 1 Statutes of the Realm, 203.

Blackstone, in his chapter " Of Judgment, and its Consequences," says,"Judgment (unless any matter be offered in arrest thereof) follows upon conviction;

being the pronouncing of that punishment which is expressly ordained by law."—Stockton*** Analysis of the Law of England, Book 4, Ch. 29, Sec. 1. Blockstone'sLaw Tract*, 126.

Coke says, "Judicium . . the judgment is the guide and direction of the execution."3 But. 210.

3 2 TRIAL BY JURY.

to be done; that* is, nothing can be done by authority of law,except simply to carry the law itself into execution. So nothingcould be done by authority of the sentence of the peers, or byauthority of " the law of the land/' except what the sentenceof the peers, or the law of the land, themselves authorized ordirected to be done; nothing, in short, but to carry the sen-tence of the peers, or the law of the land, themselves intoexecution.

Doing a thing by law, or according to law, is only carryingthe law into execution. And punishing a man by, or accordingto, the sentence or judgment of his peers, is only carrying thatsentence or judgment into execution.

If these reasons could leave any doubt that the word per isto be translated according to, that doubt would be removedby the terms of an antecedent guaranty for the trial by jury,granted by the Emperor Conrad, of Germany,* two hundredyears before Magna Carta. Blackstone cites it as follows: —(3 Blackstone, 350.)

"Nemo beneficium suum perdat, nisi secundum consuetu-dinem antecessorum nostrorum, et judicium parium suorum."That is, No one shall lose his estate, f unless according to("secundum") the custom (or law) of our ancestors, and(according to) the sentence (or judgment) of his peers.

The evidence is therefore conclusive that the phrase per ju-dicium parium suorum means according to the sentence of hispeers; thus implying that the jury, and not the government,are to fix the sentence.

If any additional proof were wanted that juries were to fixthe sentence, it would be found in the following provisions ofMagna Carta, viz.:

"A freeman shall not be amerced for a small crime, (delicto,)but according to the degree of the crime; and for a great crimein proportion to the magnitude of it, saving to him his contene-

* This precedent from Germany is good authority, because the trial by jury was inuse, in the northern nations of Europe generally, long before Magna Carta, and probablyfrom time immemorial; and the Saxons and Normans were familiar with it beforethey settled in England.

t Beneficium was the legal name of an estate held by a feudal tenure. See Spel-uan'8 Glossary.


ment;* and after the same-manner a merchant, saving tohim his merchandise. And a villein shall be amerced afterthe same manner, saving to him his waynage,f if he fall underour mercy; and none of the aforesaid amercements shall be im-posed, (or assessed, ponatur,) but by the oath of honest men ofthe neighborhood. Earls and Barons shall not be amerced butby their peers, and according to the degree of their crime." %

Pecuniary punishments were the most common punish-ments at that day, and the foregoing provisions of MagnaCarta show that the amount of those punishments was to befixed by the jury.

Fines went to the king, and were a source of revenue; andif the amounts of the fines had been left to be fixed by theking, he would have had a pecuniary temptation to imposeunreasonable and oppressive ones. So, also, in regard to otherpunishments than fines. If it were left to the king to fix thepunishment, he might often have motives to inflict cruel andoppressive ones. As it was the object of the trial by jury toprotect the people against all possible oppression from the king,it was necessary that the jury, and not the king, should fixthe punishments. $

"Legate."The word "legate" in the phrase "per legate judicium

• Contentment of a freeman was the means of living in the condition of a freeman.f Waynage was a villein's plough-tackle and carts.% Tomlin says," The ancient practice was, when any such fine was imposed, to inquire

by a jury quantum inde regi dare valeat per annum, salva sustentatione sua et uxoris et libe-rorum suorum, (how much is he able to give to the king per annum, saving his ownmaintenance, and that of his wife and children). And since the disuse of such inquest,it is never usual to assess a larger fine than a man is able to pay, without touching theimplements of his livelihood ; but to inflict corporal punishment, or a limited imprison-ment, instead of such a fine as might amount to imprisonment for life. And this is thereason why fines in the king's courts are frequently denominated ransoms, because thepenalty must otherwise fall upon a man's person, unless it be redeemed or ransomed bya pecuniary fine."— Tomlin's Law Diet., word Fine.

§ Because juries were to fix the sentence, it must not be supposed that the king wasobliged to carry the sentence into execution ; but only thai he could not go beyond the sen~fence. He might pardon, or he might acquit on grounds of law, notwithstanding thesentence ; but he could not punish beyond the extent of the sentence. Magna Cartadoes not prescribe that the king shall punish according to the sentence of the peers ;but only that he shall not punish " unless according to " that sentence. He may acquitor pardon, notwithstanding their sentence or judgment; but he cannot punish, exceptaccording to their judgment.

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parium suorum" doubtless means two things. 1. That thesentence must be given in a legal manner; that is, by the legalnumber of jurors, legally empanelled and sworn to try thecause; and that they give their judgment or sentence after alegal trial, both in form and substance, has been had. 2. Thatthe sentence shall be for a legal cause or offence. If, there-fore, a jury should convict and sentence a man, either withoutgiving him a legal trial, or for an act that was not really andlegally criminal, the sentence itself would not be legal; aridconsequently this clause forbids the king to carry such a sen-tence into execution; for the clause guarantees that he willexecute no judgment or sentence, except it be legate judicium,a legal sentence. Whether a sentence be a legal one, wouldhave to be ascertained by the king or his judges, on appeal, ormight be judged of informally by the king himself.

The word "legate" clearly did not mean that the judiciumparium suorum (judgment of his peers) should be a sentencewhich any law (of the king) should require the peers to pro-nounce; for in that case the sentence would not be the sentenceof the peers, but only the sentence of the law, (that is, of theking); and the peers would be only a mouthpiece of the law,(that is, of the king,) in uttering it.

" Per legem terrce."One other phrase remains to be explained, viz., uper legem,

terra," "by the law of the land."All writers agree that this means the common law. Thus,

Sir Matthew Hale says:" The common law is sometimes called, by way of eminence,

lex terrce, as in the statute of Magna Carta, chap. 29, wherecertainly the common law is principally intended by thosewords, aut per legem terrce; as appears by the expositionthereof in several subsequent statutes; and particularly in thestatute of 28 Edward III., chap. 3, which is but an expositionand explanation of that statute. Sometimes it is called lexAnglice, as in the statute of Merton, cap. 9, " Nolumus legesAngllce mutari" &c., (We will that the laws of England benot changed). Sometimes it is called lex et consuetudo regni(the law and custom of the kingdom); as in all commissionsof oyer and terminer; and in the statutes of IS Edward I.,cap. —, and de quo warranto, and divers others. But most


commonly it is called the Common Law, or the Common Lawof England; as in the statute Articuli super Charters, cap. 15,in the statute 25 Edward III., cap. 5, (4,) and infinite morerecords and statutes." — 1 Hole's History of the CommonLaw, 128.

This common law, or " law of the Jand," the king wassworn to maintain. This fact is recognized by a statute madeat Westminster, in 1346, by Edward III., which commencesin this manner:

" Edward, by the Grace of God, &c, &c, to the Sheriff ofStafford, Greeting: Because that by divers complaints madeto us, we have perceived that the law of the land, which we byoath are bound to maintain" &c. — St. 20 Edward HI.

The foregoing authorities are cited to show to the unprofes-sional reader,what is well known to the profession, that legemterra,, the lato of the land, mentioned in Magna Carta, was thecommon, ancient, fundamental law of the land, which thekings were bound by oath to observe; and that it did not includeany statutes or laws enacted by the king himself , the legislativepower of the nation.

If the term legem terrce had included laws enacted by theking himself, the whole chapter of Magna Carta, now underdiscussion, would have amounted to nothing as a protection toliberty; because it would have imposed no restraint whateverupon the power of the king. The king could make laws atany time, and such ones as he pleased. He could, therefore,have done anything he pleased, by the law of the land, as wellas in any other way, if his own laws had been " the law of theland." If his own laws had been "the law of the land,"within the meaning of that term as used in Magna Carta, thischapter of Magna Carta would have been sheer nonsense, in-asmuch as the whole purport of it would have been simplythat " no man shall be arrested, imprisoned, or deprived of hisfreehold, or his liberties, or free customs, or outlawed, orexiled, or in any manner destroyed (by the king); nor shallthe king proceed against him, nor send any one against himwith force and arms, unless by the judgment of his peers, orunless the king shall please to do so.1'

This chapter of Magna Carta would, therefore, have imposednot the slightest restraint upon the power of the king, or

36 TRIAL BY JURY.

afforded the slightest protection to the liberties of the people,if the laws of the king had been embraced in the term legemterra. But if legem terra was the common law, which theking was sworn to maintain, then a real restriction was laidupon his power, and a real guaranty given to the people fortheir liberties.

Such, then, being the meaning of legem terra, the fact isestablished that Magna Carta took an accused person entirelyout of the hands of the legislative power, that is, of the king;and placed him in the power and under the protection of hispeers, and the common law alone; that, in short, Magna Cartasuffered no man to be punished for violating any enactment ofthe legislative power, unless the peers or equals of the accusedfreely consented to it, or the common law authorized it; thatthe legislative power, of itself was wholly incompetent torequire the conviction or punishment of a man for any offencewhatever.

Whether Magna Carta allowed of any other trial than byjury.

The question here arises, whether "legem terra" did notallow of some other mode of trial than that by jury.

The answer is, that, at the time of Magna Carta, it is notprobable, (for the reasons given in the note,) that legem terraauthorized, in criminal cases, any other trial than the trial byjury; but, if it did, it certainly authorized none but the trialby battle, the trial by ordeal, and the trial by compurgators.These were the only modes of trial, except by jury, that hadbeen known in England, in criminal cases, for some centuriesprevious to Magna Carta. All of them had become nearlyextinct at the time of Magna Carta, and it is not probable thatthey were included in "legem terra" as that term is used inthat instrument. But if they were included in it, they havenow been long obsolete, and were such as neither this nor anyfuture age will ever return to.* For all practical purposes of

* The trial by battle was one in which the accused challenged his aoenser to singleoombat, and staked the question of his guilt or innocence on the result of the duel.This trial was introduced into England by the Normans, within one hundred and fiftyyean before Magna Carta. It was not very often resorted to even by the Normans


the present day, therefore, it may be asserted that MagnaCarta allows no trial whatever but trial by jury.

Whether Magna Carta allowed sentence to be fixed otherwisethan by the jury.

Still another question arises on the words legem terrce, viz.,whether, in cases where the question of guilt was determinedby the jury, the amount of punishment may not have beenfixed by legem terrce, the Common Law, instead of its beingfixed by the jury.

I think we have no evidence whatever that, at the time ofMagna Carta, or indeed at any other time, lex terrce, the com-

themselves; probably never by the Anglo-Saxons, unless in their controversies with theNormans. It was strongly discouraged by some of the Norman princes, particularlyby Henry II., by whom the trial by jury was especially favored. It is probable thatthe trial by battle, so far as it prevailed at all in England, was rather tolerated as amatter of chivalry, than authorized as a matter of law. At any rate, it is not likelythat it was included in the " legem terras " of Magna Carta, although such duels haveoccasionally occurred since that time, and have, by some, been supposed to be lawful.I apprehend that nothing can be properly said to be a part of lex terra, unless it canbe shown either to have been of Saxon origin, or to have been recognized by MagnaCarta.

The trial by ordeal was of various kinds. In one ordeal the accused was required totake hot iron in his hand; in another to walk blindfold among red-hot ploughshares ;in another to thrust his arm into boiling water ; in another to be thrown, with hishands and feet bound, into cold water ; in another to swallow the morsel of execration;in the confidence that his guilt or innocence would be miraculously made known. Thismode of trial was nearly extinct at the time of Magna Carta, and it is not likely that itwas included in " legem terrce," as that term is used in that instrument. This idea iscorroborated by the fact that the trial by ordeal was specially prohibited only fouryears after Magna Carta, " by act of Parliament in 3 Henry III., according to Sir Ed-ward Coke, or rather by an order of the king in council." — 3 Blackstone 345, note.

I apprehend that this trial was never forced upon accused persons, but was onlyallowed to them, as an appeal to God, from the judgment of a jury.*

The trial by compurgators was one in which, if the accused could bring twelve of hisneighbors, who would make oath that they believed him innocent, he was held to be so.It is probable that this trial was really the trial by jury, or was allowed as an appealfrom a jury. It is wholly improbable that two different modes of trial, so nearlyresembling each other as this and the trial by jury do, should prevail at the same time,and among a rude people, whose judicial proceedings would naturally be of the simplestkind. But if this trial really were any other than the trial by jury, it must have beennearly or quite extinct at the time of Magna Carta; and there is no probability that itwas included in " legem terras."

* Hallam says, " It appears as if the ordeal were permitted to persons already convicted by theverdict of a jury." —2 Middle Ages, 446, note.

4

38 TRFAL BY JURY.

mon law, fixed the punishment in cases where the question ofguilt was tried by a jury; or, indeed, that it did in any othercase. Doubtless certain punishments were common and usualfor certain offences; but I do not think it can be shown thatthe common law, the lex terra, which the king was sworn tomaintain, required any one specific punishment, or any preciseamount of punishment, for any one specific offence. If sucha thing be claimed, it must be shown, for it cannot be pre-sumed. In facty the contrary must be presumed, because, inthe nature of things, the amount of punishment proper to beinflicted in any particular case, is a matter requiring the exer-cise of discretion at the time, in order to adapt it to the moralquality of the offence, which is different in each case, varyingwith the mental and moral constitutions of the offenders, andthe circumstances of temptation or provocation. And MagnaCarta recognizes this principle distinctly, as has before beenshown, in providing that freemen, merchants, and villeins," shall not be amerced for a small crime, but according to thedegree of the crime; and for a great crime in proportion to themagnitude of it;" and that "none of the aforesaid amerce-ments shall be imposed (or assessed) but by the oaths ofhonest men of the neighborhood;" and that " earls and baronsshall not be amerced but by their peers, and according to thequality of the offence."

All this implies that the moral quality of the offence was tobe judged of at the trial, and that the punishment was to befixed by the discretion of the peers, or jury, and not by anysuch unvarying rule as a common law rule would be.

I thinkr therefore, it must be conceded that, in all casesr

tried by a jury, Magna Carta intended that the punishmentshould be fixed by the jury, and not by the common law, forthese several reasons.

1. It is uncertain whether the common law fixed the pun-ishment of any offence whatever.

2. The words " per judicium parium suorvm" accordingto the sentence of his peers, imply that the jury fixed the sen-tence in some cases tried by them; and if they fixed thesentence in some cases, it must be presumed they did in all,unless the contrary be clearly shown.

LANGUAGE OF MAGNA CART A. 39

3. The express provisions of Magna Carta, before advertedto, that no amercements, or fines, should be imposed uponfreemen, merchants, or villeins, " but by the oath of honestmen of the neighborhood," and " according to the degree ofthe crime," and that " earls and barons should not be amercedbut by their peers, and according to the quality of theoffence," proves that, at least, there was no common lawfixing the amount of fines, or, if there were, that it was to beno longer in force. And if there was no common law fixingthe amount of fines, or if it was to be no longer in force, it isreasonable to infer, (in the absence of all evidence to the con-trary,) either that the common law did not fix the amount ofany other punishment, or that it was to be no longer in forcefor that purpose.*

Under the Saxon laws, fines, payable to the injured party,seem to have been the common punishments for all offences.Even murder was punishable by a fine payable to the relativesof the deceased. The murder of the king even was punishable

* Coke attempts to show that there is a distinction between amercements and fines —admitting that amercements must be fixed by one's peers, but claiming that fines maybe fixed by the government. (2 hut. 27, 8 Coke's Reports 38.) But there seems tohare been no ground whatever for supposing that Any «ueh distinction existed at thetime of Magna Carta. If there were any such distinction in the time of Coke, it haddoubtless grown up within the four centuries that had elapsed since Magna Carta, andis to be set down as one of the numberless indentions of government for getting rid ofthe restraints of Magna Carta, and for taking men out of the protection of their peers,and subjecting them to sueh punishments as the government chooses to inflict.

The first statute of Westminster, passed sixty years after Magna Carta, treats thefine and amercement as synonymous, as follows:

" Forasmuch as the common fine and amercement of the whole county in Eyre of thejustices for false judgments, or for other trespass, is unjustly assessed by sheriffs andbaretors in the shires, * * it is provided, and the king wills, that from henceforth suchcums shall be assessed before the justices in Eyre, afore their departure, by the oath ofknights and other honest men," Ac —3 Edward / . , Ch. 18. <1275.)

And in many other statutes passed after Magna Carta, the terms fine and amercementseem to be used indifferently, in prescribing the punishments for offences. As late as1461, (246 years after Magna Carta,) the statute 1 Edward IV^ Ch. 2, speaks of " fine*,ransoms* and amerciaments " as being levied upon criminals, as if they were the commonpunishments of offences.

St. 2 and 3 Philip and Mary, Ch. 8, uses the terms, "fines, forfeitures, and anurci*-meats" five times. (1555.)

St. 5 Elizabeth, Ch. 13, Sec. 10, uses the terms " fines, forfeitures, and amercianunt*."That amercements were fines, or pecuniary punishments, inflicted for offences, is

proved by the following statutes, (all supposed to have been passed within one hundred

4 0 TRIAL BY JURY.

by fine. When a criminal was unable to pay his fine, his rel-atives often paid it for him. But if it were not paid, he wasput out of the protection of the law, and the injured parties,(or, in the case of murder, the kindred of the deceased,) wereallowed to inflict such punishment as they pleased. And ifthe relatives of the criminal protected him, it was lawful totake vengeance on them also. Afterwards the custom grewup of exacting fines also to the king as a punishment foroffences.* And this latter was, doubtless, the usual punish-ment at the time of Magna Carta, as is evidenced by the factthat for many years immediately following Magna Carta,nearly or quite all statutes that prescribed asny punishmentat all, prescribed that the offender should "be grievouslyamerced," or " pay a great fine to the king," or a " grievousransom," — with the alternative in some cases (perhaps un-derstood in all) of imprisonment, banishment, or outlawry, incase of non-payment, f

and fifteen years after Magna Carta,) which speak of amercements as a species of"judgment,'1 or punishment, and as being inflicted for the same offences as other"judgments."

Thus one statute declares that a baker, for default in the weight of his bread,"ought to be amerced,, or suffer the judgment of the pillory ; " and that a brewer, for« selling ale contrary to the assize," "ought to be amerced, or suffer the judgment ofthe tumbrel." — SI Henry III., St. 6. (1266.)

Among the « Statutes of Uncertain Date? but supposed to be prior to Edward m . »(1326,) are the following:

Chap. 6 provides that " if a brewer break the assize, (fixing the price of'ale,) thefirst, second, and third time, he shall be amerced ; but the fourth time he shall sufferjudgment of the pillory without redemption."

Chap. 7 provides that " a butcher that selleth swine's flesh measled* or flesh deadof the murrain, or that buyeth flesh of Jews, and selleth the same unto Christians*after he shall be convict thereof, for the first time he shall be grievously amerced ; thesecond time he shall suffer judgment of the pillory -„ and the third time he shall be-imprisoned and make_/me ; and the fourth tkne he shall forswear the town."

Chap. 10, a statute against forestalling, provides that,"He that is convict thereof, the first time shall be amerced, and shall lose the thing;

so bought, and that according to the custom of the town j he that is convicted the-seoond time shall have judgment of the pillory ; at the third time he shall be im-prisoned and make jine ; the fourth time he shall abjure the town. And this judgmentshall be given upon all manner of forestallers, and likewise upon them that have giventhem counsel, help, or favor." — 1 Ruffhead*s Statutes, 187, 188. 1 Statute* of th*Realm, 203.

• 1 Hume, Appendix, 1.t Blaokstone says, "Our ancient Saxon laws nominally punished theft with death,

if above the value of twelve ponce ; but the criminal was permitted to redeem bis Ufa

LANtSTJAGE OF MAGNA CARTA. 4 1

Judging, therefore, from the special provisions in MagnaCarta, requiring fines, or amercements, to be imposed only byjuries, (without mentioning any other punishments;) judging,also, from the statutes which immediately followed MagnaCarta, it is probable that the Saxon custom of punishing all,or nearly all, offences by fines, (with the alternative to thecriminal of being imprisoned, banished, or outlawed, and ex-posed to private vengeance, in case of non-payment,) continueduntil the time of Magna Carta; and that in providing expresslythat fines should be fixed by the juries, Magna Carta providedfor nearly or quite all the punishments that were expected tobe inflicted; that if there were to be any others, they were tobe fixed by the juries; and consequently that nothing was leftto be fixed by "kgern terrce."

But whether the common law fixed the punishment of anyoffences, or not, is a matter of little or no practical importanceat this day; because we have no idea of going back to anycommon law punishments of six hundred years ago, if, indeed,there were any such at that time. It is enough for us toknow — and this is what it is material for us to know —that the jury fixed the punishments, in all cases, unless theywere fixed by the common law; that Magna Carta allowed

by a pecuniary ransom, as among their ancestors, the Germans, by a stated number of«attle. But in the ninth year of Henry the First, (1109,) this power of redemption wastaken away, and all persons guilty of larceny above the value of twelve pence weredirected to be hanged, which law continues in force to this day." — 4 Blackstone, 238.

I give this statement of Blackstone, because the latter clause may seem to militate<with the idea, which the former clause corroborates, viz., that at the time of Magna Carta,fines were the usual punishments of offences. But I think there is no probability thatA law so unreasonable in itself, (unreasonable even after making all allowance for thedifference in the value of money,) and so contrary to immemorial custom, could or did•obtain any general or speedy acquiescence among a people who cared little for the au-thority of kings.

Maddox, writing of the period from William the Conqueror to John, says :** The amercements in criminal and common pleas, which were wont to bo imposed

during this first period and afterwards, were of so many several sorts, that it is not easyto place them under distinct heads. Let them, for method's sake, be reduced to theheads following: Amercements for or by reason of murders and manslaughters, formisdemeanors, for disseisins, for recreancy, for breach of assize, for defaults, for non-appearance, for false judgment, and for not making suit, or hue and cry. To themmay be added miscellaneous amercements, for trespasses of divers kinds." — 1 Mad-Am* History of the Exchequer, 642.

4*

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no punishments to be prescribed by statute — that is, by thelegislative power—nor in any other manner by the king, or hisjudges, in any case whatever; and, consequently, that all stat-utes prescribing particular punishments for particular offences,or giving the king's judges any authority to fix punishments,were void.

If the power to fix punishments had been left in the handsof the king, it would have given him a power of oppression,which was liable to be greatly abused j which there was nooccasion to leave with him; and which would have beenincongruous with the whole object of this chapter of MagnaCarta; which object was to take all discretionary or arbitrarypower over individuals entirely out of the hands of the king,and his laws, and entrust it only to the common law, and thepeers, or jury — that is, the people.

What lex terra did authorize.But here the question arises, What then did "legem terrm"

authorize the king, (that is, the government,) to do in the caseof an accused person, if it neither authorized any other trialthan that by jury, nor any other punishments than those fixedby juries ?

The answer is, that, owing to the darkness of history onthe point, it is probably wholly impossible, at this day, tostate, with any certainty or precision, anything whatever thatthe legern terrce of Magna Carta did authorize the king, (thatis, the government,) to do, (if, indeed, it authorized him to doanything,) in the case of criminals, other tha?iyto have themtried and sentenced by their peers, for common law crimes ;and to carry that sentence into execution.

The trial by jury was a part of legem terrce, and we havethe means of knowing what the trial by jury was. The factthat the jury were to fix the sentence, implies that they wereto try the accused; otherwise they could not know what sen-tence, or whether any sentence, ought to be inflicted upon him.Hence it follows that the jury were to judge of everything in-volved in the trial; that is, they were to judge of the natureof the offence, of the admissibility and weight of testimony,and of everything else whatsoever that was of the essence of


the trial. If anything whatever could be dictated to them,either of law or evidence, the sentence would not be theirs,but would be dictated to them by the power that dictated tothem the law or evidence. The trial and sentence, then, werewholly in the hands of the jury.

We also have sufficient evidence of the nature of the oathadministered to jurors in criminal cases. It was simply, thatthey would neither convict the innocent, nor acquit the guilty.This was the oath in the Saxon times, and probably continuedto be until Magna Carta.

We also know that, in case of conviction, the sentence of thejury was not necessarily final; that the accused had the rightof appeal to the king and his judges, and to demand either anew trial, or an acquittal, if the trial or conviction had beenagainst law.

So much, therefore, of the legem terrce of Magna Carta, weknow with reasonable certainty.

We also know that Magna Carta provides that "No bailiff(balivus) shall hereafter put any man to his law, (put himon trial,) on his single testimony, without credible witnessesbrought to support it." Coke thinks " that under this wordbalivuSj in this act, is comprehended every justice, minister ofthe king, steward of the king, steward and bailiff." (2 Inst. 44.)And in support of this idea he quotes from a very ancient lawbook, called the Mirror of Justices, written in the time ofEdward I., within a century after Magna Carta. But whetherthis were really a common law principle, or whether the pro-vision grew out of that jealousy of the government which, atthe time of Magna Carta, had reached its height, cannot per-haps now be determined.

We also know that, by Magna Carta, amercements, or fines,could not be imposed to the ruin of the criminal; that, in thecase of a freeman, his contenement, or means of subsisting inthe condition of a freeman, must be saved to him; that, in thecase of a merchant, his merchandise must be spared; andin the case of a villein, his waynage, or plough-tackle andcarts. This also is likely to have been a principle of thecommon law, inasmuch as, in that rude age, when the meansof getting employment as laborers were not what they are

4 4 TRIAL BY JURY.

now, the man and his family would probably have been liableto starvation, if these means of subsistence had been takenfrom him.

We also know, generally, that, at the time of Magna Carta,all acts intrinsically criminal, all trespasses against personsand property, were crimes, according to lex terrce, or thecommon law.

Beyond the points now given, we hardly know anything,probably nothing with certainty, as to what the "legemterra"of Magna Carta did authorize, in regard to crimes. Thereis hardly anything extant that can give us any real light onthe subject.

It would seem, however, that there were, even at that day,some common law principles governing arrests; and somecommon law forms and rules as to holding a man for trial,(by bail or imprisonment;) putting him on trial, such as byindictment or complaint; summoning and empanelling ju-rors, &c., &c. Whatever these common law principles were,Magna Carta requires them to be observed; for Magna Cartaprovides for the whole proceedings, commencing with thearrest, ("no freeman shall be arrested," &c.,) and ending withthe execution of the sentence. And it provides that nothingshall be done, by the government, from beginning to end, unlessaccording to the sentence of the peers, or u legem terrce," thecommon law. The trial by peers was a part of legem terra,and we have seen that the peers must necessarily have gov-erned the whole proceedings at the trial. But all the pro-ceedings for arresting the man, and bringing him to trial,must have been had before the case could come under thecognizance of the peers, and they must, therefore, have beengoverned by other rules than the discretion of the peers. Wemay conjecture, although we cannot perhaps know with muchcertainty, that the lex terra, or common law, governing theseother proceedings, was somewhat similar to the common lawprinciples, on the same points, at the present day. Such seemto be the opinions of Coke, who says that the phrase nisi perlegem terra means unless by due process of law.

Thus, he says:"Nisi per legem terra. But by the law of the land. For


the true sense and exposition of these words, see the statuteof 37 Edw. III., cap. 8, where the words, by the laxo of theland, are rendered without due process of law; for there it issaid, though it be contained in the Great Charter, that noman be taken, imprisoned, or put out of his freehold, withoutprocess of the law; that is, by indictment or presentment ofgood and lawful men, where such deeds be done in due manner,or by torit original of the common law.

" Without being brought in to answer but by due processof the common law.

" No man be put to answer without presentment before jus-tices, or thing of record, or by due process, or by writ original,according to the old law of the land." —2 Inst. 50.

The foregoing interpretations of the words nisi per legemterrce are corroborated by the following statutes, enacted inthe next century after Magna Carta.

" That no man, from henceforth, shall be attached by anyaccusation, nor forejudged of life or limb, nor his land, tene-ments, goods, nor chattels, seized into the king's hands, againstthe form of the Great Charter, and the law of the land." —St. 5 Edward III, Ch. 9. (1331.)

" Whereas it is contained in the Great Charter of the fran-chises of England, that none shall be imprisoned, nor put outof his freehold, nor of his franchises, nor free customs, unlessit be by the law of the land; it is accorded, assented, and estab-lished, that from henceforth none shall be taken by petition,or suggestion made to our lord the king, or to his council,unless it be by indictment or presentment of good and lawfulpeople of the same neighborhood where such deeds be done indue manner, or by process made by writ original at the commonlaw ; nor that none be put out of his franchises, nor of his free-hold, unless he be duly brought into answer 1 and forejudgedof the same by the course of the law ; and if anything be doneagainst the same, it shall be redressed and holden for none."— St. 25 Edward III, Ch. 4. (1350.)

u That no man, of what estate or condition that he be, shallbe put out of land or tenement, nor taken, nor imprisoned, nordisinherited, nor put to death, without being brought in answerby due process of law." — St. 28 Edward III, Ch. 3. (1354.)

" That no man be put to answer without presentment beforejustices, or matter of record, or by due process and writ origi-nal, according to the old law of the land. And if anythingfrom henceforth be done to the contrary, it shall be void inlaw, and holden for error." — St. 42 Edward III.. Ch. 3.(1368.)

4 6 TRIAL BY JURY.

The foregoing interpretation of the words nisi per legemterrcB — that is, by due process of law— including indictment,&a, has been adopted as the true one by modern writers andcourts; as, for example, by Kent, (2 Comm. 13,) Story, (3Comm. 661,) and the Supreme Court of New York, (19 Wen-dell, 676; 4 Hill, 146.)

The fifth amendment to the constitution of the United Statesseems to have been framed on the same idea, inasmuch as itprovides that " no person shall be deprived of life, liberty, orproperty, without due process of law."*

Whether the word VEL should be rendered by OR, or by AND.

Having thus given the meanings, or rather the applications,which the words vel per legem terra will reasonably, and per-haps must necessarily, bear, it is proper to suggest, that it hasbeen supposed by some that the word vel, instead of being ren-dered by or, as it usually is, ought to be rendered by and, inas-much as the word vel is often used for et, and the whole phrasenisi per judicium parium suorum, vel per legem terrce, (whichwould then read, unless by the sentence of his peers, and thelaw of the land,) would convey a more intelligible and har-monious meaning than it otherwise does.

Blackstone suggests that this may be the true reading.(Charters, p. 41.) Also Mr. Hallam, who says:

" Nisi per legale judicium parium suorum, ve/per legem terrse.Several explanations have been offered of the alternativeclause; which some have referred to judgment by default, ordemurrer; others to the process of attachment for contempt.Certainly there are many legal procedures besides trial byjury, through which a party's goods or person may be taken.But one may doubt whether these were in contemplation ofthe framers of Magna Carta. In an entry of the Charter of1217 by a contemporary hand, preserved in the Town-clerk'soffice in London, called Liber Custumarum et Regum antiqua-rum, a various reading, et per legem terrse, occurs. Black-stone's Charters, p. 42 (41.) And the word vel is so frequently-used for et, that I am not wholly free from a suspicion that it

* Coke, in his exposition of the words legem terrce, gives quite in detail the principlesof the common law governing arrests ; and takes it for granted that the words " nisi perlegem terra" are applicable to arrests, as well as to the indictment, Ac. — 2 Inst.t 61,52.


was so intended in this place. The meaning will be, that noperson shall be disseized, &c., except upon a lawful cause ofaction, found by the verdict of a jury. This really seems asgood as any of the disjunctive interpretations; but I do notoffer it with much confidence."—2 Hallarri's Middle Ages,Ch. 8, Part 2, p. 449, note*

* I cite the above extract from Mr. Hallam solely for the sake of his authority forrendering the word vel by and; and not by any means for the purpose of indorsing theopinion he suggests, that legem terras authorized " judgments by default or demurrer,"without the intervention of a jury. He seems to imagine that lex terras, the common law,at the time of Magna Carta, included everything, even to the practice of courts, thatis, at this day, called by the name of Common Law; whereas much of what is nowcalled Common Law has grown up, by usurpation, since the time of Magna Carta, inpalpable violation of the authority of that charter. He says, " Certainly there aremany legal procedures, besides trial by jury, through which a party's goods or personmay be taken." Of course there are now many such ways, in which a party's goods orperson are taken, besides by the judgment of a jury ; but the question is, whether suchtakings are not in violation of Magna Carta.

He seems to think that, in cases of "judgment by default or demurrer," there is noneed of a jury, and thence to infer that legem terra may not have required a jury inthose cases. But this opinion is founded on the erroneous idea that juries are requiredonly for determining contested facts, and not for judging of the law. In case of default,the plaintiff must present a prima facie case before he is entitled to a judgment; andMagna Carta, (supposing it to require a jury trial in civil cases, as Mr. Hallam assumesthat it does,) as much requires that this prima facie case, both law and fact, be madeout to the satisfaction of a jury, as it does that a contested case shall be.

As for a demurrer, the jury must try a demurrer (having the advice and assistanceof the court, of course) as much as any other matter of law arising in a cose.

Mr. Hallam evidently thinks there is no use for a jury, except where there is a««trial" — meaning thereby a contest on matters of fact. His language is, that " thereare many legal procedures, besides trial by jury, through which a party's goods orperson may be taken." Now Magna Carta says nothing of trial by jury; but only ofthe judgment, or sentence, of a jury. It is only by inference that we come to the con*elusion that there must be a trial by jury. Since the jury alone can give the judgment,or sentence, we infer that they must try the case; because otherwise they would be in-competent, and would have no moral right, to give judgment. They must, therefore,examine the grounds, (both of law and fact,) or rather try the grounds, of every actionwhatsoever, whether it be decided on " default, demurrer," or otherwise, and rendertheir judgment, or sentence, thereon, before any judgment oan be a legal one, on which" to take a party's goods or person." In short, the principle of Magna Carta is, thatno judgment can be valid against a party's goods or person, (not even a judgment forcosts,) except a judgment rendered by a jury. Of course a jury must try every ques-tion, both of law and fact, that is involved in the rendering of that judgment. Theyare to have the assistance and advice of the judges, so far as they desire them; butthe judgment itself must be theirs, and not the judgment of the court.

As to " process of attachment for contempt," it is of course lawful for a judge, in hisoharaoter of a peace offioer, to issue a warrant for the arrest of a man guilty of a con-tempt, as he would for the arrest of any other offender, and hold him to bail, (or, indefault of bail, commit him to prison,) to answer for his offenoe before a jury. Or h»

4 8 TRIAL BY JURY.

The idea that the word vel should be rendered by and, iscorroborated, if not absolutely confirmed, by the followingpassage in Blackstone, which has before been cited. Speak-ing of the trial by jury, as established by Magna Carta, hecalls it,

" A privilege which is couched in almost the same words

may order him into custody without a warrant when the offence is committed in thejudge's presence. But there is no reason why a judge should have the power of pun'iafdng for contempt, any more than for any other offence. And it is one of the mostdangerous powers a judge can have,' because it gives him absolute authority in a courtof justice, and enables him to tyrannize as he pleases over parties, counsel, witnesses,and jurors. If a judge have power to punish for contempt, and to determine for him-self what is a contempt, the whole administration of justice (or injustice, if he chooseto make it so) is in his hands. And all the rights of jurors, witnesses, counsel, andparties, are held subject to his pleasure, and can be exercised only agreeably to his will.He can of course control the entire proceedings in, and consequently the decision of,every cause, by restraining and punishing every one, whether party, counsel, witness,or juror, who presumes to offer anything contrary to his pleasure.

This arbitrary power, which has been usurped and exercised by judges to punish forcontempt, has undoubtedly had much to do in subduing counsel into those servile,obsequious, and cowardly habits, which so universally prevail among them, and whichhave not only cost so many clients their rights, but have also cost the people so manyof their liberties.

If any summary punishment for contempt be ever necessary, (as it probably is not,)beyond exclusion for the time being from the court-room, (which should be done, not asa punishment, but for self-protection, and the preservation of order,) the judgment forit should be given by the jury, (where the trial is before a jury,) and not by the court,for the jury, and not the court, are really the judges. For the same reason) exclusionfrom the court-room should be ordered only by the jury, in cases when the trial isbefore a jury, because they, being the real judges and triers of the cause, are entitled,if anybody, to the control of the court-room. In appeal courts, where no juries sit, itmay be necessary—not as a punishment, but for self-protection, and the maintenanceof order — that the court should exercise the power of excluding a person, for the timebeing, from the court-room; but there is no reason why they should proceed to sentencehim as a criminal, without his being tried by a jury.

If the people wish to have their rights respected and protected in courts of justice,it is manifestly of the last importance that they jealously guard the liberty of parties,counsel, witnesses, and jurors, against all arbitrary power on the part of the court.

Certainly Mr. Hallam may very well say that " one may doubt whether these (theseveral cases he has mentioned) were in contemplation of the framers of MagnaCarta "—that is, as exceptions to the rule requiring that all judgments, that are to beenforced « against a party*a goods or person," be rendered by a jury.

Again, Mr. Hallam says, if the word vel be rendered by and, " the meaning will be,that no person shall be disseized, Ac , except upon a lawful cause of action." This istrue ; but it does not follow that any cause of action, founded on statute only, is there-fore a " lawful cause of action," within the meaning of legem terra, or the CommonLaw. Within the meaning of the legem terns of Magna Carta, nothing but a commonlaw cause of action is a " lawful" one.


with that of the Emperor Conrad two hundred years before:1 nemo beneficium suum perdat, *iisi secundum consuetudinemantecessorum nostrorum, et judicium parium suorum.' " (Noone shall lose his estate unless according to the custom of ourancestors, and the judgment of his peers.) — 3 Blackstone, 350.

If the word vel be rendered by and, (as I think it must be,at least in some cases,) this chapter of Magna Carta will thenread that no freeman shall be arrested or punished, "unlessaccording to the sentence of his peers, and the law of theland."

The difference between this reading and the other is impor-tant. In the one case, there would be, at first view, some colorof ground for saying that a man might be punished in eitherof two ways, viz., according to the sentence of his peers, oraccording to the law of the land. In the other case, it requiresboth the sentence of his peers and the law of the land (com-mon law) to authorize his punishment.

If this latter reading be adopted, the provision would seemto exclude all trials except trial by jury, and all causes ofaction except those of the common law.

But I apprehend the word vel must be rendered both byand, and by or; that in cases of a judgment, it should berendered by and, so as to require the concurrence both of " thejudgment of the peers and the law of the land," to authorizethe king to make execution upon a party's goods or person;but that in cases of arrest and imprisonment, simply for thepurpose of bringing a man to trial, vel should be rendered byor, because there can have been no judgment of a jury insuch a case, and " the law of the land " must therefore necessa-rily be the only guide to, and restraint upon, the king. If thisguide and restraint were taken away, the king would beinvested with an arbitrary and most dangerous power inmaking arrests, and confining in prison, under pretence of anintention to bring to trial.

Having thus examined the language of this chapter of MagnaCarta, so far as it relates to criminal cases, its legal importmay be stated as follows, viz.:

No freeman shall be arrested, or imprisoned, or deprived ofhis freehold, or his liberties, or free customs, or be outlawed,

5

5 0 TMAL BY JJSKT,

or exiled, or m any manner destroyed, (harmed,) nor will we(the king) proceed against him, nor send4 any one against himr

by force or arms, unless according to (that is, in executionof) the sentence of his peers, and (or or, as the case mayrequire) the Common Law of England, (as it was at the timeof Magna Carta, in 1215.)

CHAPTER ITT.

ADDITIONAL PROOFS OP THE RIGHTS AND DUTIES OF JURORS.

IF any evidence, extraneous to the history and languageof Magna Carta, were needed to prow that, by that chapterwhich guaranties the trial by jury, all was meant that hasnow been ascribed to it, and that the legislation ©/ the kingwas to be of no authority with the jury beyond what they choseto allow to it, and that the juries were to limit the punishmentsto be inflicted, we should find that evidence in various sources,such as the laws, customs, and characters of their ancestorson the continent, and of the northern Europeans generally; inthe legislation and customs that immediately succeeded MagnaCarta; in the oaths that have at different times been adminis-tered to jurors, &c., &c. This evidence can be exhibited herebut partially. To give it all would require too much spaceand Labor.

S E C T I O N 1 .

Weakness of the Regal Authority-

Hughes, in his preface to Ms translation of Home's u Mirrorcf Justices" (a book written in the time of Edward L, 1272to 1307,) giving a concise view of the laws of England gen-erally, says:

"Although in the Saxon's time I find the usual wordsof the acts then to have been edictvm, (edict,) constititiio,(statute,) little mention being made of the commons, yet Ifurther find that, turn demum leges vim et vigerem kabnerunt,cum fuerunt non modo institutes sed firmat(B approbationscommunitatis" (The laws had force and vigor only whenthey were not only enacted, but -confirmed by the approvalof the community.)

5 2 TRIAL BY JURY.

The Mirror of Justices itself also says, (ch. 1, sec. 3,) inspeaking " Of the first Constitutions of the Ancient Kings:1'

"Many ordinances were made by many kings, until thetime of the king that now is (Edward I . j ; the which ordi-nances were abused, or not vsed by many, nor very cvrrentfbecause they were not put in writing, and certainly pub-lished."— Mirror of Justices, p. 6.

Hal lain says:

" The Franks, Lombards, and Saxons seem alike to havebeen jealous of judicial authority; and averse to surrenderingwhat concerned every man's private right, out of the handsof his neighbors and equals." — 1 Middle Ages, 271.

The "judicial authority," here spoken of, was the authorityof the kings, (who at that time united the office of both legis-lators and judges,) and not of a separate department of gov-ernment, called the judiciary, like what has existed in moremodern times.*

Hume says:

"The government of the Germans, and that of all thenorthern nations> who established themselves on the rains- ofRome, was always extremely free; and those fierce people,accustomed to independence and inured to arms, were moreguided by persuasion than authority, in the submission whichthey paid to their princes. The military despotism, whichhad taken place in the Roman empire, and which, previouslyto the irruption of those conquerors, had sunk the genius ofmen, and destroyed every noble principle of science and virtue,was unable to resist the vigorous efforts of a free people, andEurope, as from a new epoch, rekindled her ancient spirit, andshook off the base servitude to arbitrary will and authorityunder which she had so long labored. The free constitutionsthen established, however impaired by the encroachmentsof succeeding princes, still preserve an air of independenceand legal administration, which distinguished the Europeannations; and if that part of the globe maintain sentiments

* Hale says:" The trial by jury of twelve men was the usual trial among the Normans, in most

suits ; espeoially in assizes, et juris utrum."—1 Hole's History of the Common Law, 219.This was in Normandy, before the conquest of England by the Normans* See Ditto%

p. 218.Crabbe says :" I t cannot be denied that the practice of submitting causes to the decision of twelve

men was universal among all the northern tribes (of Europe) from the very remotestantiquity." — Crabbe's History of the English Law, p. 32.

WEAKNESS OF THE REGAL AUTHORITY, 53

of liberty, honor, •equity, and valor, superior to the rest ofmankind, it owes these advantages chiefly to the seeds im-planted by those generous barbarians.

" The Saxons, who subdued Britain, as they enjoyed greatliberty in their own country, obstinately retained that invaluablepossession in their new settlement; and they imported into thisisland the same principles of independence, which they hadinherited from their ancestors. The chieftains, {for such theywere, more than kings or princes,) who commanded them inthose military expeditions, still possessed a very limited author-ity ; and as the Saxons exterminated, rather than subdued theancient inhabitants, they were, indeed, transplanted into anew territory, but preserved unaltered all their civil and mili-tary institutions. The language was pure Saxon; even thenames of places, which often remain while the tongue entirelychanges, were almost all affixed by the conquerors; the man-ners and customs were wholly German; and the same picture•of a fierce and bold liberty, which is drawn by the masterlypen of Tacitus, will suit those founders of the English govern-ment. The king, so far from being invested with arbitrarypower, was-only considered as the first among the citizens ; hisauthority depended more on his personal qualities than on his•station ; he was even so far &n a level with the people, that astated price was fixed for his head, and a legal fine was leviedupon his murdea^er, which though proportionate to his station,and superior to that paid for the life of a subject, was a sen-sible mark <vf his subordination to the community" —-1 Hume,Appendix, 1.

Stuart says:" The Saxons brought along with them into Britain their

own customs, language, and civil institutions. Free in Ger-many, they renounced not their independence, when they hadconquered. Proud from victory, and with their swords iutheir hands, would they surrender their liberties to a privateman? Would temporary leaders, limited in their powers,and unprovided in resources, ever think to usurp an authorityover warriors, who considered themselves as their equals, wereimpatient of control, and attached with devoted zeal to theirprivileges? Or, would they find leisure to form resolutions,or opportunities to put them in practice, amidst the tumultand confusion of those fierce and bloody wars, wlfich their na-tions first waged with the Britons, and then engaged in amongthemselves ? Sufficiently flattered in leading the armies oftheir countrymen, the ambition of commanders could as littlesuggest such designs, as the liberty of the people could submitto them. The conquerors of Britain retained their indepeud-

5*

5 4 TRIAL BY JURY.

ence; and this island saw itself again in that free state inwhich the Roman arms had discovered it.

"The same firmness of character, and generosity of manners,which, in general, distinguished the Germans, were possessedin an eminent degree by the Saxons; and while we endeavorto unfold their political institutions, we must perpetually turnour observation to that masterly picture in which the Romanhistorian has described these nations. In the woods of Ger-many shall we find the principles which directed the state ofland, in the different kingdoms of Europe; and there shall wefind the foundation of those ranks of men, and of those civilarrangements, which the barbarians everywhere established;and which the English alone have had the good fortune, orthe spirit, to preserve." — Stuart on the Constitution of Eng-land, p. 59-61.

"Kings they (the Germans) respected as the first magis-trates of the state; but the authority possessed by them wasnarrow and limited." — Ditto, p. 134.

" Did he, (the king,) at any time, relax his activity andmartial ardor, did he employ his abilities to the prejudice ofhis nation, or fancy he was superior to the laws; the samepower which raised him to honor, humbled and degraded him.The customs and councils of his country pointed out to himhis duty; and if he infringed on the former, or disobeyed thelatter, a fierce people set aside his authority. * * *

" His long hair was the only ornament he affected, andto be foremost to attack an enemy was his chief distinction.Engaged in every hazardous expedition, he was a stranger torepose; and, rivalled by half the heroes of his tribe, he couldobtain little power. Anxious and watchful for the public in-terest, he felt every moment his dependence, and gave proofsof his submission.

" He attended the general assembly of his nation, and wasallowed the privilege to harangue it first; but the arts of per-suasion, though known and respected by a rude people, wereunequally opposed to the prejudices and passions of men." —Ditto, p. 135-6.

" The authority of a Saxon monarch was not more consider-able. The Saxons submitted not to the arbitrary rule of princes.They administered an oath to their sovereigns, which boundthem to acknowledge the laws, and to defend the rights of thechurch and people; and if they forgot this obligation, theyforfeited their office. In both countries, a price was affixedon kings, a fine expiated their murder, as well as that of themeanest citizen; and the smallest violation of ancient usage,

WEAKNESS OF THE REGAL AUTHORITY. 55

or the least step towards tyranny, was always dangerous, andoften fatal to them."— Ditto, p. 139-40.

"They were not allowed to impose taxes on the king-dom."— Ditto, p. 146.

"Like the German monarchs. they deliberated in the generalassembly of the nation ; but their legislative authority was notmuch respected; and their assent was considered in no betterlight than as a form. This, however, was their chief prerog-ative ; and they employed it to acquire an ascendant in thestate. To art and insinuation they turned, as their only re-source, and flattered a people whom they could not awe; butaddress, and the abilities to persuade, were a weak compensa-tion for the absence of real power.

" They declared war, it is said, and made peace. In bothcases, however, they acted as the instruments of the state, andput in execution the resolutions which its councils had decreed.If, indeed, an enemy had invaded the kingdom, and its gloryand its safety were concerned, the great lords took the field atthe call of their sovereign. But had a sovereign declared waragainst a neighboring state, without requiring their advice, orif he meant to revenge by arms an insult offered to him bya subject, a haughty and independent nobility refused theirassistance. These they considered as the quarrels of theking, and not of the nation; and in all such emergencies hecould only be assisted by his retainers and dependents." —Ditto, p. 147-8.

" Nor must we imagine that the Saxon, any more than theGerman monarchs, succeeded each other in a lineal descent,*or that they disposed of the crown at their pleasure. In bothcountries, the free election of the people filled the throne; andtheir choice was the only rule by which princes reigned. Thesuccession, accordingly, of their kings was often broken andinterrupted, and their depositions were frequent and ground-less. The will of a prince whom they had long respected,and the favor they naturally transferred to his descendant,made them often advance him to the royal dignity; but thecrown of his ancestor he considered as the gift of the people, andneither expected nor claimed it as a right." — Ditto, p. 151-3.

In Germany " It was the business of the great to commandin war, and in peace they distributed justice. * * *

* "The people, who in every general council or assembly oould oppose and dethronetheir sovereigns, were in little dread of their encroachments on their liberties; andkings, who found sufficient employment in keeping possession of their crowns, would notlikely attack the more important privileges of their subjects."

5 6 TRIAL BY JURY.

" The princes in Germany were earls in England. The greatcontended in both countries in the number of their retainers,and in that splendor and magnificence which are so alluringto a rude people; and though they joined to set bounds toregal power, they were often animated against each otherwith the fiercest hatred. To a proud and impatient nobilityit seemed little and unsuiting to give or accept compositionsfor the injuries they committed or received; and their vassalsadopting their resentment and passions, war and bloodshedalone could terminate their quarrels. What necessarily re-sulted from their situation in society, was continued as aprivilege; and the great, in both countries, made war, of theirprivate authority, on their enemies. The Saxon earls evencarried their arms against their sovereigns; and, surroundedwith retainers, or secure in fortresses and castles, they despisedtheir resentment, and defied their power.

" The judges of the people, they presided in both countriesin courts of law.* The particular districts over which theyexerted their authority were marked out in Germany by thecouncil of the state; and in England their jurisdiction extend-ed over the fiefs and other territories they possessed. Allcauses, both civil and criminal, were tried before them; andthey judged, except in cases of the utmost importance, withoutappeal. They were even allowed to grant pardon to crim-inals, and to correct by their clemency the rigors of justice.Nor did the sovereign exercise any authority in their lands.In these his officers formed no courts, and his writ was disre-garded. * * *

" They had officers, as well as the king, who collected theirrevenues, and added to their greatness; and the inhabitantsof their lands they distinguished by the name of subjects.

" But to attend the general assembly of their nation was thechief prerogative of the German and Saxon princes; and asthey consulted the interest of their country, and deliberatedconcerning matters of state, so in the king's court, of whichalso they were members, they assisted to pronounce judgmentin the complaints and appeals which were lodged in it." —Ditto, p. 158 to 165.

Henry says:

"Nothing can be more evident than this important truth;that our Anglo-Saxon kings were not absolute monarchs; but

* This office was afterwards committed to sheriffs. But even while the court washeld by the lord, «the Lord was not judge, but the Pares (peers) only.'*— Gilbert on theCourt of Exchequer, 61-2.


that their powers and prerogatives were limited by the lawsand customs of the country. Our Saxon ancestors had beengoverned by limited monarchs in their native seats on the con-tinent; and there is not the least appearance or probabilitythat they relinquished their liberties, and submitted to absolutegovernment in their new settlements in this island. It is notto be imagined that men, whose reigning passion was the loveof liberty, would willingly resign it; and their new sover-eigns, who had been their fellow-soldiers, had certainly nopower to compel them to such a resignation."—3 Henry'sHistory of Great Britain, 358.

Mackintosh says: "The Saxon chiefs, who were calledkings, originally acquired power by the same natural causeswhich have gradually, and everywhere, raised a few menabove their fellows. They were, doubtless, more experienced,more skilful, more brave, or more beautiful, than those whofollowed them. * * A king was powerful in war by thelustre of his arms, and the obvious necessity of obedience.His influence in peace fluctuated with his personal character.In the progress of usage his power became more fixed andmore limited. * * It would be very unreasonable to sup-pose that the northern Germans who had conquered England,had so far changed their characteristic habits from the age ofTacitus, that the victors became slaves, and that their generalswere converted into tyrants." — Mackintosh's Hist, of Eng-land, Ch. 2. 45 Lardner's Cab. Cyc, 73-4.

Rapin, in his discourse on the " Origin and Nature of theEnglish Constitution," says:

" There are but two things the Saxons did not think properto trust their kings with; for being of like passions with othermen, they might very possibly abuse them; namely, the powerof changing the laws enacted by consent of king and people;and the power of raising taxes at pleasure. From these twoarticles sprung numberless branches concerning the liberty andproperty of the subject, which the king cannot touch, withoutbreaking the constitution, and they are the distinguishing char-acter of the English monarchy. The prerogatives of thecrown, and the rights and privileges of the people, flowingfrom the two fore-mentioned articles, are the ground of all thelaws that from time to time have been made by unanimousconsent of king and people. The English government con-sists in the strict union of the king's prerogatives with thepeople's liberties. * * But when kings arose, as somethere were, that aimed at absolute power, by changing theold, and making new laws, at pleasure; by imposing illegal

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taxes on the people; this excellent government being, in amanner, dissolved by these destructive measures, confusion andcivil wars ensued, which some very wrongfully ascribe to thefickle and restless temper of the English."—Rapids Prefaceto his History of England.

Hallam says that among the Saxons, " the royal authoritywas weak." —2 Middle Ages, 403.

But although the king himself had so little authority, thatit cannot be supposed for a moment that his laws wereregarded as imperative by the people, it has nevertheless beenclaimed, in modern times, by some who seem determined tofind or make a precedent for the present legislative authorityof parliament, that his laws were authoritative, when assentedto by the Witena-gemote, or assembly of wise men — that is,the bishops and barons. But this assembly evidently had nolegislative power whatever. The king would occasionallyinvite the bishops and barons to meet him for consultation onpublic affairs, simply as a council, and not as a legislativebody. Such as saw fit to attend, did so. If they were agreedupon what ought to be done, the king would pass a lawaccordingly, and the barons and bishops would then returnand inform the people orally what laws had been passed, anduse their influence with them to induce them to conform tothe law of the king, and the recommendation of the council.And the people no doubt were much more likely to accept alaw of the king, if it had been approved by this council, thanif it had not. But it was still only a law of the king, whichthey obeyed or disregarded according to their own notions ofexpediency. The numbers who usually attended this coun-cil were too small to admit of the supposition that they hadany legislative authority whatever, to impose laws upon thepeople against their will.

Lingard says :"It was necessary that the king should obtain the assent of

these (the members of the Witena-gemotes) to all legislativeenactments; because, without their acquiescence and support, itwas impossible to carry them into execution. To many char-ters (laws) we have the signatures of the Witan. They sel-dom exceed thirty in number ; they never amount to sixty" —1 Lingard, 486.


It is ridiculous to suppose that the assent of such an assem-bly gave any authority to the laws of the king, or had anyinfluence in securing obedience to them, otherwise than byway of persuasion. If this body had had any real legislativeauthority, such as is accorded to legislative bodies of thepresent day, they would have made themselves at once themost conspicuous portion of the government, and would haveleft behind them abundant evidence of their power, instead ofthe evidence simply of their assent to a few laws passed bythe king.

More than this. If this body had had any real legislativeauthority, they would have constituted an aristocracy, having,in conjunction with the king, absolute power over the people.Assembling voluntarily, merely on the invitation of the king-deputed by nobody but themselves; representing nobody butthemselves; responsible to nobody but themselves; their legis-lative authority, if they had had any, would of necessity havemade the government the government of an aristocracymerely, and the people slaves, of course. And this wouldnecessarily have been the picture that history would havegiven us of the Anglo-Saxon government, and of Anglo-Sav-on liberty.

The fact that the people had no representation in this assem-bly, and the further fact that, through their juries alone, theynevertheless maintained that noble freedom, the very traditionof which (after the substance of the thing itself has ceasedto exist) has constituted the greatest pride and glory of thenation to this day, prove that this assembly exercised noauthority which juries of the people acknowledged, except attheir own discretion.*

* The opinion expressed in the text, that the Witan had no legislative authority, toeorroborated by the following authorities :

««From the fact that the new laws passed by the king and the Witan were laid beforethe shire-mote, (county court,) we should be almost justified in the inference that asecond sanction was necessary before they could hare the effect of law in that particularcounty." — Dunham's Middle Ages, Sec. 2, B. 2, Ck. 1. 57 Lardner1* Cab. Cyc, 63.

The " second sanction " required to give the legislation of the king and Witan theeffect of law, was undoubtedly, I think, as a general thing, the sanction of a jury. Iknow of no evidence whatever that laws were ever submitted to popular vote in theoounty courts, as this author seems to suppose possible. Another mode, sometimes re-

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There is not a more palpable truth, in the history of theAnglo-Saxon government, than that stated in the Introductionto Gilbert's History of the Common Pleas,* viz., "that theCounty and Hundred Courts" (to which should have beenadded the other courts in which juries sat, the courts-baronand court-leet,) " in those times were the real and only Parlia-ments of the kingdom" And why were they the real andonly parliaments of the kingdom ? Solely because, as willbe hereafter shown, the juries in those courts tried causes ontheir intrinsic merits, according to their own ideas of justice,irrespective of the laws agreed upon by kings, priests, andbarons; and whatever principles they uniformly, or perhapsgenerally, enforced, and none others, became practically thelaw of the land as matter of course, f

Finally, on this point. Conclusive proof that the legisla-tion of the king was of little or no authority, is found in thefact that the kings enacted so few laws. If their laws hadbeen received as authoritative, in the manner that legislativeenactments are at this day, they would have been makinglaws continually. Yet the codes of the most celebrated kingsare very small, and were little more than compilations of im-memorial customs. The code of Alfred would not fill twelve

sorted to for obtaining the sanction of the people to the laws of the Witan, was,it seems, to persuade the people themselves to swear to observe them. Mackintoshsays :

" The preambles of the laws (of the Witan) speak of the infinite number of liege-men who attended, as only applauding the measures of the assembly. But thisapplause was neither so unimportant to the success of the measures, nor so preciselydistinguished from a share in legislation, as those who read history with a modern eyemight imagine. It appears that under Athelstan expedients were resorted to, toobtain a consent to the law from great bodies of the people in their districts, which theirnumbers rendered impossible in a national assembly. That monarch appears to havesent commissioners to hold shire-gemotes or county meetings, where they proclaimed thelaws made by the king and his counsellors, which, being' acknowledged and sworn to atthese folk-motes (meetings of the people) became, by their assent, completely bindingon the whole nation." — Mackintosh's Hist, of England, Ch. 2. 45 Lardner's Cab.Cyc, 75.

•Page 31.f Hallam says, " It was, however, to the county court that an English freeman ohiefly

looked for the maintenance of his civil rights." — 2 Middle Ages, 392.Also, " This (the county court) was the great constitutional judicature in all ques-

tions of civil right." — Ditto, 395.Also, "The liberties of these Anglo-Saxon thanes were chiefly secured, next to their

swords and their free spirits, by the inestimable right of deciding civil and criminalsuits in their own county oonrte." — Ditto, 399.

WEAKNESS OF THE REGAL AUTHORITY. 6 1

pages of the statute book of Massachusetts, and was little ornothing else than a compilation of the laws of Moses, and theSaxon customs, evidently collected from considerations of con-venience, rather than enacted on the principle of authority.The code of Edward the Confessor would not fill twentypages of the statute book of Massachusetts, and, says Black-stone, "seems to have been no more than a new edition, orfresh promulgation of Alfred's code, or dome-book, with suchadditions and improvements as the experience of a centuryand a half suggested." — 1 Blackstone, 66.*

* " Alfred may, in one sense, be called the founder of these laws, (the Saxon,) foruntil his time they were an unwritten code, but he expressly says, ' that I, Alfred, col-lected the good laws of our forefathers into one code, and also 1 wrote them down '— which isa decisive fact in the history of our laws well worth noting." — Introduction to Gilbert'sHistory of the Common Pleas, p. 2, note.

Kelham says, " Let us consult our own lawyers and historians, and they will tell us• * that Alfred, Edgar, and Edward the Confessor, were the great compilers andrestorers of the English Laws." — Kelham's Preliminary Discourse to the Laws of Wil-liam the Conqueror, p. 12. Appendix to Kelham's Dictionary of the Norman Language.

" He (Alfred) also, like another Theodosius, collected the various customs that he founddispersed in the kingdom, and reduced and digested them into one uniform system, orcode of laws, in his som-bec, or liber judicialis (judicial book). This he compiled for theuse of the court baron, hundred and county court, the court-leet and sheriff's tourn,tribunals which he established for the trial of all causes, civil and criminal, in the verydistricts wherein the complaints arose." — 4 Blackstone, 411.

Alfred himself says, " Hence I, King Alfred, gathered these together, and oom-manded many of those to be written down which our forefathers observed — those whichI liked — and those which I did not like, by the advice of my Witan, I threw aside.For I durst not venture to set down in writing over many of my own, since I knew not whatamong them would please those that should come after us. But those which I met witheither of the days of me, my kinsman, or of Offa, King of Mercia, or of iEthelbert,who was the first of the English who received baptism — those which appeared to methe justost — I have here collected, and abandoned the others. Then I, Alfred, King ofthe West Saxons, showed these to all my Witan, and they then said that they wereall willing to observe them." — Laws of Alfred, translated by R. Price, prefixed toMackintosh's History of England, vol. 1. 45 Lardner's Cab. Cyc.

" King Edward * * projected and begun what his grandson, King Edward the Con-fessor, afterwards completed, viz., one uniform digest or body of laws to be observedthroughout the whole kingdom, being probably no more than a revival of King Alfred'*code, with some improvements suggested by necessity and experience, particularly theincorporating some of the British, or, rather, Mercian customs, and also such of theDanish (customs) as were reasonable and approved, into the West Saxon Laget whichwas still the ground-work of the whole. And this appears to be the best supported andmost plausible conjecture, (for certainty is not to be expected,) of the rise and originalof that admirable system of maxims and unwritten customs which is now known by the

6

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The Code of William the Conqueror * would fill less thanseven pages of the statute book of Massachusetts; and mostof the laws contained in it are taken from the laws of the pre-ceding kings, and especially of Edward the Confessor (whoselaws William swore to observe); but few of his own beingadded.

The codes of the other Saxon and Norman kings were, as ageneral rule, less voluminous even than these that have beennamed; and probably did not exceed them in originality, fThe Norman princes, from William the Conqueror to John, Ithink without exception^ bound themselves, and, in order to>maintain their thrones, were obliged to bind themselves, toobserve the ancient laws and customs, in other words, the"lex terrce" or ucommon law" of the kingdom. EvenMagna Carta contains hardly anything other than this same" common law," with some new securities for its observance.

name of the common late, as extending its authority universally over all the realm, andwhich ig doubtless of Saxon parentage." — 4 Blachstonet 412.

" By the Lem Terra and Lea Regni is understood the laws of Edward the Confessor,oonfirmed and enlarged as they were by William the Conqueror; and this Constitutionor Code of Laws is what even to this day are called ' The Common Law of the Land/ "— Introduction, to Gilbert's History of the Common Pleasr p. 22, note.

* Not the conqueror of the English people, (as the friends of liberty maintain,) butonly of Harold the usurper. — See Hole's History of the Common Lavo> oh. £>.

f For all these codes see Wilkin*' Laws of the Anglo-Saxons." Being regulations adapted to existing institutions, the Anglo-Saxon statutes are

concise and technical, alluding to the law which was then living and in vigor, ratherthan denning it. The same clauses and chapters are often repeated word for word, in.the statutes of subsequent kings, showing that enactments which bear the appearanceof novelty are merely declaratory. Consequently the appearance of a law, seeminglyfor the first time* is by no means to be considered as a proof that the matter which itcontains is new; nor can we trace the progress of the Anglo-Saxon institutions with anydegree of certainty, by following, the dates of th« statutes in which we find them firstnoticed. All arguments founded on the apparent chronology of the subjects includedin the laws, are liable to great fallacies. Furthermore, a considerable portion of theAnglo-Saxon law was never recorded in writing. There can be no doubt but that therules of inheritance were well established and defined ; yet we have not a single law,and hardly a single document from which the oourse of the descent of land oan be in-feried. * * Positive proof cannot be obtained of the commencement of any institu-tion, because the first written law relating to it may posssibly be merely confirmatory ordeclaratory; neither can the non-existence of any institution be inferred from the ab-sence of direct evidence. Written laws were modified and controlled by oustoms ofwhich no trace can be discovered, until after the lapse of centuries, although thoseusages must have been in constant vigor during the long interval of silence," — 1 Fed-grave's Rut and Progres* of the Engluk Commonutaltk, 58-9.

ANCIENT COMMON LAW HJRIES COUfcTS OF CONSCIENCE. 6 3

How is this abstinence from legislation, on the part of theancient kings, to be accounted lor, except on the supposition,that the people would accept, and juries enforce, few or nonew laws enacted by tbeir kings? Plainly it can be accountedfor ia no other way. In fact, all history informs us thatanciently the attempts of the kings to introduce or establishnew Jaws, met with determined resistance from the people,and generally resulted in failure. "Nolumus Leges Angliamutari," (we will that the laws of England be not changed,)was a determined principle with the Anglo-Saxons, fromwhich they seldom departed, up to the time of Magna Carta,and indeed until long after.*

S E C T I O N n .

The Ancient Common Law Juries were mere Courts ofConscience.

But it is in the administration of justice, or of law, that thefreedom or subjection of a people is tested. If this administra-tion be in accordance with the arbitrary will of the legislator—that is, if his will, as it appears in his statutes, be the highestrule of decision known to the judicial tribunals, — the govern-ment is a despotism, and the people are slaves. If, on theother hand, the rule of decision be those principles of naturalequity and justice, which constitute, or at least are embodiedin, the general conscience of mankind, the people are free injust so far as that conscience is enlightened.

That the authority of the king was of little weight with theJudicial tribunals, must necessarily be inferred from the factalready stated, that his authority over the people was butweak. If the authority of his laws had been paramount inthe judicial tribunals, it would have been paramount with thepeople, of course; because they would have had no alternative

* Rapin says, " The customs now practised in England are, for the most part, the«ame as the Anglo-Saxons brought with them from Germany." — Rapin'i Diteriationm the GoMnmmt qf ike Angl^Samuu, vol. %. Oct. B d , p, 138. Sm Keikom's Di-

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but submission. The fact, then, that his laws were not au-thoritative with the people, is proof that they were not author-itative with the tribunals — in other words, that they were not,as matter of course, enforced by the tribunals.

But we have additional evidence that, up to the time ofMagna Carta, the laws of the king were not binding upon thejudicial tribunals; and if they were not binding before thattime, they certainly were not afterwards, as has already beer*shown from Magna Carta itself. It is manifest from all theaccounts we have of the courts in which juries sat, prior to-Magna Cartar such as the court-baron, the hundred court, thecourt-leet, and the county court, that they were mere courts ofconscience, and that the juries were the judges, deciding causesaccording to their own notions of equity, and not according toany laws of the king, unless they thought them just.

These courts, it must be considered, were very numerous,and held very frequent sessions. There were probably seven,eight, or nine hundred courts a month, in the kingdom; the ob-ject being, as Blackstone says, "to bring justice home to everyman's door" (3 Btackstone, 30.) The number of the comitycourts, of course, correspond/ed to the number* ©£ comities, (36.},The court-leet was the criminal court for a district less than acounty. The hundred court was the court for one of thosedistricts anciently called a hundred, because, at the time oftheir first organization for judicial purposes, they comprised!(as is supposed) but a hundred families.* The court-baronwas the court for a single manor, and there was a court forevery manor in the kingdom. All these courts were holdenas often as once in three or five weeks; the county court oncea month. The king's judges were present at none of thesecourts; the only officers in attendance being sheriffs, bailiffs,and stewards, merely ministerial, and not judicial, officers;doubtless incompetent, and, if not incompetent, untrustworthy,for giving the juries any reliable information in matters oflaw, beyond what was already known to the jurors themselves.

• Hallam says, "The county of Sussex contains sixty-five (*hundreds*) ; that ofDorset forty-three; while Yorkshire has only twenty-six \ and Lancashire but six."—2 Middle Ages, 391.

ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE. 6 5

And yet these were the courts, in which was done all thejudicial business, both civil and criminal, of the nation, exceptappeals, and some of the more important and difficult cases.*It is plain that the juries, in these courts, must, of necessity,have been the sole judges of all matters of law whatsoever;because there was no one present, but sheriffs, bailiffs, andstewards, to give them any instructions; and surely it will notbe pretended that the jurors were bound to take their law fromsuch sources as these.

In the second place, it is manifest that the principles of law,by which the juries determined causes, were, as a generalrule, nothing else than their own ideas of natural equity, andnot any laws of the king; because but few laws were enacted,and many of those were not written, but only agreed upon incouncil, f Of those that were written, few copies only weremade, (printing being then unknown,) and not enough tosupply all, or any considerable number, of these numerouscourts. Beside and beyond all this, few or none of the jurorscould have read the laws, if they had been written; becausefew or none of the common people could, at that time, read.Not only were the common people unable to read their ownlanguage, but, at the time of Magna Carta, the laws werewritten in Latin, a language that could be read by few personsexcept the priests, who were also the lawyers of the nation.Mackintosh says, " the first act of the House of Commonscomposed and recorded in the English tongue," was in 1415,two centuries after Magna Carta.J Up to this time, and forsome seventy yeaTS later, the laws were generally written

* Excepting also matters pertaining to the collection of the revenue, which were de-termined in the king's oourt of exohequer. But even in this court it was the law " thatnone be amerced but by his peers." — Mirror of Justices-, 49.

f " For the English laws, although not written, may, as it should seem, and that with-out any absurdity, be termed laws, (since this itself is law—that which pleases theprince has the force of law,) I mean those laws which it is evident were promulgatedtoy the adviee of the nobles and the authority of the prince, concerning doubts to besettled in their assembly. For if from the mere want of writing only, they should notl)e considered laws, then, unquestionably, writing-would seem to confer more authorityupon laws themselves, than either the equity of the persons constituting, or the reasoaof those framing them." — GlanviUt's Preface, p. 38. (Glanville was chief justice ofHenry II., 1180.) 2 Turner's History of the Anglo-Saxons, 280.

t Mackintosh's History of England, oh. a. Lardner's Cabinet Cyclopaedia, 266.

6*

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either in Latin or French; both languages incapable of beingread by the common people, as well Normans as Saxons; andone of them, the Latin, not only incapable of being readby them, but of being even understood when it was heardby them.

To suppose that the people were bound to obey, and juriesto enforce, laws, many of which were unwritten, none ofwhich they could read, and the larger part of which (thosewritten in Latin) they could not translate, or understand whenthey heard them read, is equivalent to supposing the nationsunk in the most degrading slavery, instead of enjoying aliberty of their own choosing.

Their knowledge of the laws passed by the king was, ofcourse, derived only from oral information; and "the goodlaws" as some of them were called, in contradistinction to•others — those which the people at large esteemed to be goodlaws — were doubtless enforced by the juries, and the others,as a general thing, disregarded.*

That such was the nature of judicial proceedings, and ofthe power of juries, up to the time of Magna Carta, is furthershown by the following authorities.

" The sheriffs and bailiffs caused the free tenants of theirbailiwics to meet at their counties and hundreds; at whichjustice was so done, that every one so judged his neighbor bysuch judgment as a man could not elsewhere receive in the likecases, until such times as the customs of the realm were putin writing, and certainly published.

" And although a freeman commonly was not to serve (as ajuror or judge) without his assent, nevertheless it was assentedunto that free tenants should meet together in the countiesand hundreds, and lords courts, if they were not speciallyexempted to do such suits, and there judged their neighbors^— Mirror of Justices, p. 7, 8.

* If the laws of the king were received as authoritative by the juries, what occasionwas there for his appointing special commissioners for the trial of offences, without theintervention of a jury, as he frequently did, in manifest and acknowledged violation ofMagna Carta, and " the law of the land 1" These appointments were undoubtedlyBiade for no other reason than that the juries were not sufficiently subservient, butjudged aooording to their own notions of right, instead of the will of the king—whetherthe latter were expressed in his statutes, or by his judges.


Gilbert, in his treatise on the Constitution of England, says:

" In the county courts, if the debt was above forty shillings,there issued ajusticies (a commission) to the sheriff, to enablehim to hold such a plea, where the suitors (jurors) are nidgesof the law and fact." — Gilbert's Cases in Law and Equity,fyc, $-c, 456.

All the ancient writs, given in Glanville, for summoningjurors, indicate that the jurors judged of everything, on theirconsciences only. The writs are in this form:

" Summon twelve free and legal men (or sometimes twelveknights) to be in court, prepared upon their oaths to declarewhether A or B have the greater right to the land (or otherthing) in question" See Writs in Beames' Glanville, p. 54to 70, and 233-306 to 332.

Crabbe, speaking of the time of Henry I , (1100 to 1135,)recognizes the fact that the jurors were the judges. He says:

" By one law, every one was to be tried by his peers, whowere of the same neighborhood as himself. * * By anotherlaw, the judges, for so the jury were called, were to be chosenby the party impleaded, after the manner of the Danish nem-bas ; by which, probably, is to be understood that the defend-ant had the liberty of taking exceptions to, or challenging thejury, as it was afterwards called." — Crabbe's History of theEnglish Law, p. 55.

Reeve says:

"The great court for civil business was the county court;held once every four weeks. Here the sheriff presided; butthe suitors of the court, as they were called, that is, the freemenor landholders of the county, were the judges ; and the sheriffwas to execute the judgment. * * *

" The hundred court was held before some bailiff; the leetbefore the lord of the manor's steward, j- * *

"Out of the county court was derived an inferior court ofcivil jurisdiction, called the court-baron. This was held fromthree weeks to three weeks, and was in every respect like thecounty court;" (that is, the jurors were judges in it;) "onlythe lord to whom this franchise was granted, or his steward,

f Of ooone, Mr. Reeve means to be understood that, in the hundred oourt, and ooort-leet, the juror* were the judge*, as he declares them to hare been in the oounty oourt;otherwise the « bailiff" or " stewaid " most hare been judge.

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presided instead of the sheriff." — 1 Reeve's History of theEnglish Law, p. 7.

Chief Baron Gilbert says:

" Besides the tenants of the king, which held per baroniam,(by the right of a baron,) and did suit and service (served asjudges) at his own court; and the burghers and tenants inancient demesne, that did suit and service (served as jurorsor judges) in their own court in person, and in the king's byproxy, there was also a set of freeholders, that did suit andservice (served as jurors) at the county court. These weresuch as anciently held of the lord of the county, and by theescheats of earldoms had fallen to the king; or such as weregranted out by service to hold of the king, but with particularreservation to do suit and service (serve as jurors) before theking's bailiff; because it was necessary the sheriff, or bailiff ofthe king, should have suitors (jurors) at the county cowl, thatthe business might be despatched. These suitors are the pares{peers) of the county court, and indeed the judges of it; as thepares (peers) were the judges in every court-baron ; and there-fore the king's bailiff having a court before him, there mustbe pares or judges, for the sheriff himself is not a judge; andthough the style of the court is Curia prinia Comitatus E. C.MilitJ vicecorrt Comilaf prced1 Ten? apud B., &c. (FirstCourt of the county, E. C. knight, sheriff of the aforesaidcounty, held at B., &c.); by which it appears that the courtwas the sheriff's; yet, hy the old feudal constitutions, the lordwas not judge, but the pares (peers) only ; so that, even in ajuslicies, which was a commission to the sheriff to hold pleaof more than was allowed by the natural jurisdiction of acounty court, the pares (peers, jurors) only were judges, andnot the sheriff; because it was to hold plea in the same manneras they used to do in that (the lord's) court." — Gilbert on theCourt of Exchequer, ch. 5, p. 61-2.

" It is a distinguishing feature of the feudal system, to makecivil jurisdiction necessarily, and criminal jurisdiction ordina-rily, coextensive with tenure; and accordingly there is insepa-rably incident to eyery manor a court-baron (curia baronum),being a court in which the freeholders of the manor are the solejudges, but in which the lord, by himself, or more commonly byhis steward, presides." — Political Dictionary, word Manor.

The same work, speaking of the county court, says: " Thejudges were the freeholders who did suit to the court" Seeword Courts.

" I n the case of freeholders attending as suitors, the county


court or court-baron, (as in the case of the ancient tenants perbaroniam attending Parliament,) the suitors are the judges ofthe court, both for law and for fact, and the sheriff or the undersheriff in the county court, and the lord or his steward in thecourt-baron, are only presiding officers, with no judicial au-thority."— Political Dictionary, word Suit.

"COURT, (curtis, curia aula); the space enclosed by the wallsof a feudal residence, in which the followers of a lord used toassemble in the middle ages, to administer justice, and deciderespecting affairs of common interest, &c. It was next usedfor those who stood in immediate connexion with the lord andmaster, the pares curia, (peers of the court,) the limited portionof the general assembly, to which was entrusted the pronounc-ing of judgment," &c.—Encyclopedia Americana, word Court.

"In court-barons or county courts the steward was notjudge, but the pares (peers, jurors); nor was the speakerin the House of Lords judge, but the barons only." — Gilberton the Court of Exchequer, ch. 3, p. 42.

Crabbe, speaking of the Saxon times, says:" The sheriff presided at the hundred court, * * and some-

times sat in the place of the alderman (earl) in the countycourt.11 — Crabbe, 23,

The sheriff afterwards became the sole presiding officer ofthe county court.

Sir Thomas Smith, Secretary of State to Q,ueen Elizabeth,writing more than three hundred years after Magna Carta, indescribing the difference between the Civil Law and the Eng-lish Law, says:

" Judex is of us called Judge, but our fashion is so divers,that they which give the deadly stroke, and either condemnor acquit the man for guilty or not guilty, are not called judges,but the twelve men. And the same order as well in civil mat-ters and pecuniary, as in matters criminal.11 — Smith's Com-monwealth of England, ch. 9, p. 53, Edition of 1621.

Court-Leet. " That the leet is the most ancient court in theland for criminal matters, (the court-baron being of no lessantiquity in civil,) has been pronounced by the highest legalauthority. * * Lord Mansfield states that this court wascoeval with the establishment of the Saxons here, and itsactivity marked very visibly both among the Saxons andDanes. * * The leet is a court of record for the cogni-zance of criminal matters, or pleas of the crown; and neces-sarily belongs to the king; though a subject, usually the lord

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of the manor, may be, and is, entitled to the profits, consistingof the essoign pence, fines, and amerciaments.

"It is held before the steward, or was, in ancient times, beforethe bailiff, of the lord." — Tomlirts Law Diet., word Court-Leet.

Of course the jury were the judges in this court, where onlya "steward'* or " bailiff" of a manor presided.

"No cause of consequence was determined without theking's writ; for even in the county courts, of the debts, whichwere above forty shillings, there issued a Justicies (commission)to the sheriff, to enable him to hold such plea, where the suitorsare judges of the law and fact." — GfUberfs History of theCommon Pleas, Introduction, p. 19.

" This position" (that " the matter of law was decided bythe King's Justices, but the matter of fact by the pores ") " iswholly incompatible with the common law, for the Jurata(Jury) were the sole judges both of the law and the fact" —Gilbert's History of the Common Pleas, p. 70, note.

"We come now to the challenge; and of old the suitors incourt, who were judges, could not be challenged; nor by thefeudal law could the pares be even challenged, Pares quiordinariam jurisdictionem habent recusari non possunt; (thepeers who have ordinary jurisdiction cannot be rejected;) " butthose suitors who are judges of the court, could not be chal-lenged; and the reason is, that there are several qualificationsrequired by the writ, viz., that they be liberos et legates homi-nes de vindneto (free and legal men of the neighborhood) ofthe place laid in the declaration," &c., &c. — Ditto, p. 93.

" Ad question em juris non respondent Juratores." (To thequestion of law the jurors do not answer.) " The Annotistsays, that this is indeed a maxim in the Civil-Law Jurispru-dence, but it does not bind an English jury, for by the commonlaw of the land the jury are judges as well of the matter oflaw, as of the fact, with this difference only, that the (a Saxonword) or judge on the bench is to give them no assistance indetermining the matter of fact, but if they have any doubtamong themselves relating to matter of law, they may thenrequest him to explain it to them, which when he hath done,and they are thus become well informed, they, and they only,become competent judges of the matter of law. And this isthe province of the judge on the bench, namely, to show, orteach the law, but not to take upon him the trial of the delin-quent, either in matter of fact or in matter of law." (Herevarious Saxon laws are quoted.) " In neither of these funda-


mental laws is there the least word, hint, or idea, that the earlor alderman (that is to say, the Prepositus (presiding officer)of the court, which is tantamount to the judge on the bench) isto take upon him to judge the delinquent in any sense what-ever, the sole purport of his office is to teach the secular orworldly law." — Ditto, p. 57, note.

" The administration of justice was carefully provided for;it was not the caprice of their lord, but the sentence of theirpeers, that they obeyed. Each was the judge of his equals,and each by his equals was judged." — Introd. to Gilbert onTenures, p. 12.

Hallam says: " A respectable class of free socagers, hav-ing, in general, full rights of alienating their lands, and hold-ing them probably at a small certain rent from the lord of themanor, frequently occur in Domes-day Book. * * Theyundoubtedly were suitors to the court-baron of the lord, towhose soc, or right of justice, they belonged. They were con-sequently judges in civil causes, determined before the manorialtribunal" — 2 Middle Ages, 481.

Stephens adopts as correct the following quotations fromBlackstone:

" The Court-Baron is a court incident to every manor in thekingdom, to be holden by the steward within the said manor."* * It "is a court of common law, and it is the court beforethe freeholders who owe suit and service to the manor," (arebound to serve as jurors in the courts of the manor,) "thesteward being rather the registrar than the judge. * * Thefreeholders' court was composed of the lord's tenants, whowere the pares (equals) of each other, and were bound bytheir feudal tenure to assist their lord in the dispensation ofdomestic justice. This was formerly held every three weeks;and its most important business was to determine, by writ ofright, all controversies relating to the right of lands within themanor."—3 Stephens' Commentaries, 392-3. 3 Blacks tone,32-3.

" A Hundred Court is only a larger court-baron, being heldfor all the inhabitants of a particular hundred, instead of amanor. The free suitors {jurors) are here also the judges,and the steward the register." — 3 Stephens, 394. 3 Black-stone, 33.

" The County Court is a court incident to the jurisdictionof the sheriff. * * The freeholders of the county are thereal judges in this court, and the sheriff is the ministerialofficer." — 3 Stephens, 395-6. 3 Blackstone, 35-6.

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Blackstone describes these courts, as courts "wherein inju-ries were redressed in an easy and expeditions manner; by thesuffrage of neighbors and friends." — 3 Blackstone, 30.

"When we read of a certain number of freemen chosen bythe parties to decide in a dispute — all bound by oath to vote inforo conscienlia — and that their decision, not the will of thejudge presiding, ended the suit, we at once perceive that agreat improvement has been made in the old form of compur-gation — an improvement which impartial observation canhave no hesitation to pronounce as identical in its main feat-ures with the trial by jury." — Dunham s Middle Ages, Sec.2, B. 2, Ch. 1. 57 Lardner's Cab. Cyc, 60.

" The bishop and the earl, or, in his absence, the gerefa,(sheriff,) and sometimes both the earl and the gerefa, presidedat the schyre-mote (county court) ; the gerefa (sheriff) usuallyalone presided at the mote (meeting or court) of the hundred.In the cities and towns which were not within any peculiarjurisdiction, there was held, at regular stated intervals, aburgh mote, (borough court,) for the administration of justice,at which a gerefa, or a magistrate appointed by the king, pre-sided." — Spence's Origin of the Laws and Political Institu-tions of Modern Europe, p. 444.

"The right of the plaintiff and defendant, and of the pros-ecutor and criminal, to challenge the judices, (judges,) orassessors,* appointed to try the cause in civil matters, and todecide upon the guilt or innocence of the accused in criminalmatters, is recognized in the treatise called the Laws of Henrythe First; but I cannot discover, from the Anglo-Saxon lawsor histories, that before the Conquest the parties had any gen-eral right of challenge; indeed, had such right existed, theinjunctions to all persons standing in the situation of judges(jurors) to do right according to their conscience, wouldscarcely have been so frequently and anxiously repeated." —Spence, 456.

Hale says:

" The administration of the common justice of the kingdomseems to be wholly dispensed in the county courts, hundredcourts, and courts-baron; except some of the greater crimesreformed by the laws of King Henry I., and that part thereofwhich was sometimes taken up by the Justitiarius Angliai.

* The jurors were sometimes called " assessors," because they assessed, or determinedthe amount of fines and amercements to be imposed.


This doubtless bred great inconvenience, uncertainty, andvariety in the laws, viz.:

" First, by the ignorance of the judges, which were the free-holders of the county. * *

" Thirdly, a third inconvenience was, that all the business ofany moment was carried by parties and factions. For thefreeholders being generally the judges, and conversing oneamong another, and being as it were the chief judges, notonly of the fact, but of the law; every man that had a suitthere, sped according as he could make parties." — 1 Hole'sHistory of the Common Law, p. 246.

" In all these tribunals," (county court, hundred court,&c.,) " the judges were the free tenants, owing suit to thecourt, and afterwards called its peers." — 1 LingaraVs Historyof England, 488.

Henry calls the twelve jurors " assessors," and says:" These assessors, who were in reality judges, took a solemn

oath, that they would faithfully discharge the duties of theiroffice, and not suffer an innocent man to be condemned, norany guilty person to be acquitted." — 3 Henry's History ofGreat Britain, 346.

Tyrrell says:" Alfred cantoned his kingdom, first into Trihings and

Lathes, as they are still called in Kent and other places, con-sisting of three or four Hundreds; in which, the freeholdersbeing judges, such causes were brought as could not bedetermined in the Hundred court." — TyrreWs Introductionto the History of England, p. 80.

Of the Hundred Court he says :" In this court anciently, one of the principal inhabitants,

called the alderman, together with the barons of the Hun-dred* —id est the freeholders — was judge" — Ditto, p. 80.

Also he says:" By a law of Edward the Elder, ' Every sheriff shall con-

• " The barons of the Hundred " were the freeholders. Hallam says : " The wordbaro, originally meaning only a man, was of vory large significance, and u not unfre-quently applied to common freeholders, as in the phrase court-baron." — 3 MiddleAges, 14-15.

Blackstone says : " The court-baron * * is a court of common law, and it is thecourt of the barons, by which name the freeholders were sometimes anciently called ;for that it is held before the freeholders who owe suit and service to the manor." —3 Blackrtone, 33.

7

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vene the people once a month, and da equal right to aIFrputting an end to controversies at times appointed.'" —Ditto,p. 86.

" A statute, emphatically termed the ' Grand Assize,' enabledthe defendant, if he thought proper, to abide by the testimonyof the twelve good and lawful knights, chosen by four othersof the vicinage, and whose oaths gave a final decision to thecontested claim." — 1 Palgrave's Rise and Progress of theEnglish Commonwealth, 261.

" From the moment when the crown became accustomed to*the c Inquest,' a restraint was imposed upon every branch ofthe prerogative. The king could never be. informed of hisrights, but through the medium of the people. Every ' extent'by which he claimed the profits and advantages resulting fromthe casualties of tenure, every process by which he repressed!the usurpations of the baronage, depended upon the ' goodmen and true' who were impanelled to ' pass' between thesubject and the sovereign; and the thunder of the Exchequerat Westminster might be silenced by the honesty, the firmness,or the obstinacy, of one sturdy knight or yeoman in the dis-tant shire.

Taxation was controlled in the same manner by the voiceof those who were most liable to oppression. * * A jury wasimpanelled to adjudge the proportion due to the sovereign;,and this course was not essentially varied, even after the rightof granting aids to the crown was fully acknowledged to bevested in the parliament of the realm. The people taxedthemselves; and the collection of the grants was cheeked andcontrolled, and, perhaps,, in many instances evaded, by thesevirtual representatives of the community.

The principle of the jury was, therefore, not confined to itsmere application as a mode of trying contested facts, whetherin civil or criminal cases ] and, both in its form and in its con-sequences, it had a very material influence upon the generalconstitution of the realm. * * The main-spring of themachinery of remedial justice existed in the franchise of thelower and lowest orders o{ the political hierarchy. Withoutthe suffrage of the yeoman, the burgess, and the churl, thesovereign could not exercise the most important and mostessential function of royalty; from, them he received thepower of life and death; he could not wield the sword of jus-tice until the humblest of his subjects placed the weapon inhis hand." — 1 Palgrave's Rise and Progress of the Eng-lish Constitution, 274-7.


Coke says, " Tbe court of the county is no court of record,*and the suitors are the judges thereof" —4 Inst., 266.

Also, " The court of the Hundred is no court of record, andthe suitors be thereof judges " — 4 Inst., 267.

Also, " The court-baron is a court incident to every manor,and is not of record, and the suitors be thereof judges.'7 — 4Inst., 268.

Also, "The court of ancient demesne is in the nature of acourt-baron, wherein the suitors are judges, and is no court ofrecord."— 4 Inst., 269.

Millar says, "Some authors have thought that jurymenwere originally c&mpurgators, called by a defendant to swearthat they believed him innocent of the facts with which hewas charged. . . But . . compurgators were merelywitnesses; jurymen were, in reality, judges. The former werecalled to confirm the oath of the party by swearing, accordingto their belief, that he had told the truth, (in his oath of purga-tion ;) the latter were appointed to try, by witnesses, and by aUother means of proof, xohether he was innocent or gnilty. .

Juries were accustomed to ascertain the truth of facts, bythe defendant's oath of purgation, together with that of hiscompurgators. . . Both of them (jurymen and compurga-tors) were obliged to swear that they would tell the truth. .. According to the simple idea of our forefathers, guilt orinnocence was regarded as a mere matter of fact; and it wasthought that no man, who knew the real circumstances of acase, could be at a loss to determine whether the culprit oughtto be condemned or acquitted." — 1 Millar's Hist. View ofEng. Gov., ch. 12, p. 332-4.

Also, " The same form of procedure, which took place iuthe administration of justice among the vassals of a barony,was gradually extended to the courts held in the trading towns."— Same, p. 335.

Also, " The same regulations, concerning the distribution ofjustice by the intervention of juries, . . were introducedinto the baron courts of t/ie king, as into those ofi the nobility,or such of his subjects as retained their allodial property." —Same, p. 337.

Also, "This tribunal" (the aula regis, or king's court,afterwards divided into the courts of King's Bench, Common

* The ancient jury courts kept RO records, because tboso who composed the courts<oould neither make nor read records. Their decisions were preserved by the memoriesof the jurors And other persons present

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Pleas, and Exchequer) "was properly the ordinary baron-court of the king; and, being in the same circumstances withthe baron courts of the nobility, it was under the same neces-sity of trying causes by the intervention of a jury." -—Same,vol. 2, p. 292.

Speaking of the times of Edward the First, (1272 to 1307,)Millar says:

" What is called the petty jury was therefore introducedinto these tribunals, (the King's Bench, the Common Pleas,and the Exchequer,) as well as into their auxiliary courtsemployed to distribute justice in the circuits; and was thusrendered essentially necessary in determining causes of everyuort, whether civil, criminal, ox fiscal" — Same, vol. 2, p. 293-4*

Also, " That this form of trial (by jnry) obtained univer-sally in all the feudal governments, as well as in that of Eng-land, there can be no reason to doubt. In France, in Ger-many, and in other European countries, where we have anyaccounts of the constitution and procedure of the feudal courts,it appears that lawsuits of every sort concerning the free-men or vassals of a barony, were determined by the pares(twice (peers of the court;) and that the judge took little moreupon him than to regulate the method of proceeding, or todeclare the verdict of the jury."— Same, vol. i, ch. 12, p. 32$.

Also, " Among the Gothic nations of modern Europe, thecustom of deciding lawsuits by a jury seems to have prevaileduniversally; first in the allodial courts of the county, or of thehundred, and afterwards ia the baron-courts of every feudalsuperior." — Same, vol. 2, p. 296.

Palgrave says that in Germany " The Graff (gerefa, sheriff)placed himself in the seat of judgment, and gave the chargeto the assembled free Echevins, warning them to pronouncejudgment according to right and justice." —2 Palgrave, 147

Also, that, in Germany, " The Eehevins were composed ofthe villanage, somewhat obscured in their functions by thelearning of the grave civilian who was associated to them, andsomewhat limited by the encroachments of modern feudality;but they iverc still substantially the judges of the court" —Same, 148.

Palgrave also says, "Scotland, in like manner, had the lawsof Burlaw, or Birlaw, which were made and determined bythe neighbors, elected by common consent, in the Burlaw orBirlaw courts, wherein knowledge was taken of complaintsbetween neighbor and neighbor, which men, so chosen, werejudges and arbitrators, and called Birlaw men." — 1 Pal-pram's Rise, &c., p. 80.


But, in order to understand the common law trial by jury,as it existed prior to Magna Carta, and as it was guaranteedby that instrument, k is perhaps indispensable to understandmore fully the nature of the courts in which juries sat, andthe extent of the powers exercised by juries in those courts.I therefore give in a note extended extracts, on these points,from Stuart on the Constitution of England, and from Black-stone's Commentaries.*

* Stuart says :

" The courts, or civil arrangements, which were modelled in Germany, preserved theindependence of the people; and having followed the Saxons into England, and con-tinuing their importance, they supported the envied liberty we boast of. * *

" As a chieftain led out his retainers to the field, and governed them during war; soin peace he summoned them together, and exerted a civil jurisdiction. He was atonce their captain and their judge. They constituted his -court; and having inquiredwith him into the guilt of those of their order whom justice had accused, they assistedhim to enforce his decrees.

" This court (the court-baron) was imported into England; but the innovationwhich conquest introduced into the fashion of the times altered somewhat its appear-ance. * *

" The head or lord of th« manor called forth his attendants to his hall, * * Heinquired into the breaches of custom, and of justice, which were committed within theprecincts of his territory; and with his followers, who sat with him as judges, he deter-mined in all matters of debt, and of trespass to a certain amount. He possessed *similar jurisdiction with the chieftain in Germany, and his tenants enjoyed an equalauthority with the German retainers.

** But a mode of administration which intrusted so much power to the great could notlong be exercised without blame or injustice. The German, guided by the candor ofbis mind, and entering into all his engagements with the greatest ardor, perceived not,a t first, that the chieftain to whom he submitted his disputes might be swayed, in thejudgments he pronounced, by partiality, prejudice, or interest ; and that the influencehe maintained with bis followers was too strong to be restrained by justice. Experi-ence instructed him of bis error; he acknowledged the necessity of appealing from hislord; and the court of the Hundred was erected.

" This establishment was formed both in Germany and England, by the inhabitants ofa certain division, who extended their jurisdiction over the territory they occupied.*They bound themselves under a penalty to assemble at stated times; and having elected4he wisest to preside over them, they judged, not only all civil and criminal matters, but ofthose also which regarded religion and the priesthood. The judicial power thus in-Tested in the people was extensive ; they were able to preserve their rights, andattended this court in arms.

" As the communication, however, and intercourse, of the individuals of a Germancommunity began to be wider, and more general, as their dealings enlarged, and asdisputes arose among the members of different hundreds, the insufficiency of these

* " It was the freemen in Germany, and the possessors of land in England, who were suitors(jurors) in the hundred court. These ranks of men were the same. The alteration which hadhappened in relation to property had invested the German freemen with land or territory,"

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That all these courts were mere courts of conscience, inwhich the juries were sole judges, administering justice accord-ing to their own ideas of it, is not only shown by the extracts

courts for the preservation of order was gradually perceived. The shyre mote, therefore,or county court, was instituted; and it formed the chief source of justice both in Ger-many and England.

" The powers, accordingly, which had been enjoyed by the court of the hundred, wereconsiderably impaired. I t decided no longer concerning capital offences; it decided notconcerning matters of liberty, and the property of estates, or of slaves; its judg-ments, in every case, became subject to review; and it lost entirely the decision ofcauses, when it delayed too long to consider them.

"Every subject of claim or contention was brought, in the first instance, or by appeal,to the county court; and the earl, or eorldorman, who presided there, was active to putthe laws in execution. He repressed the disorders which fell out within the circuit ofhis authority; and the least remission in his duty, or the least fraud he committed, wascomplained of and punished. He was elected from among the great, and was above thetemptation of a bribe; but, to encourage his activity, he was presented with a share ofthe territory he governed, or was entitled to a proportion of the fines and profits of jus-tice. Every man, in his district, was bound to inform him concerning criminals, and toAssist him to bring them to trial; and, as in rude and violent times the poor and help-less were ready to be oppressed by the strong, he was instructed particularly to defendthem.

" His court was ambulatory, and assembled only twice a year, unless the distributionof justice required that its meetings should be oftener. Every freeholder in the countywas obliged to attend it; and should he refuse this service, his possessions were seized,and he was forced to find surety for his appearance. The neighboring earls held nottheir courts on the same day; and, what seems very singular, no judge was allowed,after meals, to exercise his office.

" The druids also, or priests, in Germany, as we had formerly occasion to remark, andthe clergy in England, exercised a jurisdiction in the hundred and county courts. Theyinstructed the people in religious duties, and in matters regarding the priesthood; andthe princes, earls, or eorldormen, related to them the laws and customs of the community.These judges were mutually a check to each other; but it was expected that theyshould agree in their judgments, and should willingly unite their efforts for the publicinterest.*

*• But the prince or earl performed not, at all times, in person, the obligations of his office.The enjoyment of ease and of pleasure, to which in Germany he had delivered himselfover, when disengaged from war, and the mean idea he conceived of the drudgery ofcivil affairs, made him often delegate to an inferior person the distribution of justice in hisdistrict. The same sentiments were experienced by the Saxon nobility; and the servicewhich they owed by their tenures, and the high employments they sustained, calledthem often from the management of their counties. The progress, too, of commerce,

* It would be wholly erroneous, I think, to infer from this statement of Stuart, that either the" priests, princes, earls, or eorldormen" exercised any authority over the jury in the trial of causes,in the way of dictating the law to them. Henry's account of this matter doubtless gives a muchmore accurate representation of the truth. He says that anciently

"The meeting (the county court) was opened with a discourse by the bishop, explaining, out ofthe Scriptures and ecclesiastical canons, their several duties as good Christians and members of the


already given, but is explicitly acknowledged in the followingone, in which the modern " courts of conscience " are comparedwith the ancient hundred and county courts, and the preference

giving an intricacy to cases, and swelling the civil code, added to the difficulty of theiroffice, and made them averse to its duties* Sheriffs, therefore, or deputies, were frequentlyappointed to transact their business; and though these were at first under some subordinationto the earls, they grew at length to be entirely independent of them. The connection of juris-diction and territory ceasing to prevail, and the civil being separated from the ecclesiasticalpower, they became the sole and proper officers for the direction of justice in the counties.

" The hundred, however, and county courts, were not equal of themselves for thepurposes of jurisdiction and order. I t was necessary that a court should he erected,of supreme authority, where the disputes of the great should be decided, where thedisagreeing sentiments of judges should be reconciled, and where protection should begiven to the people against their fraud and injustice.

" The princes accordingly, or chief nobility, in the German communities, assembledtogether to judge of such matters. The Saxon nobles continued this prerogative; andthe king, or, in his absence, the chief justiciary, watched over their deliberations. Butit was not on every trivial occasion that this court interested itself. In smaller concerns,justice was refused during three sessions of the hundred, and claimed without effect, atfour courts of the county, before thero could lie an appeal to it.

** So gradually were these arrangements established, and so naturally did the varyingcircumstances in the situation of the Germans and Anglo-Saxons direct those suc-cessive improvements which the preservation of order, and the advantage of society,called them to adopt. The admission of the people into the courts of justice preserved,among the former, that equality of ranks for which they were remarkable ; and ithelped to overturn, among the latter, those envious distinctions which the feudal systemtended to introduce, and prevented that venality in judges, and those arbitrary pro-ceedings, which the growing attachment to interest, and the influence of the crown,might otherwise have occasioned." — Stuart on the Constitution of England, p . 222to 245.

" I n the Anglo-Saxon period, accordingly, twelve only were elected; and these,together with the judge, or presiding officer of the district, being sworn to regard jus-tice, and the voice of reason, or conscience, all causes were submitted to them." —Ditto, p. 260.

" Before the orders of men were very nicely distinguished, the jurors were electedfrom the same rank. When, however, a regular subordination of orders was estab-lished, and when a knowledge of property had inspired the necessitous with envy, andthe rich with contempt, every man was tried by his equals. The same spirit of libertywhich gave rise to this regulation attended its progress. Nor could monarchs assumea more arbitrary method of proceeding. «I will not» (said the Earl of Cornwall to his

church. After this, the alderman, or one of his assessors, made a discourse on the laws of theland, and the duties of good subjects and good citizens. When these preliminaries were over,they proceeded to try and determine, first the causes of the church, next the pleas of thecrown, and last of all the controversies of private parties." —& Henry's History of GreatBritain, 348.

This view is corroborated by Tyrrelfs Introduction to the History of England, p. 83-84, andby Spencers Origin of the Laws and Political Institutions of Modern Europe, p. 447, and thenote on the same page. Also by a law of Canute to this effect, In every county let there be'twice a year an assembly, whereat the bishop and the earl shall be present, the one to instructthe people in divine, the other in human, laws. — Wilkins, p. 136.

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given to the latter, on the ground that the duties of the jurorsin the one case, and of the commissioners in the other, are thesame, and that the consciences of a jury are a safer and purer

sovereign) * render up my castles, nor depart the kingdom, but by judgment of mypeers.' Of this institution, so wisely calculated for the preservation of liberty, all ourhistorians have pronounced the eulogium." — Ditto, p. 262-3.

Blackstone says :

" The policy of our ancient constitution, as regulated and established by the greatAlfred, was to bring justice home to every man's door, by constituting as many courtsof judicature as there are manors and towns in the kingdom; wherein injuries wereredressed in an easy and expeditious manner, by the suffrage of neighbors and friends*These little courts, however, communicated with others of a larger jurisdiction, andthose with others of a still greater power; ascending gradually from the lowest to thesupreme courts, which were respectively constituted to correct the errors of the inferiorones, and to determine such causes as, by reason of their weight and difficulty, demand-ed a more solemn discussion. The course of justice flowing in large streams from theking, as the fountain, to his superior courts of record ; and being then subdivided intosmaller channels, till the whole and every part of the kingdom were plentifully wateredand refreshed. An institution that seems highly agreeable to the dictates of naturalreason, as well as of more enlightened policy. * * *

" These inferior courts, at least the name and form of them, still continue in ourlegal constitution ; but as the superior court3 of record have, in practice, obtaineda concurrent original jurisdiction, and as there is, besides, a power of removingplaints or actions thither from all the inferior jurisdictions ; upon these accounts(among others) it has happened that these petty tribunals have fallen into decay,and almost into oblivion; whether for the better or the worse may be matter ofsome speculation, when we consider, on the one hand, the increase of expense anddelay, and, on the other, the more able and impartial decisions that follow from thischange of jurisdiction.

" The order I shall observe in discoursing on these several courts, constituted for theredress of civil injuries, (for with those of a jurisdiction merely criminal I shall not atpresent concern myself,*) will be by beginning with the lowest, and those whose juris-diction, though public and generally dispersed through the kingdom, is yet (withregard to each particular court) confined to very narrow limits; and so ascendinggradually to those of the most extensive and transcendent power." — 3 Blackstone,30 to 32.

" The court-baron is a court incident to every manor in the kingdom, to be holden bythe steward u-ithin the said manor. This court-baron is of two natures ; the one is a cus-tomary court, of which we formerly spoke, appertaining entirely to the copy-holders,in which their estates are transferred by surrender and admittance, and other matterstransacted relatfce to their tenures only. The other, of which we now speak, is a courtof common law, and it is a court of the barons, by which name the freeholders weresometimes anciently called ; for that it is held by the freeholders who owe suit and service tothe manoTy the steward being rather the registrar than the judge. These courts, though intheir nature distinct, are frequently confounded together. The court we are now consider-ing, viz., the freeholders court, was composed of the lord's tenants, who were the pares (equals)

* There was no distinction between the civil and criminal courts, as to the rights or powers ofjuries.


tribunal than the consciences of individuals specially appointed,and holding permanent offices.

" But there is one species of courts constituted by act ofParliament, in the city of London, and other trading and pop-ulous districts, which, in their proceedings, so vary from thecourse of the common law, that they deserve a more particularconsideration. I mean the court of requests, or courts of con-science, for the recovery of small debts. The first of these wasestablished in London so early as the reign of Henry VIII., byan act of their common council; which, however, was certain-ly insufficient for that purpose, and illegal, till confirmed bystatute 3 Jac. I., ch. 15, which has since been explained andamended by statute 14 Geo. II., ch. 10. The constitution isthis: two aldermen and four commoners sit twice a week tohear all causes of debt not exceeding the value of forty shil-lings; which they examine in a summary way, by the oathof the parties or other witnesses, and make such order thereinas is consonant to equity and good conscience. * * * Diverstrading towns and other districts have obtained acts of Parlia-

qfeach other, and were bound by their feudal tenure to assist their lord in the dispensation ofdomestic justice. This was formerly held every three weeks ; and its most importantbusiness is to determine, by writ of right, all controversies relating to the right of landswithin the manor. It may also hold plea of any personal actions, of debt, trespass inthe case, or the like, where the debt or damages do not amount to forty shillings; whichis the same sum, or three marks, that bounded the jurisdiction of the ancient Gothiccourts in their lowest instance, or Jierding courts, so called because four were institutedwithin every superior district or hundred." — 3 Blackstone, 33, 34.

" A hundred court is only a larger court-baron, being held for all the inhabitants of aparticular hundred, instead of a manor. The free suitors are here also the judges, and thesteward the registrar, as in the case of a court-baron. It is likewise no court of record, re-sembling the former at all points, except that in point of territory it is of greater juris-diction. This is said by Sir Edward Coke to have been derived out of the county courtfor the ease of the people, that they might have justice done to them at their own doors,without any charge or loss of time ; but its institution was probably coeval with that ofhundreds themselves, which were formerly observed to have been introduced, thoughnot invented, by Alfred, being derived from the polity of the ancient Germans. Thecentcni, we may remember, were the principal inhabitants of a district composed of dif-ferent villages, originally in number a hundred, but afterward only called by that name,and who probably gave the same denomination to the district out of which they werechosen. Caesar speaks positively of the judicial power exercised in their hundred courtsand courts-baron. 'Princeps regiorum atque pagorum' (which we may fairly construethe lords of hundreds and manors) < inter suos jus dicunt, controversias que minuunt.'(The chiefs of the country and the villages declare the law among them, and abate con-troversies.) And Tacitus, who had examined their constitution still more attentively,informs us not only of the authority of the lords, but that of the centeni, the hundreders,or jury, who were taken out of the common freeholders, and had themselves a share in the de-termination. f Eliguntur in conciliis et principes, quijura perpagos vicosque reddunt, centeni

82 TRIAL BY JURY.

ment, for establishing in them courts of conscience upon nearlythe same plan as that in the city of London.

" The anxious desire that has been shown to obtain theseseveral acts, proves clearly that the nation, in general, is trulysensible of the great inconvenience arising from the disuse ofthe ancient county and hundred courts, wherein causes of thissmall value were always formerly decided with very littletrouble and expense to the parties. But it is to be feared thatthe general remedy, which of late hath been principally appliedto this inconvenience, (the erecting these new jurisdictions,)may itself be attended in time with very ill consequences; asthe method of proceeding therein is entirely in derogation ofthe common law; and their large discretionary powers createa petty tyranny in a set of standing commissioners; and as thedisuse of the trial by jury may tend to estrange the minds ofthe people from that valuable prerogative of Englishmen,which has already been more than sufficiently excluded inmany instances. How much rather is it to be wished that theproceedings in the county and hundred courts could be again

singulis, ex plebe comites concilium simul et auctoritas adsunt.' (The princes are chosen inthe assemblies, who administer the laws throughout the towns and villages, and witheach one are associated an hundred companions, taken from the people, for purposesboth of counsel and authority.) This hundred court was denominated haereda in theGothic constitution. But this court, as causes are equally liable to removal from henceas from the common court-baron, and by the same writs, and may also be reviewed bywrit of false judgment, is therefore fallen into equal disuse with regard to the trial ofactions."— 3 Blackstone, 34, 35.

"The county court is a court incident to the jurisdiction of the sheriff. It is not aeourt of record, but may hold pleas of debt, or damages, under the value of forty shil-lings ; over some of which causes these inferior courts have, by the express words ofthe statute of Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of theking's superior courts. * • The county court may also hold plea of many real actions,and of all personal actions to any amount, by virtue of a special writ, called a, justicie#,which is a writ empowering the sheriff, for the sake of despatch, to do the same justicein his county oourt as might otherwise be had at Westminster. The freeholders of the.county court are the real judges in this court, and the sheriff is the ministerial officer. * * *In modern times, as proceedings are removable from hence into the king's superiorcourts, by writ of pone or recordari, in the same manner as from hundred courts andcourts-baron, and as the same writ of false judgment may be had in nature of a writof error, this has occasioned the same disuse of bringing aotions therein." — 3 Black-stone, 36,37.

" Upon the whole, wo cannot but admire the wise economy and admirable provisionof our ancestors in settling the distribution of justice in a method so well calculated forcheapness, expedition, and caso. By the constitution which they established, all trivialdebts, and injuries of small consequenco, were to be recovered or redressed in everyman's own county, hundred, or perhaps parish."-—3 Blachttone, 59.


revived, without burdening the freeholders with too frequentand tedious attendances; and at the same time removing thedelays that have insensibly crept into their proceedings, andthe power that either party has of transferring at pleasuretheir suits to the courts at Westminster! And we may, withsatisfaction, observe, that this experiment has been actuallytried, and has succeeded in the populous county of Middlesex,which might serve as an example for others. For by statute23 Geo. II., ch. 33, it is enacted:

1. That a special county court shall be held at least oncein a month, in every hundred of the county of Middlesex, bythe county clerk.

2. That twelve freeholders of that hundred, qualified to serveon juries, and struck by the sheriff, shall be summoned to ap-pear at such court by rotation ; so as none shall be summonedoftener than once a year.

3. That in all causes not exceeding the value of forty shil-lings, the county clerk and twelve suitors (jurors) shall proceedin a summary way, examining the parties and witnesses onoath, without the formal process anciently used; and shallmake such order therein as they shall judge agreeable to con-science:' — 3 Blackstone, 81-83.

What are these but courts of conscience ? And yet Black-stone tells us they are a revival of the ancient hundred andcounty courts. And what does this fact prove, but that theancient common law courts, in which juries sat, were merecourts of conscience ?

It is perfectly evident that in all these courts the jurors werethe judges, and determined all questions of law for themselves;because the only alternative to that supposition is, that thejurors took their law from sheriffs, bailiffs, and stewards, ofwhich there is not the least evidence in history, nor the leastprobability in reason. It is evident, also, that they judgedindependently of the laws of the king, for the reasons beforegiven, viz., that the authority of the king was held in verylittle esteem; and, secondly, that the laws of the king (notbeing printed, and the people being unable to read them ifthey had been printed) must have been in a great measureunknown to them, and could have been received by them onlyon the authority of the sheriff, bailiff, or steward. If lawswere to be received by them on the authority of these officers,

8 4 TRIAL BY JURY.

the latter would have imposed such laws upon the people asthey pleased.

These courts, that have now been described, were continuedin full power long after Magna Carta, no alteration being madein them by that instrument, nor in the mode of administeringjustice in them.

There is no evidence whatever, so far as I am aware, thatthe juries had any less power in the courts held by the king'sjustices, than in those held by sheriffs, bailiffs, and stewards;and there is no probability whatever that they had. All thedifference between the former courts and the latter undoubtedlywas, that, in the former, the juries had the benefit of the adviceand assistance of the justices, which would, of course, be con-sidered valuable in difficult cases, on account of the justicesbeing regarded as more learned, not only in the laws of theking, but also in the common law, or "law of the land."

The conclusion, therefore, I think, inevitably must be, thatneither the laws of the king, nor the instructions of his justices,had any authority over jurors beyond what the latter saw fitto accord to them. And this view is confirmed by this remarkof Hallam, the truth of which all will acknowledge :

"The rules of legal decision, among a rude people, arealways very simple; not serving much to guide, far less tocontrol the feelings of natural equity." —2 Middle Ages, ch. 8,part 2, p. 465.

It is evident that it was in this way, by the free and con-current judgments of juries; approving and enforcing certainlaws and rules of conduct, corresponding to their notions ofright and justice, that the laws and customs, which, for themost part, made up the common law, and were called, at thatday, " the good laws, and good customs," and " the law of theland" were established. How otherwise could they ever havebecome established, as Blackstone says they were, " by long andimmemorial usage, and by their universal reception through-out the kingdom"* when, as the Mirror says, u justice was sodone, that every one so judged his neighbor, by such judgmentas a man could not elsewhere receive in the like cases, until such

* 1 Blackstone, 63-67.

OATHS OF JURORS. 85

times as the customs of the realm were put in writing and cer-tainly published?"

The fact that, in that dark age, so many of the principlesof natural equity, as those then embraced in the CommonLaw, should have been so uniformly recognized and enforcedby juries, as to have become established by general consent as" the law of the land;" and the further fact that this " law ofthe land " was held so sacred that even the king could notlawfully infringe or alter it, but was required to swear tomaintain it, are beautiful and impressive illustrations of thetruth that men's minds, even in the comparative infancy ofother knowledge, have clear and coincident ideas of the ele-mentary principles, and the paramount obligation, of justice.The same facts also prove that the common mind, and thegeneral, or, perhaps, rather, the universal conscience, as devel-oped in the untrammelled judgments of juries, may be safelyrelied upon for the preservation of individual rights in civilsociety ; and that there is no necessity or excuse for that delugeof arbitrary legislation, with which the present age is over-whelmed, under the pretext that unless laws be made, the lawwill not be known; a pretext, by the way, almost universallyused for overturning, instead of establishing, the principlesof justice.

S E C T I O N I I I .

The Oaths of Jurors.

The oaths that have been administered to jurors, in Eng-land, and which are their legal guide to their duty, all (so faras I have ascertained them) corroborate the idea that the jurorsare to try all cases on their intrinsic merits, independently ofany laws that they deem unjust or oppressive. It is probablethat an oath was never administered to a jury in England,either in a civil or criminal case, to try it according to laic.

The earliest oath that I have found prescribed by law to beadministered to jurors is in the laws of Ethelred, (about theyear 1015,) which require that the jurors " shall swear, withtheir hands upon a holy thing, that they will condemn no man

8

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that is innocent, nor acquit any that is guilty." — 4 Black-stone, 302. 2 Turner's History of the Anglo-Saxons, 155.Wilkins* Laws of the Anglo-Saxons, 117. Spelman's Glos-sary, word Jurata.

Blackstone assumes that this was the oath of the grandjury (4 Blackstone, 302); but there was but one jury at thetime this oath was ordained. The institution of two juries,grand and petit, took place after the Norman Conquest.

Hume, speaking of the administration of justice in the timeof Alfred, says that, in every hundred,

" Twelve freeholders were chosen, who, having sworn,together with the hundreder, or presiding magistrate of thatdivision, to administer impartial justice, proceeded to the exam-ination of that cause which was submitted to their jurisdic-tion." — Hume, ch. 2.

By a law of Henry II., in 1164, it was directed that thesheriff " faciet jurare duodecim legates homines de vicineio seude villa, quod bide veritatem secundum conscientiam suammanifestabunt" (shall make twelve legal men from the neigh-borhood to swear that they will make known the truth accord-ing to their conscience.)—Crabbe's History of the EnglishLaw, 119. 1 Beeves, 87. Wilkins, 321-323.

Glanville, who wrote within the half century previous U>Magna Carta, says:

" Each of the knights summoned for this purpose (as jurors)ought to swear that he will neither utter that which is false,nor knowingly conceal the truth." — Beamed Glanville, 65.

Reeve calls the trial by jury " the trial by twelve mensworn to speak the truth." — 1 Reeve's History of the Eng-lish Law, 67.

Henry says that the jurors " took a solemn oath, that theywould faithfully discharge the duties of their office, and notsuffer an innocent man to be condemned, nor any guiltyperson to be acquitted." — 3 Henry's Hist, of Great Brit-ain, 346.

The Mirror of Justices, (written within a century afterMagna Carta.) in the chapter on the abuses of the CommonLaw, says:

" It is abuse to use the words, to their knowledge, in theiroaths, to make the jurors speak upon thoughts, since the chiefwords of their oaths be that they speak the truth." — p. 249.

OATHS OF JURORS. 87"

Smith, writing an the time of Elizabeth, says that, in civilsuits, the jury " be sworn to declare the truth of that issueaccording to the evidence, and their conscience." — Smith'sCommonwealth of England, edition of 1621, p. 73.

In criminal trials, he says:" The clerk gweth the juror an oath to go uprightly betwixt

the prince and the prisoner." —Ditto, p. 90.*

* This quaint and curious book (Smith's Commonwealth of England) describes theminutiae of trials, giving in detail the mode of impanelling the jury, and then the con-duct of the lawyers, witnesses, and court. I give the following extracts, tending to shovjthat the judges impose no law upon tke juries, in either civil or criminal cases, but onlyrequire them to determine the causes according to their consciences.

In civil causes he says:

" When it is thought that it is enough pleaded before them, and the witnesses have«aid what they can, one of the judges, with a brief and pithy recapitulation, reciteth tothe twelve in sum the arguments of the sergeants of either side, that which the wit-nesses have declared, and the chief points of the evidence shoved in writing, and once•again putteth them in mind of the issue, and sometime giveth it them in writing,delivering to them the evidence which is showed on either part, if any be, (evidencehere is called writings of contracts, authentical after the manner of England, that is to«ay, written, sealed, and delivered,) and biddeth them go together." — p. 74.

This is the whole account given of the charge to the jury.In criminal cases, after the witnesses have been heard, and the prisoner has said what

lie pleases in bis defence,, the book proceeds ~

'« When the judge bath heard them say enough, lie asketh If they can gay any more-I f they say no, then he torneth his speech to the inquest. * Good men, (saith he,) yeof the inquest, ye have heard what these men say against the prisoner. You have alsoheard what the prisoner can say for himself. Have an eye to your oath, and to your•duty, and do that which God shall put iu your minds to the discharge of your conscience*,and mark well what is said.'" — p. 92.

This is the whole account given of the charge in a criminal ease.The following statement goes to confirm the same idea, that jurors in England have

formerly understood it to be their right and duty to judge only according to their eon-eoienoes, and not to submit to any dictation from the court, either as to law or fact.

M If having pregnant evidence, nevertheless, the twelve do acquit the malefactor,which they will do sometime, especially if they peroeive either one of the justices orof the judges, or some other man, to pursue too much and too maliciously the death ofthe prisoner, * • the prisoner escapeth; but the twelve (are) not only rebuked bythe judges, but also threatened of punishment; and many times commanded to appearIn the Star-Chamber, or before the Privy Council for the matter. But this threateningohanceth oftener than the execution thereof; and the twelve answer with most gentlewords, they did it according to their consciences, and pray the judges to be good unto them,they did as they thought right, and as they accorded all, and so it passeth away for themost part.*' — p. 100.

The account given of the trial of a peer of the realm corroborates the same point:

" If any duke, marquis, or any other of the degrees of a baron, or above, lord ofthe Parliament, be appeaohed of treason, or any other capital crime, he is judged byhis peers and equals; that is, the yeomanry doth not go upon him, but an inquest ofthe Londs of Parliament, and they give their voiee not one for all, but eaoh severallyas they do in Parliament, being (beginning) at the youngest lord. And for judge onelord sitteth, who is constable of England for that day. The judgment once given, hebreaketh his staff, and abdicateth his office. In the rest there is no difference from thatAbove written," (that is, in the oase of a freeman.) — p. 9&.

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Hale says:•' Then twelve, and no less, of such as are indifferent and

are returned upon the principal panel, or the tales, are swornto try the same according to the evidence." —2 Hate's His-tory of the Common Law, 141.

It appears from Blackstone that, even at this day. neither incivil nor criminal cases, are jurors in England sworn to trycauses according to law. He says that in civil suits the juryare

" Sworn well and truly to try the issue between the parties,and a true verdict to give according to the evidence." — 3Blackstone, 365.

" The issue" to be tried is whether A owes B anything;and if so, how much? or whether A has in his possessionanything that belongs to B; or whether A has wro&ged B,and ought to make compensation; and if so, how much 1

No statute passed by a legislature, simply as a legis-lature, can alter either of these " issues " in hardly any con-ceivable case, perhaps in none. No unjust law could everalter them in any. They are all mere questions of naturaljustice, which legislatures have no power to alter, and withwhich they have no right to interfere, further than to provide;for having them settled by the most competent and impartialtribunal that it is practicable to have, and then for having alljust decisions enforced. And any tribunal, whether judge opjury, that attempts to try these issues, has no more moral rightto be swerved from the line of justice, by the will of a legistlature, than by the will of any other body of men whatever.And this oath does not require or permit a jury to be soswerved.

In criminal cases, Blackstone says the oath of the jury in.England is :

" Well and truly to try, and true deliverance make, betweenour sovereign lord, the king, and the prisoner whom they havein charge, and a true verdict to give according to the evi-dence." — 4 Blackstone, 355.

"The issue" to be tried, in a criminal case, is "guilty" o?" not guilty" The laws passed by a legislature can rarely,if ever, have anything to do with this issue. " Guilt " is an

OATHS OF JURORS, $9

intrinsic quality of actions, and can neither be created,destroyed, nor changed by legislation. And no tribunal thatattempts to try this issue can have any moral right to declarea man guilty, for an act that is intrinsically innocent, at thebidding of a legislature, any more than at the bidding of any-body else. And this oath does not require or permit a jury todo so.

The words, "according to the evidenoc," have doubtlessbeen introduced into the above oaths in modern times. Theyare unquestionably in violation of the Common Law, and ofMagna Carta, if by them be meant such evidence only as thegovernment sees fit to allow to go to the jury. If the govern-ment can dictate the evidence, and require the jury to decideaccording to that evidence, it necessarily dictates the conclu-sion to which they must arrive. In that case the trial isreally a trial by the government, and not by the jury. 7%ejury cannot try an issue, unless they determine what evidenceshall be admitted. The ancient oaths, it will be observed, saynothing about "according to the evidence" They obviouslytake it for granted that the jury try the whole case; and ofcourse that they decide what evidence shall be admitted. Itwould be intrinsically an immoral and criminal act for a juryto declare a man guilty, or to declare that one man owedmoney to another, unless all the evidence were admitted,which they thought ought to be admitted, for ascertaining thetruth.*

Grand Jury. — If jurors are bound to enforce ail laws passedby the legislature, it is a very remarkable fact that the oathof grand juries does not require them to be governed by thelaws in finding indictments. There have been various formsof oath administered to grand jurors; but by none of themthat I recollect ever to have seen, except those of the States

* " The present form of the jurors* oath is that they shall * give a true verdict accord-ing to the evidence,' At what time this form was introduced is uncertain; but forseveral centuries after the Conquest, the jurors, both in civil and criminal cases, weresworn merely to speak the truth. (Glanville, lib. 2, cap. 17; Braoton, lib. 3, cap. 22;lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision was accurately termedveredictum, or verdict, that is, < a thing truly said '; whereas the phrase ' true verdiot'In the modern oath is not an aoourate expression." —Political Dictionary, word Jury.

8*

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of Connecticut and Vermont, are they sworn to present menaccording to law. The English form, as given in the essay on.Grand Juries, written near two hundred years ago, and sup-posed to have been written by Lord Somers, is as follows :

" You shall diligently inquire, and true presentment make,of all such articles, matters, and things, as shall be given youin charge, and of ail other matters and things as shall come toyour knowledge touching this present service. The king'scouncil, your fellows, and your own, you shall keep secret.You shall present no person for hatred or malice; neither shallyou leave any one unpresented for favor, or affection, for loveor gain, or any hopes thereof; but in all things you shall pre-sent the truth, the whole truth, and nothing but the truth, tothe best of your knowledge. So help you God."

This form of oath is doubtless quite ancient, for the essaysays "our ancestors appointed" it. —See Essay, p. 33-34.

On the obligations of this oath, the essay says:

" If it be asked how, or in what manner, the (grand) juriesshall inquire, the answer is ready, according to the best of theirunderstandings. They only, not the judges, are sworn tosearch diligently to find out all treasons, &c, within theircharge, and they must and ought to use their own discretionin the way and manner of their inquiry. No directions canlegally be imposed upon them by any court or judges; anhonest jury will thankfully accept good advice from judges, astheir assistants; but they are bound by their oaths to presentthe truth, the whole truth, and nothing but the truth, to thebest of their own, not the judge's, knowledge. Neither canthey, without, breach of that oath, resign their consciences, orblindly submit to the dictates of others; and therefore oughtto receive or reject such advices, as they judge Uiem good orbad. * * Nothing can be more plain and express thanthe words of the oath are to this purpose. The jurors neednot search the law books, nor tumble over heaps of oldrecords, for the explanation of them. Our greatest lawyersmay from hence learn more certainly our ancient law in thiscase, than from all the books in their studies. The languagewherein the oath is penned is known and understood by everyman, and the words in it have the same signification as theyhave wheresoever else they are used. The judges, withoutassuming to themselves a legislative power, cannot put a newsense upon them, other than according to their genuine, com-mon meaning. They cannot magisterially impose theiropinions upon the jury, and make them forsake the direct

RIGHT OF JURIES TO FIX SENTENCE. 9 1

words of their oath, to pursue their glosses. The grandinquest are bound to observe alike strictly every part of theiroath, and to use all just and proper ways which may enablethem to perform it; otherwise it were to say, that after menhad sworn to inquire diligently after the truth, according to thebest of their knowledge, they were bound to forsake all thenatural and proper means which their understandings suggestfor the discovery of it, if it be commanded by the judges." —Lord Sowers' Essay on Grand Juries, p. 38.

What is here said so plainly and forcibly of the oath andobligations of grand juries, is equally applicable to the oathand obligations of petit juries. In both cases the simple oathsof the jurors, and not the instructions of the judges, nor thestatutes of kings nor legislatures, are their legal guides to theirduties.*

S E C T I O N IV.

The Right of Juries to fix the Sentence.

The nature of the common law courts existing prior toMagna Carta, such as the county courts, the hundred courts,the court-leet, and the court-baron, all prove, what has alreadybeen proved from Magna Carta, that, in jury trials, the juriesfixed the sentence; because, in those courts, there was no onebut the jury who could fix it, unless it were the sheriff, bailiff,or steward; and no one will pretend that it was fixed by them.The juries unquestionably gave the "judgment" in both civiland criminal cases.

That the juries were to fix the sentence under Magna Carta,is also shown by statutes subsequent to Magna Carta.

A statute passed fifty-one years after Magna Carta, saysthat a baker, for default in the weight of his bread, "debeatamerciari vel subire judicium pillorae," — that is, "ought tobe amerced, or suffer the sentence of the pillory." And thata brewer, for " selling ale, contrary to the assize," " debeatamerciari, vel pati judicium tumbrelli;" that is, u ought to be

•Of course, there can be no legal trial by jury, in either civil or oriminal oasef,where the jury are sworn to try the oases " according to law."

9 2 TRIAL BY JURY.

amerced, or suffer judgment of the tumbrel." —51 Henry / / / . ,st. 6. (1266.)

If the king (the legislative power) had had authority to fixthe punishments of these offences imperatively, he would nat-urally have said these offenders shall be amerced, and shallsuffer judgment of the pillory and tumbrel, instead of thussimply expressing the opinion that they ought to be punishedin that manner.

The statute of Westminster, passed sixty years after MagnaCarta, provides that,

"No city, borough, nor town, nor any man, be amerced,without reasonable cause, and according to the quantity of thetrespass; that is to say, every freeman saving his freehold, amerchant, saving his merchandise, a villein his waynage, andthat by his or their peers." — 3 Edward /., ch. 6. (1275.)

The same statute (ch. 18) provides further, that,

"Forasmuch as the common fine and amercement of thewhole county in Eyre of the justices for false judgments, orfor other trespass, is unjustly assessed by sheriffs and baretorsin the shires, so that the sum is many times increased, andthe parcels otherwise assessed than they ought to be, to thedamage of the people, which be many times paid to the sheriffsand baretors, which do not acquit the payers; it is provided,and the king wills, that from henceforth such sums shall beassessed before the justices in Eyre, afore their departure, bythe oath of knights and other honest men, upon all such asought to pay; and the justices shall cause the parcels to be putinto their estreats, which shall be delivered up unto the ex-chequer, and not the whole sum." — St. 3 Edward /., ch. 18,(1275.)*

The following statute, passed in 1341, one hundred andtwenty-five years after Magna Carta, providing for the trialof peers of the realm, and the king's ministers, contains a re-

* Coke, as late as 1588, admits that amercements must be fixed by the peers (8Coke's Rep. 38, 2 Inst. 27); but he attempts, wholly without success, as it seems tome, to show a difference between fines and amercements. The statutes are very nu-merous, running through the three or four hundred years immediately succeedingMagna Carta, in which fines, ransoms, and amercements are spoken of as if they werethe common punishments of offences, and as if they all meant the same thing. If, how-ever, any technical difference could be made out between them, there is clearly none inprinciple; and the word amercement, as used in Magna Carta, must be taken in its mostcomprehensive sense.

RIGHT OF JURIES TO FIX SENTENCE. 93

cognition of the principle of Magna Carta, that the jury are tofix the sentence.

" Whereas before this time the peers of the land have beenarrested and imprisoned, and their temporalities, lands, andtenements, goods and cattels. asseized in the king's hands,and some put to death without judgment of their peers: It isaccorded and assented, that no peer of the land, officer, norother, because of his office, nor of things touching his office,nor by other cause, shall be brought in judgment to lose histemporalities, lands, tenements, goods and cattels, nor to bearrested, nor imprisoned, outlawed, exited, nor forejudged, norput to answer, nor be judged, but by award (sentence) of thesaid peers in Parliament." —15 Edward III., st. 1, sec. 2.

Section 4, of the same statute provides,

" That in every Parliament, at the third day of every Par-liament, the king shall take in his hands the offices of all theministers aforesaid," (that is, "thechancellor, treasurer, barons,and chancellor of the exchequer, the justices of the one benchand of the other, justices assigned in the country, steward andchamberlain of the king's house, keeper of the privy seal,treasurer of the wardrobe, controllers, and they that be chiefdeputed to abide nigh the king's son, Duke of Cornwall,")" and so they shall abide four or five days; except the officesof justices of the one place or the other, justices assigned,barons of exchequer; so always that they and all other minis-ters be put to answer to every complaint; and if default befound in any of the said ministers, by complaint or othermanner, and of that attainted in Parliament, he shall be pun-ished by judgment of the peers, and put out of his office, andanother convenient put in his place. And upon the same oursaid sovereign lord the king shall do (cause) to be pronouncedand made execution without delay, according to the judgment{sentence) of the said peers in the Parliament."

Here is an admission that the peers were to fix the sentence,or judgment, and the king promises to make execution "ac-cording to" that sentence,

And this appears to be the law, under which peers of therealm and the great officers of the crown were tried and sen-tenced, for four hundred years after its passage, and, for aughtI know, until this day.

The first case given in Hargrave's collection of EnglishState Trials, is that of Alexander Nevil, Archbishop of York,

94 TRIAL BY JURY.

Robert Vere, Duke of Ireland, Michael de la Pole, Earl ofSuffolk, and Robert Tresilian, Lord Chief Justice of England,with several others, convicted of treason, before " the Lordsof Parliament," in 1388. The sentences in these cases wereadjudged by the " Lords of Parliament," in the following terms,as they are reported.

"Wherefore the said Lords of Parliament, there present, asjudges in Parliament, in this case, by assent of the king, pro-nounced their sentence, and did adjudge the said archbishop,duke, and earl, with Robert Tresilian, so appealed, as afore-said, to be guilty, and convicted of treason, and to be drawnand hanged, as traitors and enemies to the king and kingdom;and that their heirs should be disinherited forever, and theirLands and tenements, goods and chattels, forfeited to the king,and that the temporalities of the Archbishop of York shouldbe taken into the king's hands."

Also, in the same case, Sir John Holt, Sir William Burgh,Sir John Cory, Sir Roger Fulthorpe, and John Locton, "tvereby the lords temporal, by the assent of the king, adjudged tobe drawn and hanged, as traitors, their heirs disinherited, andtheir lands and tenements, goods and chattels, to be forfeitedto the king."

Also, in the same case, John Blake, "of council for theking," and Thomas Uske, under sheriff of Middlesex, havingbeen convicted of treason,

" The lords awarded, by assent of the king, that they shouldboth be hanged and drawn as traitors, as open enemies to theking and kingdom, and their heirs disinherited forever, andtheir lands and tenements, goods and chattels, forfeited to theking."

Also, "Simon Burleigh, the king's chamberlain," being con-victed of treason, " by joint consent of the king and the lords,sentence was pronounced against the said Simon Burleigh, thathe should be drawn from the town to Tyburn, and there behanged till he be dead, and then have his head struck fromhis body."

Also, " John Beauchamp, steward of the household to theking, James Beroverse, and John Salisbury, knights, gentle-men of the privy chamber, were in like manner condemned."— 1 Hargrave's State Trials, first case.

Here the sentences were all fixed by the peers, with the as-sent of the king. But that the king should be consulted, andbis assent obtained to the sentence pronounced by the peers,

RIGHT OF JURIES TO FIX SENTENCE. 95

does not imply any deficiency of power on their part to fix thesentence independently of the king. There are obvious reasonswhy they might choose to consult the king, and obtain hisapprobation of the sentence they were about to impose, withoutsupposing any legal necessity for their so doing.

So far as we can gather from the reports of state trials, peersof the realm were usually sentenced by those who tried them,with the assent of the king. But in some instances no mentionis made of the assent of the king, as in the case of " Lionel,Earl of Middlesex, Lord High Treasurer of England," in 1624,(four hundred years after Magna Carta,) where the sentencewas as follows:

. "This High Court of Parliament doth adjudge, that Lionel,Earl of Middlesex, now Lord Treasurer of England, shall loseall his offices which he holds in this kingdom, and shall, here-after, be made incapable of any office, place, or employmentin the state and commonwealth. That he shall be imprisonedin the tower of London, during the king's pleasure. That heshall pay unto our sovereign lord the king a fine of 50,000pounds. That he shall never sit in Parliament any more, andthat he shall never come within the verge of the court." — 2Howelts State Trials, 1250.

Here was a peer of the realm, and a minister of the king, ofthe highest grade; and if it were ever necessary to obtain theassent of the king to sentences pronounced by the peers, itwould unquestionably have been obtained in this instance, andhis assent would have appeared in the sentence.

Lord Bacon was sentenced by the House of Lords, (1620,)no ment'mn being made of the assent of the king. The sentenceis in these words :

"And, therefore, this High Court doth adjudge, That theLord Viscount St. Albans, Lord Chancellor of England, shallundergo fine and ransom of 40,000 pounds. That he shall beimprisoned in the tower during the king's pleasure. That heshall forever be incapable of any office, place, or employmentin the state or commonwealth. That he shall never sit inParliament, nor come within the verge of the court."

And when it was demanded of him, before sentence, whetherit were his hand that was subscribed to his confession, and

9 6 TRIAL BY JURY.

whether he would stand to it; he made the following answer,which implies that the lords were the ones to determine hissentence.

"My lords, it is my act, my hand, my heart. I beseech yourlordships to be merciful to a broken reed." — 1 Hargrove'sState Trials, 386-7.

The sentence against Charles the First, (1648,) after recitingthe grounds of his condemnation, concludes in this form:

" For all which treasons and crimes, this court doth adjudge,that he, the said Charles Stuart, as a tyrant, traitor, murderer,and public enemy to the good people of this nation, shall beput to death by the severing his head from his body."

The report then adds :

" This sentence being read, the president (of the court) spakeas followeth: ' This sentence now read and published, is theact, sentence, judgment and resolution of the whole court.'" —1 Hargrave's State Trials, 1037.

Unless it had been the received " late of the land" that thosewho tried a man should fix his sentence, it would have re-quired an act of Parliament to fix the sentence of Charles, andhis sentence would have been declared to be uthe sentence ofthe law" instead of "the act, sentence,judgment, and resolu-tion of the court."

But the report of the proceedings in " the trial of Thomas,Earl of Macclesfield, Lord High Chancellor of Great Britain,before the House of Lords, for high crimes and misdemeanorsin the execution of his office," in 1725, is so full on this point,and shows so clearly that it rested wholly with the lords to fixthe sentence, and that the assent of the king was wholly un-necessary, that I give the report somewhat at length.

After being found guilty, the earl addressed the lords, for amitigation of sentence, as follows :

" ' I am now to expect your lordships'judgment; and I hopethat you will be pleased to consider that I have suffered nosmall matter already in the trial, in the expense I have beenat, the fatigue, and what I have suffered otherways. * * Ihave paid back 10,800 pounds of the money already; I havelost my office; I have undergone the censure of both houses ofParliament, which is in itself a severe punishment,' " &c., &c.

RIGHT OF JURIES TO FIX SENTENCE. 9 7

On being interrupted, he proceeded:

" 'My lords, I submit whether this be not proper in mitigationof your lordships' sentence ; but whether it be or not, I leavemyself to your lordships' justice and mercy; I am sure neitherof them will be wanting, and I entirely submit.' •* *

"Then the said earl, as also the managers, were directed towithdraw; and the House (of Lords) ordered Thomas, Earl ofMacclesfield, to be committed to the custody of the gentlemanusher of the black rod; and then proceeded to the considerationof what judgment" (that is, sentence, for he had already beenfound guilty,) " to give upon the impeachment against thesaid earl." * *

"The next day, the Commons, with their speaker, beingpresent at the bar of the House (of Lords), * * the speakerof the House of Commons said as follows :

" ' My Lords, the knights, citizens, and burgesses in Parlia-ment assembled, in the name of themselves, and of all thecommons of Great Britain, did at this bar impeach Thomas,Earl of Macclesfield, of high crimes and misdemeanors, and didexhibit articles of impeachment against him, and have madegood their charge. I do, therefore, in the name of the knights,citizens, and burgesses, in Parliament assembled, and of allthe commons of Great Britain, demand judgment {sentence)of your lordships against Thomas, Earl of Macclesfield, for thesaid high crimes and misdemeanors.'

" Then the Lord Chief Justice King, Speaker of the Houseof Lords, said : ' Mr. Speaker, the Lords are now ready toproceed to judgment in the case by you mentioned.

" ' Thomas, Earl of Macclesfield, the Lords have unan-imously found you guilty of high crimes and misdemeanors,charged on you by the impeachment of the House of Commons,and do now, according to law, proceed to judgment against you,which I am ordered to pronounce. Their lordships' judgmentis, and this high court doth adjudge, that you, Thomas, Earlof Macclesfield, be fined in the sum of thirty thousandpounds unto our sovereign lord the king; and that you shallbe imprisoned in the tower of London, and there kept in safecustody, until you shall pay the said fine.'" — 6 Margrave'sState Trials, 762-3-4.

This case shows that the principle of Magna Carta, that aman should be sentenced only by his peers, was in force, andacted upon as law, in England, so lately as 1725, (five hun-dred years after Magna Carta,) so far as it applied to a peerof the realm.

9

9 8 TRIAL BT JURY.

But the same principle, on this point, that applies to a peerof the realm, applies to every freeman. The only differencebetween the two is, that the peers of the realm have had in-fluence enough to preserve their constitutional rights; whilethe constitutional rights of the people have been trampled uponand rendered obsolete by the usurpation and corruption of thegovernment and the courts.

S E C T I O N T .

The Oaths of Judges.

As further proof that the legislation of the king, whetherenacted with or without the assent and advice of his parlia-ments, was of no authority unless it were consistent with thecommon late, and unless juries and judges saw fit to enforce it,it may be mentioned that it is probable that no judge in Eng-land was ever sworn to observe the laws enacted either by theking alone, or by the king with the advice and assent of par-liament.

The judges were sworn to " do equal law, and execution ofright, to all the king's subjects, rich and poor, without havingregard to any person;" and that they will "deny no mancommon right f * but they were not sworn to obey or executeany statutes of the king, or of the king and parliament. In-deed, they are virtually sworn not to obey any statutes thatare against " common right" or contrary to " the commonlaw" or ulaw of the land f but to "certify the king thereof'7

— that is, notify him that his statutes are against the commonlaw; — and then proceed to execute the common law, notwith-standing such legislation to the contrary. The words of theoath on this point are these :

" That ye deny no man common right by (^virtue of) theking's letters, nor none oilier man's, nor for none other cause ;and in case any letters come to you contrary to the law, (thatis, the common law, as will be seen on reference to the entire,oath given in the note,) that ye do nothing by such letters, but

• « Common right" was the common law, 1 Coke's Inst. 142 a. 1 do. 55, 6,

OATHS OF JUDGES. 90

certify the king thereof, and proceed to execute tlve law, (thatis, the common law,) notwithstanding the same letters."

When it is considered that the king was the sole legislativepower, and that he exercised this power, to a great extent, byorders in council, and by writs and "letters" addressed often-times to some sheriff, or other person, and that his commands,when communicated to his justices, or any other person, " bySetters," or writs, under seal, had as much legal authority asJaws promulgated in any other form whatever, it will be seenthat this oath of the justices absolutely inquired that they dis-regard any legislation that was contrary to "common right,"or "the common law" and notify the king that it was con-trary to common right, or the common law, and then proceedto execute the common law, notwithstanding such legislation.*

If there could be any doubt that such was the meaning ofthis oath, that doubt would be removed by a statute passed bythe king two years afterwards, which fully explains this oath,•as follows:

" Edward, by the Grace of God, &c., to the Sheriff ofStafford, greeting: Because that by divers complaints made tous, we have perceived that the Law of the hand, which we byour oath are bound to maintain, is the less well kept, and the-execution of the same disturbed many times by maintenanceand procurement, as well in the court as in the country; we

* The oath of the justices Is in these words :

'*• Ye shall swe&r, that wall and lawfully ye shall serve our lord the king and hi*people, in the office of justice, and that lawfully ye shall counsel the king in hisbusiness, and that ye shall not counsel nor assent to anything which may turn him in•damage or disherison in any manner, way, or color. And that ye shall not know the-damage or disherison of him, whereof ye shall not cause him to be warned by yourself•or by other; and that ye shall do equal law and execution of right to all his subjects, rich<md poor, without having regard to any person. And that ye take not by yourself, or byother, privily nor apertly, gift nor reward of gold nor silver, nor of any other thingthat may turn to your profit, unless it be meat or drink, and that of small value, ofAny man that shall have any plea or process hanging before you, as long as the sameprocess shall be so hanging, nor after for the same cause. And that ye take no fee, aslong as ye shall be justice, nor robe of any man great or small, but of the king him-self. And that ye give none advice or counsel to no man great or small, in no easewhere the king is party. And in case that any, of what estate or condition they be, comebefore you in your sessions with force and arms, or otherwise against the peace, or«gainst the form of the statute thereof made, to disturb execution of the common2aw," (mark the term, " common law,") *' or to menace the people that they may not

100 TRIAL BY JURY.

greatly moved of conscience in this matter, and for this causedesiring as much for the pleasure of God, and ease and quiet-ness of our subjects, as to save our conscience, and for to saveand keep our said oath, by the assent of the great men andother wise men of our council, we have ordained these thingsfollowing:

" First, we have commanded all our justices, that theyshall from henceforth do equal law and execution of right toail oar subjects, rich and poor, without having regard to anyperson, and without omitting to do right for any letters or com-mandment which may come to them from us, or from anyother, or by any other cause. And if that any letters, writs, orcommandments come to the justices, or to other deputed to do lawand right according to the usage of the realm, in disturbanceof the law. or of the execution of the same, or of right to theparties, the justices and other aforesaid shall proceed and holdtheir courts and processes, where the pleas and matters be de-pending before them, as if no such letters, writs, or command-ments were come to them; and they shall certify us and ourcouncil of such commandments which be contrary to the law,(that is, " the law of the land," or common law.) as afore issaid."* And to the intent that our justices shall do evenright to all people in the manner aforesaid, without more favorshowing to one than to another, we have ordained and causedour said justices to be sworn, that they shall not from hence-forth, as long as they shall be in the office of justice, take feenor robe of any man, but of ourself, and that they shall takeno gift nor reward by themselves, nor by other, privily nor

pursue the law, that ye shall cause their bodies to be arrested and put in prison ; andin case they be such that ye cannot arrest them, that ye certify the king of theirnames, and of their misprision, hastily, so that he may thereof ordain a convenableremedy. And that ye by yourself, nor by other, privily nor apertly, maintain anyplea or quarrel hanging in the king's court, or elsewhere in the country.. And that yadeny no man common right by the king's letters, nor none other man's, nor for none othercause ; and in case any letters come to you contrary to the lawy" (that is, the " commonlaw ** before mentioned,) " that ye do nothing by such letters, but certify the king thereof, andproceed to execute the law," (the licommon law "'before mentioned,) "notwithstanding thesame letters. And that ye shall do and procure the profit of the king and of his crown,with all things where ye may reasonably do the same. And in case ye be from hence-forth found in default in any of the points aforesaid, ye shall be at the king's will ofbody, lands, and goods, thereof to be done as shall please him, as God you help and allsaints." — 18 Edward UL, st. 4. (1344.)

* That the terms " Law " and " Right," as used in this statute, mean the commonlaw, is shown by the preamble, which declares the motive of the statute to be that " theLaw of the Land, (the common law,) which we (the king) by our oath are bound to main-tain," may be the better kept, <fco.

OATHS OF JUDGES. 101

apertly, of any man that bath to do before them by any way,except meat and drink, and that of small value; and that theyshall give no counsel to great men or small, in case where webe party, or which do or may touch us in any point, uponpain to be at our will, body, lands, and goods, to do thereof asshall please us, in case they do contrary. And for this causewe have increased the fees of the same, our justices, in suchmanner as it ought reasonably to suffice them."—20 Ed-ward III, ch. 1. (1346.)

Other statutes of similar tenor have been enacted, as follows:" I t is accorded and established, that it shall not be com-

manded by the great seal, nor the little seal, to disturb orclelay common right; and though such commandments docome, the justices shall not therefore leave (omit) to do rightan any point." — St. 2 Edward III, ch. 8. (1328.)

"Tha t by commandment of the great seal, or privy seal, nopoint of this statute shall be put in delay; nor that the justicesof whatsoever place it be shall let (omit) to do the commonlaw, by commandment, which shall come to them under thegreat seal, or the privy seal." — 14 Edward / / / . , st. 1, ch. 14.(1340.)

" I t is ordained and established, that neither letters of thesignet, nor of the king's privy seal, shall be from henceforthsent in damage or prejudice of the realm, nor in disturbanceof the law " (the common law). —11 Richard II, ch. 10.(1387.)

It is perfectly apparent from these statutes, and from theoath administered to the justices, that it was a matter freelyconfessed by the king himself, that his statutes were of novalidity, if contrary to the common law, or "common right."

The oath of the justices, before given, is, I presume, thesame that has been administered to judges in England fromthe day when it was first prescribed to them, (1344,) untilnow. I do not find from the English statutes that the oathhas ever been changed. The Essay on Grand Juries, beforereferred to, and supposed to have been written by LordJSomers, mentions this oath (page 73) as being still adminis-tered to judges, that is, in the time of Charles II., more thanthree hundred years after the oath was first ordained. If theoath has never been changed, it follows that judges have notonly never been sworn to support any statutes whatever of

9*

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the king, or of parliament, but that, for five hundred yearspast, they actually have been sworn to treat as invalid allstatutes that were contrary to the common law.

S E C T I O N V I .

The Coronation Oath.

That the legislation of the king was of no authority over ajury, is further proved by the oath taken by the kings at theircoronation. This oath seems to have been substantially thesame, from the time of the Saxon kings, down to the seven-teenth century, as will be seen from the authorities hereaftergiven.

The purport of the oath is, that the king swears to rnaintainthe law of the land—that is, the common law. In other words,he swears " to concede and preserve to the English people thelaws and customs conceded to them by the ancient, just, andpious English kings, * * and especially the laws, customs,and liberties conceded to the clergy and people by the illustriousking Edward;" * * and uthe just laws and customs whichthe common people have chosen, (quas vulgus elegii)."

These are the same laws and customs which were calledby the general name of " the law of the land," or uthe com-mon law," and, with some slight additions, were embodied inMagna Carta.

This oath not only forbids the king to enact any statutescontrary to the common law, but it proves that his statutescould be of no authority over the consciences of a jury; since,as has already been sufficiently shown, it was one part ofthis very common law itself, —that is, of the ancient "laws,customs, and liberties," mentioned in the oath,—that juriesshould judge of all questions that came before them, accordingto their own consciences, independently of the legislation ofthe king.

It was impossible that this right of the jury could subsistconsistently with any right, on the part of the king, to imposeany authoritative legislation upon them. His oath, therefore,

THE CORONATION OATH. 103

to maintain the law of the land, or the ancient " laws, cus-toms, and liberties," was equivalent to an oath that he wouldnever assume to impose laws upon juries, as imperative rulesof decision, or take from them the right to try all cases accord-ing to their own consciences. It is also an admission that hehad no constitutional power to do so, if he should ever desireit. This oath, then, is conclusive proof that his legislationwas of no authority with a jury, and that they were under noobligation whatever to enforce it, unless it coincided with theirown ideas of justice.

The ancient coronation oath is printed with the Statutes ofthe Realm, vol. i., p. 168, and is as follows:*

TRANSLATION.il Form of the Oath of the King of England, on his Coronation.

(The Archbishop of Canterbury, to whom, of right andcustom of the Church of Canterbury, ancient and approved, itpertains to anoint and crown the kings of England, on the dayof the coronation of the king, and before the king is crowned,shall propound the underwritten questions to the king.)

The laws and customs, conceded to the English people bythe ancient, just, and pious English kings, will you,concedeand preserve to the same people, with the confirmation of anoath? and especially the laws, customs, and liberties concededto the clergy and people by the illustrious king Edward ?

* The following is a copy of the original:*' Forma Juramenti Regis Anglice in Coronacione sua :(Archiepiscopus Cantuariae, ad quo de jure et oonsuetudine Ecclesiae Cantuariae, an-

tiqua et approbata, pertinet Reges Angliae inungere et coronare, die coronacionis Regis,anteque Rex coronetur, faciet Regi Interrogations subscriptas.)

Si leges et consuetudines ab antiquis justis et Deo devotis Regibus plebi Anglicanoconcessas, cum sacramenti confirmacione eidem plebi concedere et servare (volueris :)Et prsesertim leges et consuetudines et libertates a glorioso Rege Edwardo clero pop-uloque concessas 1

(Et respondeat Rex,) Ooncedo et servare volo, et Sacramento confirmare.Servabis Ecclesise Dei, Cleroque, et Populo, pacem ex integro et concordiam in Deo

secundum vires tuas 1(Et respondeat Rex,) Servabo.Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et discrecionem, in

misericordia et veritate, secundum vires tuaa 1(Et respondeat Rex,) Faoiam.Conoedis justas, leges et consuetudines esse tenendas, et promittis per te eas ease

protegendas, et ad honorem Dei corroborandas, quas vulgus elegii, secundum vires taM 1(Et respondeat Rex,) Conoedo et promitto."

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(And the king shall answer,) I do concede, and will pre-serve them, and confirm them by my oath.

Will you preserve to the church of God, the clergy, andthe people, entire peace and harmony in God, according toyour powers'?

(And the king shall answer,) I will.In all your judgments, will you cause equal and right

justice and discretion to be done, in mercy and truth, accord-ing to your powers?

(And the king shall answer,) I will.Do you concede that the just laws and customs, which the

common people have chosen, shall be preserved; and do youpromise that they shall be protected by you, and strengthenedto the honor of God, according to your powers?

(And the king shall answer,) I concede and promise."

The language used in the last of these questions, "Do youconcede that the just laws and customs, which the commonpeople have chosen, (quas vulgits elegit,) shall be preserved?"&c., is worthy of especial notice, as showing that the laws,which were to be preserved, were not necessarily all the lawswhich the kings enacted, but only such of them as the commonpeople had selected or approved.

And how had the common people made known their appro-bation or selection of these laws ? Plainly, in no other waythan this — that the juries composed of the common people hadvoluntarily enforced them. The common people had no otherlegal form of making known their approbation of particularlaws.

The word "concede," too, is an important word. In theEnglish statutes it is usually translated grant — as if with anintention to indicate that " the laws, customs, and liberties"of the English people were mere privileges, granted to themby the king; whereas it should be translated concede, to indi-cate simply an acknowledgment, on the part of the king, thatsuch were the laws, customs, and liberties, which had beenchosen and established by the people themselves, and of rightbelonged to them, and which he was bound to respect.

I will now give some authorities to show that the foregoingoath has, in substance, been the coronation oath from the timesof William the Conqueror, (1066,) down to the time of Jamesthe First, and probably until 1688.


It will be noticed, in the quotation from Kelham, that hesays this oath (or the oath of William the Conqueror) is " insense and substance, the very same with that which the Saxonkings used to take at their coronations."

Hale says:

" Yet the English were very zealous for them," (that is, forthe laws of Edward the Confessor,) " no less or otherwise thanthey are at this time for the Great Charter; insomuch thatthey were never satisfied till the said laws were reenforced,and mingled, for the most part, with the coronation oath ofking William L, and some of his successors." — 1 Hate's His-tory of Common Law, 157.

Also, " William, on his coronation, had sworn to govern bythe laws of Edward the Confessor, some of which had beenreduced into writing, but the greater part consisted of the im-memorial customs of the realm."—Ditto, p. 202, note L.

Kelham says:

" Thus stood the laws of England at the entry of William I.,and it seems plain that the laws, commonly called the laws ofEdward the Confessor, were at that time the standing laws ofthe kingdom, and considered the great rule of their rights andliberties; and that the English were so zealous for them, ' thatthey were never satisfied till the said laws were reenforced, andmingled, for the most part, with the coronation oath.' Accord-ingly, we find that this great conqueror, at his coronation onthe Christmas day succeeding his victory, took an oath at thealtar of St. Peter, Westminster, in sense and substance the verysame with that which the Saxon kings used to take at theircoronations. * * And at Barkhamstead, in the fourth yearof his reign, in the presence of Lanfranc, Archbishop of Can-terbury, for the quieting of the people, he swore that he wouldinviolably observe the good and approved ancient laws whichhad been made by the devout and pious kings of England, hisancestors, and chiefly by King Edward; and we are told thatthe people then departed in good humor."—Kelham1 s Pre-liminary Discourse to the Laws of William the Conqueror.See, also, 1 Hate's History of the Common Law, 186.

Crabbe says that William the Conqueror "solemnly sworethat he would observe the good and approved laws of Edwardthe Confessor." — Crabbe s History of the English Law, p. 43.

The successors of William, up to the time of Magna Carta,

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probably all took the same oath, according to the custom ofthe kingdom; although there may be no historical accountsextant of the oath of each separate king. But history tells usspecially that Henry I., Stephen, and Henry II., confirmedthese ancient laws and customs. It appears, also, that thebarons desired of John (what he afterwards granted by Mag-na Carta) " that the laws and liberties of King Edward,with other privileges granted to the kingdom and church ofEngland, might be confirmed, as they were contained in thecharters of Henry the First; further alleging, that at the timeof his absolution, he promised by his oath to observe these verylaws and liberties." — Echard's History of England, p. 105--6.

It would appear, from the following authorities, that sinceMagna Carta the form of the coronation oath has been " tomaintain the law of the land,1*—meaning that law as em-bodied in Magna Carta. Or perhaps it is more probable thatthe ancient form has been still observed, but that, as its sub-stance and purport were "to maintain the laxo of the land"this latter form of expression has been used, in the instanceshere cited, from motives of brevity and convenience. Thissupposition is the more probable, from the fact that I find nostatute prescribing a change in the form of the oath until 1688.

That Magna Carta was considered as embodying "the lawof the land," or "common law," is shown by a statute passedby Edward L, wherein he "grants," or concedes,

" That the Charter of Liberties and the Charter of the Fores!* * shall be kept in every point, without breach, * * andthat our justices, sheriffs, mayors, and other ministers, which,under us, have the laws of our land* to guide, shall allow thesaid charters pleaded before them in judgment, in all theirpoints, that is, to wit, the Great Charter as the Common Lav;,and the Charter of the Forest for the wealth of the realm.

"And we will, that if any judgment be given from hence-forth, contrary to the points of the charters aforesaid, by thejustices, or by any other our ministers that hold plea beforethem against the points of the charters, it shall be undone,and holden for naught." — 25 Edward I., ch. 1 and 2. (1297.)

* It would appear, from the text, that the Charter of Liberties and the Charter ofthe Forest were sometimes called "laws of the land."


Blackstone also says:

" I t is agreed by all our historians that the Great Charterof King John was, for the most part, compiled from the ancientcustoms of the realm, or the lavis of Edward the Confessor;by which they usually mean the old common law which wasestablished under our Saxon princes" — Blackstone's Intro-duction to the Charters. See Blackstone's Law Tracts, 289.

Crabbe says:

" I t is admitted, on all hands, that it (Magna Carta) con-tains nothing but what was confirmatory of the common law,and the ancient usages of the realm, and is, properly speaking,only an enlargement of the charter of Henry L, and his succes-sors."— Crabbers History of the English Law, p. 127.

That the coronation oath of the kings subsequent to MagnaCarta was, in substance, if not in form, "to maintain this lawof the land, or common law," is shown by a statute of EdwardThird, commencing as follows:

" Edward, by the Grace of God, &c., &c, to the Sheriff ofStafford, Greeting: Because that by divers complaints made tous, we have perceived that the law of the land, which we byoath are bound to maintain," fyc. — St. 20 Edward III. (1346.)

The following extract from Lord Somers' tract on GrandJuries shows that the coronation oath continued the same aslate as 1616, (four hundred years after Magna Carta.) Hesays:

" King James, in his speech to the judges, in the Star Cham-ber, Anno 1616, told them, ' That he had, after many years,resolved to renew his oath, made at his coronation, concerningjustice, and the promise therein contained for maintainingthe law of the land.'1 And, in the next page save one, says,' / was sworn to maintain the law of the land, and thereforehad been perjured if I had broken it. God is my judge, Inever intended it.' " •—Somers on Grand Juries, p. 82.

In 1688, the coronation oath was changed by act of Parlia-ment, and the king was made to swear:

" To govern the people of this kingdom of England, and thedominions thereto belonging, according to the statutes in Par-liament agreed on, and the laws and customs of the same." —St. 1 William and Mary, ch. 6. (1688.)

108 TRIAL BY JURY.

The effect and legality of this oath will hereafter be consid-ered. For the present it is sufficient to show, as has beenalready sufficiently done, that from the Saxon times until atleast as lately as 1616, the coronation oath has been, in sub-stance, to maintain the law of the land, or the common law,meaning thereby the ancient Saxon customs, as embodied in thelaws of Alfred, of Edward the Confessor, and finally in MagnaCarta.

It may here be repeated that this oath plainly proves thatthe statutes of the king were of no authority over juries, ifinconsistent with their ideas of right; because it was one partof the common law that juries should try all causes accordingto their own consciences, any legislation of the king to thecontrary notwithstanding.*

* As the ancient ooronation oath, given in the text, has come down from the Saxontimes, the following remarks of Palgrave will be pertinent, in connection with theoath, as illustrating the fact that, in those times, no special authority attached to thelaws of the king :

" The Imperial Witenagemot was not a legislative assembly, in the strict sense ofthe term, fur the whole Anglo-Saxon empire. Promulgating his edicts amidst hispeers and prelates, the king uses the language of command; but the theoretical pre-rogative was modified by usage, and the practice of the constitution required that the'law should be accepted by the legislatures (courts) of the several kingdoms. * * The' LJasileus ' speaks in the tone of prerogative : Edgar does not merely recommend, hecommands that the law shall be adopted by all the people, whether English, Danes, orUntuns, in every part of his empire. Let this statute be observed, he continues, byEarl Oslac, and all the host who dwell under his government, and let it be transmittedby writ to the ealdormen of the other subordinate states. And yet, in defiance of thispositive injunction, the laws of Edgar were not accepted in Mercia until the reign ofCanute the Dane. It might be said that the course so adopted may have been an ex-ception to the general rule; but in the scanty and imperfect annals of Anglo-Saxonlegislation, we shall be able to find so many examples of similar proceedings, that thism>dc of tnactmtnt must be considered as dictated by the constitution of the empire. Edwardwas the supreme lord of the Northumbrians, but more than a century elapsed beforethey obeyed bis decrees. The laws of the glorious Athelstano had no effect in Kent*(county,) the dependent appanage of his crown, until sanctioned by the Witan of theshire (county court). And the power of Canute himself, the ' King of all England/does not seem to have compelled the Northumbrians to receive his code, until the reignof the Confessor, when such acceptance became a part of the compact upon the accessionof a new earl.

Legislation constituted but a small portion of the ordinary business transacted by theImperial Witenagemot. The wisdom of the assembly was shown in avoiding un-necessary change. Consisting principally of traditionary usages and ancestorial customs,the law was upheld by opinion. The people considered their jurisprudence as a part of theirinheritance. Their privileges and their duties were closely conjoined; most frequently,the statutes themselves were only affirmances of ancient customs^ or declaratory enactments.In the Anglo-Saxon commonwealth, therefore, the legislative functions of the Witena-gemot were of far less importance than the other branches of its authority. * * Themembers of the Witenagemot were the ' Pares Curias' (Peers of Court) of the kingdom.How far, on these occasions, their opinion or their equity controlled the power of thecrown, cannot be ascertained. But the form of inserting their names in the * TestingClause * was retained under the Anglo-Norman reigns ; and the sovereign, who sub-mitted bia Charter to the judgment of the Proceres, professed to be guided by the

THE CORONATION OATH. 1 0 9

opinion which they gave. As the «Pares* of the empire, the Witenagemot decidedthe disputes between the great vassals of the crown. * • The jurisdiction exercisedin the Parliament of Edward I., when the barony of a Lord-Marcher became thesubject of litigation, is entirely analogous to the proceedings thus adopted by the greatcouncil of Edward, the son of Alfred, the Anglo-Saxon king.

In this assembly, the king, the prelates, the dukes, the ealdormen, and the opti-mateg passed judgment upon all great offenders. * *

The sovereign could not compel the obedience of the different nations composing the An-glo-Saxon empire. Hence, it became more necessary for him to conciliate their opinion*,if he solicited any service from a vassal prince or a vassal state beyond the ordinaryterms of the compact; still more so, when he needed the support of a free burgh orcity. And we may view the assembly (the Witenagemot) as partaking of the oharao-ter of a political congress, in which the liegemen of the crown, or the communities pro-tected by the ' Basileus,' (sovereign,) were asked or persuaded to relieve the exigenoesof the state, or to consider those measures which might be required for the oommonweal. The sovereign was compelled to parley with his dependents.

It may be doubted whether any one member of the empire had power to legislatefor any other member. The Regulus of Cumbria was unaffected by the vote of theEarl of East Angliae, if he chose to stand out against it. These dignitaries constituteda congress, in which the sovereign could treat more conveniently and effectually withhis vassals than by separate negotiations. * * But the determinations of the Witanbound those only who were present, or who oonourred in the proposition; and a vassaldenying his assent to the grant, might assert that the engagement which he had con-tracted with his superior did not involve any pecuniary subsidy, but only rendered himliable to perform service in the field." — 1 Pal grave's Rise and Progress of the EnglishCommonwealth, 637 to 642.

10

CHAPTER IY.

THE RIGHTS AND DUTIES OP JURIES IN CIVIL SUITSl

THE evidence already given in the preceding chapters provesthat the rights and duties of jurors, in civil suits, were ancientlythe same as in criminal ones; that the laws of the king wereof no obligation upon the consciences of the jurors, any fur-ther than the laws were seen by them to be just; that veryfew laws were enacted applicable to civil suits; that when anew law was enacted, the nature of it could have been knownto the jurors only by report, and was very likely not to beknown to them at all -r that nearly all the law involved in civilsuits was unwritten ; that there was usually no one in attend-ance upon juries who could possibly enlighten them, unless it!were sheriffs, stewards, and bailiffs, who were unquestionablytoo ignorant and untrustworthy to instruct them authorita-tively ; that the jurors must therefore necessarily have judgedfor themselves of the whole case; and that, as a general rule,they could judge of it by no law but the law of nature, or theprinciples of justice as they existed in their own minds.

The ancient oath of jurors in civil suits, viz., that "theywould make known the truth according to their consciences,"implies that the jurors were above the authority of all legisla-tion. The modern oath, in England, viz., that they " will loeliand truly try the issue between the parties, and a true verdictgive, according to the evidence," implies the same thing. Ifthe laws of the king had been binding upon a jury, theywould have been sworn to try the eases according to law, oraccording to the laws.

The ancient writs in civil suits, as given in Glanviller

(within the half century before Magna Carta,) to wit, " Sum-mon twelve free and legal men, (or sometimes twelve knights,)to be in court, prepared upon their oaths to declare whether A

RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS. I l l

w B have the greater right to the land in question" indicatethat the jurors judged of the whole matter on their con-sciences only.

The language of Magna Carta, already discussed, estab-lishes the same point; for, although some of the words, suchas "outlawed," and "exiled," would apply only to criminalcases, nearly the whole chapter applies as well to civil as tocriminal suits. For example, how could the payment of adebt ever be enforced against an unwilling debtor, if he couldneither be " arrested, imprisoned, nor deprived of his freehold,"and if the king could neither "proceed against him, nor sendany one against him, by force or arms " 3 Yet Magna Cartaas much forbids that any of these things shall be done againsta debtor, as against a criminal, except according to, or i?i exe-cution of, " a judgment of his peers, or tfie law-of the land"— a provision which, it has been shown, gave the jury thefree and absolute right to give or withhold "judgment"according to their consciences, irrespective of all legislation.

The following provisions, in the Magna Carta of John,illustrate the custom of referring the most important matters ofa civil nature, even where the king was a party, to the deter-mination of the peers, or of twelve men, acting by no rulesbut their own consciences. These examples at least showthat there is nothing improbable or unnatural in the idea thatjuries should try all civil suits according to their own judg-ments, independently of all laws of the king.

Chap. 65. "If we have disseized or dispossessed the Welshof any lands, liberties, or other things, without the legal judg-ement of their peers, they shall be immediately restored tochem. And if any dispute arises upon this head, the mattershall be determined in the Marches,* by the judgment of theirpeers" &c.

Chap. 68. " We shall treat with Alexander, king of Scots,concerning the restoring of his sisters, and hostages, and rightsand liberties, in the same form and manner as we shall do tothe rest of our barons of England; unless by the engage-ments, which his father William, late king of Scots, hathentered into with us. it ought to be otherwise; and this shallbe left to the determination of his peers in our court"

* Marches, the limits, or boundaries, between England and Wales.

112 TRIAL BY JURY.

Chap. 56. " All evil customs concerning forests, warrens,and foresters, warreners, sheriffs, and their officers, rivers andtheir keepers, shall forthwith be inquired into in each county,by twelve knights of the same shire, chosen by the most cred-itable persons in the same county, and upon oath ; and withinforty days after the said inquest, be utterly abolished, so asnever to be restored."

There is substantially the same reason why a jury oughtto judge of the justice of laws, and hold all unjust laws in-valid, in civil suits, as in criminal ones. That reason is thenecessity of guarding against the tyranny of the government.Nearly the same oppressions can be practised in civil suits asin criminal ones. For example, individuals may be deprivedof their liberty, and robbed of their property, by judgmentsrendered in civil suits, as well as in criminal ones. If thelaws of the king were imperative upon a jury in civil suits, theking might enact laws giving one man's property to another,or confiscating it to the king himself, and authorizing civil suitsto obtain possession of it. Thus a man might be robbed of hisproperty at the arbitrary pleasure of the king. In fact, all theproperty of the kingdom woirfd be placed at the arbitrary dis-posal of the king, through the judgments of juries in civilsuits, if the laws of the king were imperative upon a jury insuch suits.*

* That the kings would have had no scruples to enact laws for the special purpose ofplundering the people,, by means of the judgments of juries, if they could have gotjuries to acknowledge the authority of their laws* is evident from the audacity withwhich they plundered them, without any judgments of juries to authorize them.

It is not necessary to occupy space here to give details as to these robberies j butonly some evidence of the general fact*

Hallam says* that « For the first three reigns (of the Norman kings) * • the intoJwerable exactions of tribute,, the rapine of purveyance, the iniquity of royal courts, are*continually in the mouths of the historians. * God sees the wretched people/ says the-Saxon Chronicler, *most unjustly-oppressed y first they are despoiled of their posses-,sions^and then butchered.* This was a grievous year (1124). Whoever had anyproperty,, lost it by heavy taxes and unjust decrees**' — 2 Middle Ages, 435-6^

" I n the succeeding reign of John, all the rapacious exactions usual to these Normankings were not only redoubled, but mingled with outrages of tyranny still more intol-erable. * *

"In 1207 John took a seventh of the movables of lay and spiritual persons, allmurmuring,, but none daring to speak against itJ*—Ditto,. 446..

In Hume's account of the extortions of those times,, the following paragraphoccurs:

" But the most barefaced acts of tyranny and oppression were practised against thft

TtlGHTS AND DUTIES OF JURJES IN CIVIL SUITS. 1 1 3

Furthermore, it would be absurd and inconsistent to make3, jury paramount to legislation in criminal suits, and subordi-nate to it in civil suits; because an individual, by resistingthe execution of a civil judgment, founded upon an unjust

Jews, who were entirely out of the protection of the law, and were abandoned to theimmeasurable rapacity of the king and his ministers. Besides many other indignities,•to which they were <5ontinually exposed, it appears that they were once all thrown intoprison, and the sum of 60,000 marks exacted for their liberty. At another time,Isaac, the Jew, paid alone 5100 marks; Brun, 3000 marks; Jurnet, 2000; Bennet, 500.At another, Licorica, widow of David, the Jew of Oxford, was required to pay 0000anarks." — Hume's Hist, Eng., Appendix 2.

Further accounts of the extortions and oppressions of the kings may be found inHume's History, Appendix 2, and in Hallam's Middle Ages, vol. 2, p. 435 to 446.

By Magna Carta John bound himself to make restitution for some *of the spoliationslie had committed upon individuals «* without the legal judgment of their peers." — SeeMagna Carta of John, ch. 60, 61, 65 and 66.

One of the great charges, on account of which the nation rose against John, was,that he plundered individuals of their property,« without legal judgment of thdr peers."Now it was evidently very weak and short-sighted in John to expose himself to such-charges, if his laws were really obligatory upon the peers ; because, in that case, he couldhave enacted any laws that were necessary for his purpose, and then, by civil suits,iave brought the cases before juries for their -"judgment," and thus have accomplishedall his robberies in a perfectly legal manner.

There would evidently have been no sense in these complaints, that he deprived men<of their property ** without legal judgment of their peers," if his laws had been bindingupon the peers; because he could then have made the same spoliations as well withthe judgment of the peers as without it. Taking the judgment of the peers in thematter, would have been only a ridiculous and useless formality, if they were toexercise no discretion or conscience of their own, independently of the Jaws of theking.

It may here be mentioned, in passing, that the same would be true in criminal mat-ters, if the king's laws were obligatory upon juries.

As an illustration of what tyranny the kings would sometimes practise, Hume says :

" It appears from the Great Charter itself, that not only John, a tyrannical prince,and Richard, a violent one, but their father Henry, under whose reign tho prevalenceof gross abuses is the least to be suspected, were accustomed, from their sole authority,•without process of law, to imprison, banish, and attaint the freemen of their kingdom."— Hume, Appendix 2.

The provision, also, in the 64th chapter of Magna Carta, that " all unjust and illegalfines, and all amercements, imposed unjustly, and contrary to the Law of the Land, shallhe entirely forgiven,*' A c ; and the provision, in chapter 61, that the king "will causefull justice to be Administered " in regard to "-all those things, of which any personhas, without legal judgment of his peers, been dispossessed or deprived, either by KingHenry, our father, or our brother, King Richard," indicate the tyrannical practicesthat prevailed.

We are told also that John himself "had dispossessed several great men withoutany judgment of their peers, condemned others to cruel deaths, * * insomuch thatIds tyrannical will stood instead of a law." — Echard's History of England, 106.

these things were very unnecessary and foolish, if his laws were binding

10*

114 TRIAL BY JURY.

law, could give rise to a criminal suit, in which the jurywould be bound to hold the same law invalid. So that, if anunjust law were binding upon a jury in civil suits, a defend-ant, by resisting the execution of the judgment, could, in effect,convert the civil action into a criminal one, in which the jurywould be paramount to the same legislation, to which, in thecivil suit, they were subordinate. In other words, in the crim^inal suit, the jury would be obliged to justify the defendant inresisting a law, which, in the civil suit, they had said he wasbound to submit to.

To make this point plain to the most common mind — sup-pose a law be enacted that the property of A shall be given toB. B brings a civil action to obtain possession of it. If thejury, in this civil suit, are bound to hold the law obligatory,they render a judgment in favor of B, that he be put in pos-session of the property; thereby declaring that A is bound tosubmit to a law depriving him of his property. But when theexecution of that judgment comes to be attempted — that is,when the sheriff comes to take the property for the purposeof delivering it to B — A acting, as he has a natural right todo, in defence of his property, resists and kills the sheriff. Heis thereupon indicted for murder. On this trial his plea is,that in killing the sheriff, he was simply exercising his naturalright of defending his property against an unjust law. Thejury, not being bound, in a criminal case, by the authority ofan unjust law, judge the act on its merits, and acquit the de-fendant— thus declaring that he was not bound to submit tothe same law which the jury, in the civil suit, had, by theirjudgment, declared that he was bound to submit to. Here isa contradiction between the two judgments. In the civil suit,the law is declared to be obligatory upon A; in the criminalsuit, the same law is declared to be of no obligation.

upon juries; because, in that case, he could have prooured the conviction of these menin a legal manner, and thus hare saved the necessity of such usurpation. In short, ifthe laws of the king had been binding upon juries, there is no robbery, vengeance, oroppression, which he could not have accomplished through the judgments of juries.This consideration is sufficient, of itself, to prove that the laws of the king were of noauthority over a jury, in either civil or criminal oases, unless the juries regarded thelaws as just in themselves.

RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS. 1 1 5

It would be a solecism and absurdity in government toallow such consequences as these. Besides, it would be prac-tically impossible to maintain government on such principles ;for no government could enforce its civil judgments, unless itcould support them by criminal ones, in case of resistance. Ajury must therefore be paramount to legislation in both civiland criminal cases, or in neither. If they are paramount inneither, they are no protection to liberty. If they are para-mount in both, then all legislation goes only for what it maychance to be worth in the estimation of a jury.

Another reason why Magna Carta makes the discretion andconsciences of juries paramount to all legislation in civil suits,is, that if legislation were binding upon a jury, the jurors —(by reason of their being unable to read, as jurors in thosedays were, and also by reason of many of the statutes beingunwritten, or at least not so many copies written as that juriescould be supplied with them) — would have been necessitated— at least in those courts in which the king's justices sat — totake the word of those justices as to what the laws of the kingreally were. In other words, they would have been necessi-tated to take the law from the court, as jurors do now.

Now there were two reasons why, as we may rationallysuppose, the people did not wish juries to take their law fromthe king's judges. One was, that, at that day, the peopleprobably had sense enough to see, (what we, at this day, havenot sense enough to see, although we have the evidence of itevery day before our eyes,) that those judges, being dependentupon the legislative power, (the king,) being appointed by it,paid by it, and removable by it at pleasure, would be meretools of that power, and would hold all its legislation obliga-tory, whether it were just or unjust. This was one reason,doubtless, why Magna Carta made juries, in civil suits, para-mount to all instructions of the king's judges. The reasonwas precisely the same as that for making them paramount toall instructions of judges in criminal suits, viz., that the peopledid not choose to subject their rights of property, and all otherrights involved in civil suits, to the operation of such laws asthe king might please to enact. It was seen that to allow theking's judges to dictate the law to the jury would be equiva-

116 TRIAL BY JURY.

lent to making the legislation of the king imperative upon thejury.

Another reason why the people did not wish juries, in civilsuits, to take their law from the king's judges, doubtless was,that, knowing the dependence of the judges upon the king,and knowing that the king would, of course, tolerate no judgeswho were not subservient to his will, they necessarily inferredthat the king's judges would be as corrupt, in the administra-tion of justice, as was the king himself, or as he wished themto be. And how corrupt that was, may be inferred from thefollowing historical facts.

Hume says:

" I t appears that the ancient kings of England put them-selves entirely upon the footing of the barbarous Easternprinces, whom no man must approach without a present, whosell all their good offices, and who intrude themselves intoevery business that they may have a pretence for extortingmoney. Even justice was avowedly bought and sold; theking's court itself, though the supreme judicature of the king-dom, was open to none that brought not presents to the king;the bribes given for expedition, delay, suspension, and doubt-less for the perversion of justice, were entered in the publicregisters of the royal revenue, and remain as monuments ofthe perpetual iniquity and tyranny of the times. The baronsof the exchequer, for instance, the first nobility of the kingdom,were not ashamed to insert, as an article in their records, thatthe county of Norfolk paid a sum that they might be fairlydealt with; the borough of Yarmouth, that the king's charters,which they have for their liberties, might not be violated;Richard, son of Gilbert, for the king's helping him to recoverhis debt from the Jews; * * Serlo, son of Terlavaston, thathe might be permitted to make his defence, in case he wereaccused of a certain homicide; Walter de Burton, for free law,if accused of wounding another; Robert de Essart, for havingan inquest, to find whether Roger, the butcher, and Wace andHumphrey, accused him of robbery and theft out of envy andill-will, or not; William Buhurst, for having an inquest tofind whether he were accused of the death of one Godwin, outof ill-will, or for just cause. I have selected these few in-stances from a great number of the like kind, which Madoxhad selected from a still greater number, preserved in theancient rolls of the exchequer.

Sometimes a party litigant offered the king a certain por-


tion, a half, a third, a fourth, payable out of the debts whichhe, as the executor of justice, should assist in recovering.Theophania de Westland agreed to pay the half of two hun-dred and twelve marks, that she might recover that sumagainst James de Fughleston; Solomon, the Jew, engaged topay one mark out of every seven that he should recover againstHugh de la Hose; Nicholas Morrel promised to pay sixtypounds, that the Earl of Flanders might be distrained to payhim three hundred and forty-three pounds, which the earlhad taken from him; and these sixty pounds were to be paiclout of the first money that Nicholas should recover from theearl." —Hume, Appendix 2.

" In the reign of Henry II., the best and most just of these(the Norman) princes, * * Peter, of Blois, a judicious andeven elegant writer, of that age, gives a pathetic descriptionof the venality of justice, and the oppressions of the poor, * *and he scruples not to complain to the king himself of theseabuses. We may judge what the case would be under thegovernment of worse princes." —Hume, Appendix 2.

Carte says:

" The crown exercised in those days an exorbitant and in-convenient power, ordering the justices of the king's court, insuits about lands, to turn out, put, and keep in possession,which of the litigants they pleased; to send contradictoryorders; and take large sums of money from each; to respiteproceedings; to direct sentences; and the judges, acting bytheir commission, conceived themselves bound to observe suchorders, to the great delay, interruption, and preventing of jus-tice ; at least, this was John's practice." — Carte's Histojy ofEngland, vol. 1, p. 832.

Hallam says:

" But of all the abuses that deformed the Anglo-Saxon gov-ernment, none was so flagitious as the sale of judicial redress.The king, we are often told, is the fountain ot justice; but inthose ages it was one which gold alone could unseal. Menfined (paid tines) to have right done them; to sue in a certaincourt; to implead a certain person; to have restitution ofland which they had recovered at law. From the sale of thatjustice which every citizen has a right to demand, it was aneasy transition to withhold or deny it. Fines were receivedfor the king's help against the adverse suitor; that is, for per-version of justice, or for delay. Sometimes they were paidby opposite parties, and, of course, for opposite ends."—2Middle Ages, 438.

118 TRIAL BY JURY.

In allusion to the provision of Magna Carta on this subject,Hallam says:

" A law which enacts that justice shall neither be sold, de-nied, nor delayed, stamps with infamy that government underwhich it had become necessary." —2 Middle Ages, 451.

Lingard, speaking of the times of Henry II., (say 1184,)says:

" It was universally understood that money possessed greaterinfluence than justice in the royal courts, and instances are onrecord, in which one party has made the king a present to ac-celerate, and the other by a more valuable offer has succeededin retarding a decision. * * But besides the fines paid to thesovereigns, the judges often exacted presents for themselves,and loud complaints existed against their venality and in-justice."—-2 Lingard, 231.

In the narrative of " The costs and charges which I, Richardde Anesty, bestowed in recovering the land of William, myuncle," (some fifty years before Magna Carta,) are the follow-ing items:

" To Ralph, the king's physician, I gave thirty-six marksand one half; to the king an hundred marks; and to the queenone mark of gold." The result is thus stated. "At last,thanks to our lord the king, and by judgment of his court, myuncle's land was adjudged to me."—2 Palgrave's Rise andProgress of the English Commonwealth, p. 9 and 24.

Palgrave also says:" The precious ore was cast into the scales of justice, even

when held by the most conscientious of our Anglo-Saxonkings. A single case will exemplify the practices which pre-vailed. Alfric, the heir of 'Aylwin, the black,' seeks to setaside the death-bed bequest, by which his kinsman bestowedfour rich and fertile manors upon St. Benedict. Alfric, theclaimant, was supported by extensive and powerful con-nexions; and Abbot Alfwine, the defendant, was well awarethat there would be danger in the discussion of the dispute inpublic, or before the Folkmoot, (people's meeting, or countycourt); or, in other words, that the Thanes of the shire woulddo their best to give a judgment in favor of their compeer.The plea being removed into the Royal Court, the abbot actedwith that prudence which so often calls forth the praises of themonastic scribe. He gladly emptied twenty marks of goldinto the sleeve of the Confessor, (Edward,) and five marks ofgold presented to Edith, the Fair, encouraged her to aid the

RIGHTS AND DUTIES OF JURIES IN CIYIL SUITS. 1 1 9

bishop, and to exercise her gentle influence in his favor. Al-fric, with equal wisdom, withdrew from prosecuting the hope-less cause, in which his opponent might possess an advocatein the royal judge, and a friend in the king's consort. Bothparties, therefore, found it desirable to come to an agreement."— 1 Palgrave's Rise and Progress, fyc, p. 650.

But Magna Carta has another provision for the trial of civilsuits, that obviously had its origin in the corruption of theking's judges. The provision is, that four knights, to bechosen in every county, by the people of the county, shall sitwith the king's judges, in the Common Pleas, in jury trials,(assizes,) on the trial of three certain kinds of suits, that wereamong the most important that were tried at all. The reasonfor this provision undoubtedly was, that the corruption andsubserviency of the king's judges were so well known, thatthe people would not even trust them to sit alone in a jury trialof any considerable importance. The provision is this:

Chap. 22, (of John's Charter.) " Common Pleas shall notfollow our court, but shall be holden in some certain place.Trials upon the writ of novel disseisin, and of Mort d'Ancester,and of Darrein Presentment, shall be taken but in their propercounties, and after this manner: We, or, if we should be outof our realm, our chief justiciary, shall send two justiciariesthrough every county four times a year;* who, with fourknights chosen out of every shire, by the pe&ple, shall holdthe assizes (juries) in the county, on the day and at the placeappointed"

It would be very unreasonable to suppose that the king'sjudges were allowed to dictate the law to the juries, when thepeople would not even suffer them to sit alone in jury trials,but themselves chose four men to sit with them, to keep themhonest. +

• By the Magna Carta of Henry III. this is changed to once a year.t From the provision of Magna Carta, cited in the text, it must be inferred that there

can be no legal trial by jury, in civil cases, if only the king's justices preside ; that, tomake the trial legal, there must be other persons, chosen by the people, to sit withthem; the object being to prevent the jury's being deceived by the justices. I thinkwe must also infer that the king's justices could sit only in the three actions speciallymentioned. We cannot go beyond the letter of Magna Carta, in making innovationsupon the common law, which required all presiding officers in jury trials to be electedby the people.

120 TRIAL BY JURY.

This practice of sending the king's judges into the countiesto preside at jury trials, was introduced by the Norman kings.Under the Saxons it was not so. No officer of the king wasallowed to preside at a jury trial; but only magistrates chosenby the people.*

But the following chapter of John's charter, which imme-diately succeeds the one just quoted, and refers to the samesuits, affords very strong, not to say conclusive, proof, thatjuries judged of the law in civil suits — that is, made the law,so far as their deciding according to their own notions of jus-tice could make the law.

Chap. 23. " And if, on the county day, the aforesaid assizescannot be taken, so many knights and freeholders shall remain,of those who shall have been present on said day, as that thejudgments may be rendered by them, whether the business bemore or less."

* " The earls, sheriffs, and head-boroughs were annually elected in the full folcmote,(people's meeting)." — Introduction to Gilbert's History of the Common Pleas, p. 2, note.

" It was the especial province of the earldomen or earl to attend the shyre-meeting,(the county court,) twice a year, and there officiate as the county judge in expoundingthe secular laws, as appears by the fifth of Edgar's laws." —Same, p. 2, note.

" Every ward had its proper alderman, who was chosen, and not imposed by theprince." — Same, p. 4, text.

" As the aldermen, or earls, were always chosen " (by the people) " from among thegreatest thanes, who in those times were generally more addicted to arms than to letters,they were but ill-qualified for the administration of justice, and performing the civilduties of their office." — 3 Henry's History of Great Britain, 343.

" But none of these thanes were annually elected in the full folomote, (people'smeeting,) as the earls, sheriffs, and head-boroughs were; nor did King Alfred (as thisauthor suggests) deprive the people of the election of those last mentioned magistratesand nobles, much less did he appoint them himself."-— Introd. to Gilbert's Hist. Com.Pleas, p. 2, note.

" The sheriff was usually not appointed by the lord, but elected by the freeholdersof the district." — Political Dictionary, word Sheriff.

" Among the most remarkable of the Saxon laws we may reckon * * the electionof their magistrates by the people, originally even that of their kings, till dear-boughtexperience evinced the convenience and necessity of establishing an hereditary successionto the crown. But that (the election) of all subordinate magistrates, their military officersor heretochs, their sheriffs, their conservators of the peace, their coroners, their portreeves,(since changed into mayors and bailiffs,) and even their tithing-men and borsholders atthe last, continued, some, till the Norman conquest, others for two centuries after, andsome remain to this day." —4 Blackstone, 413.

"The election of sheriffs was left to the people, according to ancient usage." — St.West. I, o. 27. — Crabbe's History of English Law, 181.


The meaning of this chapter is, that so many of the civilsuits, as could not be tried on the day when the king's justiceswere present, should be tried afterwards, by the four knightsbefore mentioned, and the freeholders, that is, the jury. It mustbe admitted, of course, that the juries, in these cases, judgedthe matters of law, as well as fact, unless it be presumed thatthe knights dictated the law to the jury — a thing of whichthere is no evidence at all.

As a final proof on this point, there is a statute enacted sev-enty years after Magna Carta, which, although it is contraryto the common law, and therefore void, is nevertheless goodevidence, inasmuch as it contains an acknowledgment, on thepart of the king himself, that juries had a right to judge ofthe whole matter, law and fact, in civil suits. The provisionis this:

" It is ordained, that the justices assigned to take the assizes,shall not compel the jurors to say precisely whether it be dis-seisin, or not, so that they do show the truth of the deed, andseek aid of the justices. But if they will, of their own accord,say that it is disseisin, or not, their verdict shall be admittedat their own peril." —13 Edward L, st. 1, ch. 3, sec. 2. (1285.)

The question of "disseisin, or not," was a question of law,as well as fact. This statute, therefore, admits that the law,as well as the fact, was in the hands of the jury. The statuteis nevertheless void, because the king had no authority to givejurors a dispensation from the obligation imposed upon themby their oaths and the "law of the land," that they should"make known the truth according their (own) consciences."This they were bound to do, and there was no power in the.king to absolve them from the duty. And the attempt of theking thus to absolve them, and authorize them to throw thecase into the hands of the judges for decision, was simply anillegal and unconstitutional attempt to overturn the " law ofthe land," which he was sworn to maintain, and gather powerinto his own hands, through his judges. He had just as muchconstitutional power to enact that the jurors should not be com-pelled to declare the facts, but that they might leave them tobe determined by the king's judges, as he had to enact that they

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should not be compelled to declare the law, but might leave itto be decided by the king's judges. It was as much the legalduty of the jury to decide the law as to decide the fact; andno law of the king could affect their obligation to do either-And this statute is only one example of the numberless con-trivances and usurpations which have been resorted to, for thepurpose of destroying the original and genuine trial by jury.

CHAPTER T,

OBJECTIONS ANSWERED

THE following objections will be made to the doctrines andthe evidence presented in the preceding chapters.

1. That it is a maxim of the law, that the judges respondto the question of law, and juries only to the question of fact

The answer to this objection is, that, since Magna Carta,judges have had more than six centuries in which to inventand promulgate pretended maxims to suit themselves; andthis is one of them. Instead of expressing the law, it expressesnothing but the ambitious and lawless will of the judgesthemselves, and of those whose instruments they are.*

2. It will be asked, Of what use are the justices, if thejurors judge both of law and fact ?

The answer is, that they are of use, 1. To assist and en-lighten the jurors, if they can, by their advice and informa-tion ; such advice and information to be received only for whatthey may chance to be worth in the estimation of the jurors.2. To do anything that may be necessary in regard to grant-ing appeals and new trials.

3. It is said that it would be absurd that twelve ignorantmen should have power to judge of the law, while justiceslearned in the law should be compelled to sit bjr and see thelaw decided erroneously.

One answer to this objection is, that the powers of juries

* Judges do not even Jive up to that part of their own maxim, which requires jurorsto try the matter of fact. By dictating to them the laws of evidence, — that is, bydictating what evidence they may hear, and what they may not hear, and also by dic-tating to them rules for weighing such evidence as they permit them to hear, — theyof necessity dictate the conclusion to which they shall arrive. And thus the courtreally tries the question of fact, as well as the question of law, in every cause. It isclearly impossible, in the nature of things, for a jury to try a question of fact, withouttrying every question of law on which the fact depends.

1 2 4 TRIAL BY JURY.

are not granted to them on the supposition that they know thelaw better than the justices; but on the ground that the jus-tices are untrustworthy, that they are exposed to bribes, arethemselves fond of power and authority, and are also thedependent and subservient creatures of the legislature; andthat to allow them to dictate the law, would not only exposethe rights of parties to be sold for money, but would be equiv-alent to surrendering all the property, liberty, and rights of thepeople, unreservedly into the hands of arbitrary power, (thelegislature,) to be disposed of at its pleasure. The powers ofjuries, therefore, not only place a curb upon the powers oflegislators and judges, but imply also an imputation upon theirintegrity and trustworthiness; and these are the reasons whylegislators and judges have formerly entertained the intensesthatred of juries, and, so fast as they could do it withoutalarming the people for their liberties, have, by indirection,denied, undermined, and practically destroyed their power.And it is only since all the real power of juries has been de-stroyed, and they have become mere tools in the hands oflegislators and judges, that they have become favorites withthem.

Legislators and judges are necessarily exposed to all thetemptations of money, fame, and power, to induce them todisregard justice between parties, and sell the rights, and vio-late the liberties of the people. Jurors, on the other hand,are exposed to none of these temptations. They are not liableto bribery, for they are unknown to the parties until theycome into the jury-box. They can rarely gain either fame,power, or money, by giving erroneous decisions. Their officesare temporary, and they know that when they shall have exe-cuted them, they must return to the people, to hold all theirown rights in life subject to the liability of such judgments, bytheir successors, as they themselves have given an examplefor. The laws of human nature do not permit the suppositionthat twelve men, taken by lot from the mass of the people,and acting under such circumstances, will all prove dishonest.It is a supposable case that they may not be sufficiently en-lightened to know and do their whole duty, in all cases what-soever ; but that they should all prove dishonesty is not within

OBJECTIONS ANSWERED. 125

the range of probability. A jury, therefore, insures to us —what no other court does — that first and indispensablerequisite in a judicial tribunal, integrity.

4. It is alleged that if juries are allowed to judge of thelaw, they decide the laic absolutely; that their decision mustnecessarily stand, be it right or wrong; and that this powerof absolute decision would be dangerous in their hands, byreason of their ignorance of the law.

One answer is, that this power, which juries have of judg-ing of the law, is not a power of absolute decision in all cases.For example, it is a power to declare imperatively that aman's property, liberty, or life, shall not be taken from him;but it is not a power to declare imperatively that they shall betaken from him.

Magna Carta does not provide that the judgments of thepeers shall be executed ; but only that no other than their judg-ments shall ever be executed, so far as to take a party's goods,rights, or person, thereon.

A judgment of the peers may be reviewed, and invalidated,and a new trial granted. So that practically a jury has noabsolute power to take a party's goods, rights, or person.They have only an absolute veto upon their being taken bythe government. The government is not bound to do every-thing that a jury may adjudge. It is only prohibited fromdoing anything — (that is, from taking a party's goods, rights,or person) — unless a jury have first adjudged it to be done.

But it will, perhaps, be said, that if an erroneous judgmentof one jury should be reaffirmed by another, on a new trial,it must then be executed. But Magna Carta does not com-mand even this — although it might, perhaps, have been rea-sonably safe for it to have done so — for if two juries unan-imously affirm the same thing, after all the light and aid thatjudges and lawyers can afford them, that fact probably fur-nishes as strong a presumption in favor of the correctness oftheir opinion, as can ordinarily be obtained in favor of ajudgment, by any measures of a practical character for theadministration of justice. Still, there is nothing in MagnaCarta that compels the execution of even a second judgmentof a jury. The only injunction of Magna Carta upon the

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government, as to what it shall do, on this point, is that itshall "do justice and right," without sale, denial, or delay.But this leaves the government all power of determining whatis justice and right, except that it shall not consider anythingas justice and right — so far as io carry it into executionagainst the goods, rights, or person of a party — unless it besomething which a jury have sanctioned.

If the government had no alternative but to execute alljudgments of a jury indiscriminately, the power of jurieswould unquestionably be dangerous; for there is no doubt thatthey may sometimes give hasty and erroneous judgments. Butwhen it is considered that their judgments can be reviewed,and new trials granted, this danger is, for all practical pur-poses, obviated.

If it be said that juries may successively give erroneousjudgments, and that new trials cannot be granted indefinitely,the answer is, that so far as Magna Carta is concerned, thereis nothing to prevent the granting of new trials indefinitely, ifthe judgments of juries are contrary to "justice and right."So that Magna Carta does not require any judgment what-ever to be executed — so far as to take a party's goods, rights,or person, thereon — unless it be concurred in by both courtand jury.

Nevertheless, we may, for the sake of the argument, sup-pose the existence of a practical, if not legal, necessity, forexecuting some judgment or other, in cases where juries per-sist in disagreeing with the courts. In such cases, the principleof Magna Carta unquestionably is, that the uniform judg-ments of successive juries shall prevail over the opinion of thecourt. And the reason of this principle is obvious, viz., thatit is the will of the country, and not the will of the court, orthe government, that must determine what laws shall be estab-lished and enforced; that the concurrent judgments of success-ive juries, given in opposition to all the reasoning whichjudges and lawyers can offer to the contrary, must necessa-rily be presumed to be a truer exposition of the will of thecountry, than are the opinions of the judges.

But it may be said that, unless jurors submit to the controlof the court, in matters of law, they may disagree among


themselves, and never come to any judgment; and thus justicefail to be done.

Such a case is perhaps possible; but, if possible, it can occurbut rarely; because, although one jury may disagree, a suc-cession of juries are not likely to disagree — that is, on 'mattersof natural law, or abstract justice* If such a thing shouldoccur, it would almost certainly be owing to the attempt ofthe court to mislead them. It is hardly possible that anyother cause should be adequate to produce such an effect; be-cause justice comes very near to being a self-evident principle.The mind perceives it almost intuitively. If, in addition to this,the court be uniformly on the side of justice, it is not a reason-able supposition that a succession of juries should disagreeabout it. If, therefore, a succession of juries do disagree onthe law of anv case, the presumption is, not that justice failsof being done, but that injustice is prevented — that injustice,which would be done, if the opinion of the court were sufferedto control the jury.

For the sake of the argument, however, it may be admittedto be possible that justice should sometimes fail of being donethrough the disagreements of jurors, notwithstanding all thelight which judges and lawyers can throw upon the questionin issue. If it be asked what provision the trial by jurymakes for such cases, the answer is, it makes none; and jus-tice must fail of being done) from the want of its being madesufficiently intelligible.

Under the trial by jury, justice can never be done — that is,by a judgment that shall take a party's goods, rights, or per-son — until that justice can be made intelligible or perceptibleto the minds of all the jurors j or, at least, until it obtain thevoluntary assent of all — an assent, which ought not to begiven until the justice itself shall have become perceptibleto all.

• Most disagreements of juries are on matters of fact, which are admitted to be with-in their province. We have little or no evidence of their disagreements on matters ofnatural justice. The disagreements of courts on matters of law, afford little or noevidence that juries would also disagree on matters of law — that is, of jvxtice ; be-cause the disagreements of courts are generally on matters of legislation, and not onthose principles of abstract justice, by which juries would be governed, and in regardto whioh the minds of men are nearly unanimous.

128 TRIAL BY JURY.

The principles of the trial by jury, then, are these:1. That, in criminal cases, the accused is presumed inno-

cent.2. That, in civil cases, possession is presumptive proof of

property; or, in other words, every man is presumed to be therightful proprietor of whatever he has in his possession.

3. That these presumptions shall be overcome, in a courtof justice, only by evidence, the sufficiency of which, andby law, the justice of which, are satisfactory to the under-standing and consciences of all the jurors.

These are the bases on which the trial by jury places theproperty, liberty, and rights of every individual.

But some one will say, if these are the principles of thetrial by jury, then it is plain that justice must often fail to bedone. Admitting, for the sake of the argument, that this maybe true, the compensation for it is, that positive injustice willalso often fail to be done; whereas otherwise it would be donefrequently. The very precautions used to prevent injusticebeing done, may often have the effect to prevent justice beingdone. But are we, therefore, to take no precautions againstinjustice? By no means, all will agree. The question thenarises — Does the trial by jury, as here explained, involvesuch extreme and unnecessary precautions against injustice, asto interpose unnecessary obstacles to the doing of justice?Men of different minds may very likely answer this questiondifferently, according as they have more or less confidence inthe wisdom and justice of legislators, the integrity and inde-pendence of judges, and the intelligence of jurors. Thismuch, however, may be said in favor of these precautions,viz., that the history of the past, as well as our constant pres-ent experience, prove how much injustice may, and certainlywill, be done, systematically and continually, for the want ofthese precautions — that is, while the law is authoritativelymade and expounded by legislators and judges. On the otherhand, we have no such evidence of how much justice mayfail to be done, by reason of these precautions — that is, byreason of the law being left to the judgments and consciencesof jurors. We can determine the former point — that is, howmuch positive injustice is done under the first of these two


systems — because the system is in full operation; but wecannot determine how much justice would fail to be doneunder the latter system, because we have, in modern times,had no experience of the use of the precautions themselves.In ancient times, when these precautions were nominally inforce, such was the tyranny of kings, and such the poverty,ignorance, and the inability of concert and resistance, on thepart of the people, that the system had no full or fair opera-tion. It, nevertheless, under all these disadvantages, impresseditself upon the understandings, and imbedded itself in thehearts, of the people, so as no other system of civil liberty hasever done.

But this view of the two systems compares only the injus-tice done, and the justice omitted to fee done, in the individualcases adjudged, without looking beyond them. And somepersons might, on first thought, argue that, if justice failed ofbeing done under the one system, oftener than positive injus-tice were done under the other, the balance was in favor ofthe latter system. But such a weighing of the two systemsagainst each other gives no true idea of their comparativemerits or demerits; for, possibly, in this view alone, the balancewould not be very great in favor of either. To compare, orrather to contrast, the two, we must consider that, under thejury system, the failures to do justice would be only rare andexceptional cases; and would be owing either to the intrinsicdifficulty of the questions, or to the fact that the parties hadtransacted their business in a manner unintelligible to thejury, and the effects would be confined to the individual orindividuals interested in the particular suits. No permanentlaw would be established thereby destructive of the rights ofthe people in other like cases. And the people at large wouldcontinue to enjoy all their natural rights as before. But underthe other system, whenever an unjust law is enacted by thelegislature, and the judge imposes it upon the jury as author-itative, and they give a judgment in accordance therewith, theauthority of the law is thereby established, and the wholepeople are thus brought under the yoke of that law; becausethey then understand that the law will be enforced againstthem in future, if they presume to exercise their rights, or

1 3 0 TRIAL BY JU&Y.

refuse to comply with the exactions of the law. In this man-ner all unjust laws are established, and made operative againstthe rights of the people.

The difference, then, between the two systems is this : • Un-der the one system, a jury, at distant intervals, would (notenforce any positive injustice, but only) fail of enforcing jus-tice, in a dark and difficult case, or in consequence of theparties not having transacted their business in a manner intel-ligible to a jury; and the plaintiff would thus fail of obtainingwhat was rightfully due him. And there the matter wouldend, for evil, though not for good; for thenceforth parties,warned of the danger of losing their rights, would be carefulto transact their business in a more clear and intelligible man-ner. Under the other system — the system of legislative andjudicial authority — positive injustice is not only done in everysuit arising under unjust laws, — that is, men's property,liberty, or lives are not only unjustly taken on those particularjudgments, — but the rights of the whole people are struckdown by the authority of the laws thus enforced, and a wide-sweeping tyranny at once put in operation.

But there is another ample and conclusive answer to theargument that justice would often fail to be done, if jurorswere allowed to be governed by their own consciences, insteadof the direction of the justices, in matters of law. That an-swer is this:

Legitimate government can be formed only by the voluntaryassociation of all who contribute to its support. As a volun-tary association, it can have for its objects only those thingsin which the members of the association are all agreed. If,therefore, there be any justice, in regard to which all the par-ties to the government are not agreed, the objects of the asso-ciation do not extend to it.*

* This is the principle of all voluntary associations whatsoever. No voluntary^nation was ever formed, and in the nature of things there never can be one formed, forthe accomplishment of any objects except those in which all the parties to the associa-tion are agreed. Government, therefore, must be kept within these limits, or it is nolonger a voluntary association of all who contribute to its support, but a mere tyranny•established by a part over the rest.

All, or nearly all, voluntary associations give to a majority, or to some other portionof the members less than the whole, the right to use some limited discretion as to the

OBJECTIONS ANSWERED. 1 3 1

If any of the members wish more than this,.— if they claimto have acquired a more extended knowledge of justice thanis common to all, and wish to have their pretended discoveriescarried into effect, in reference to themselves, — they must eitherform a separate association for that purpose, or be content towait until they can make their views intelligible to the peopleat large. They cannot claim or expect that the whole peopleshall practise the folly of taking on trust their pretended supe-rior knowledge, and of committing blindly into their hands alltheir own interests, liberties, and rights, to be disposed of onprinciples, the justness of which the people themselves cannotcomprehend.

A government of the whole, therefore, must necessarily con-fine itself to the administration of such principles of law asall the people, who contribute to the support 'of the govern-ment, can comprehend and see the justice of. And it can beconfined within those limits only by allowing the jurors, who-represent all the parties to the compact, to judge of the law,and the justice of the law, in all cases whatsoever. And ifany justice be left undone, under these circumstances, it is ajustice for which the nature of the association does not provide,which the association does not undertake to do, and which, asan association, it is under no obligation to do.

The people at large, the unlearned and common people,have certainly an indisputable right to associate for the estab-lishment and maintenance of such a government as they them-selves see the justice of, and feel the need of, for the promotionof their own interests, and the safety of their own rights,without at the same time surrendering all their property, lib-erty, and rights into the hands of men, who, under the pre-tence of a superior and incomprehensible knowledge of justice,may dispose of such property, liberties, and rights, in amanner to suit their own selfish and dishonest purposes.

to be used to accomplish the ends in view; but the ends themselves to be accom-plished are always precisely defined, and are such as every member neoessarily agreesto, else he would not voluntarily join the association.

Justice is the object of government, and those who support the government, must beagreed as to the justice to be executed by it, or they cannot rightfully unit© in main-taining the government itself.

132 TRIAL BY JURY.

If a government were to be established and supported solelyby that portion of the people who lay claim to superior knowl-edge, there would be some consistency in their saying that thecommon people should not be received as jurors, with powerto judge of the justice of the laws. But so long as the wholepeople (or all the male adults) are presumed to be voluntaryparties to the government, and voluntary contributors to itssupport, there is no consistency in refusing to any one of themmore than to another the right to sit as juror, with full powerto decide for himself whether any law that is proposed to beenforced in any particular case, be within the objects of theassociation.

The conclusion, therefore, is, that, in a government formedby voluntary association, or on the theory of voluntary asso-ciation, and voluntary support, (as all the North Americangovernments are,) no law can rightfully be enforced by theassociation in its corporate capacity, against the goods,rights, or person of any individual, except it be such as allthe members of the association agree that it may enforce. Toenforce any other law, to the extent of taking a 'man'sgoods, rights, or person, would be making some of the partiesto the association accomplices in what they regard as acts ofinjustice. It would also be making them consent to,what theyregard as the destruction of their own rights. These arethings which no legitimate system or theory of governmentcan require of any of the parties to it.

The mode adopted, by the trial by jury, for ascertainingwhether all the parties to the government do approve of a par-ticular law, is to take twelve men at random from the wholepeople, and accept their unanimous decision as representingthe opinions of the whole. Even this mode is not theoreticallyaccurate; for theoretical accuracy would require that everyman, who was a party to the government, should individuallygive his consent to the enforcement of every law in every sep-arate case. But such a thing would be impossible in practice.The consent of twelve men is therefore taken instead; withthe privilege of appeal, and (in case of error found by thethe appeal court) a new trial, to guard against possible mis-takes. This system, it is assumed, will ascertain the sense of


the whole people — " the country " — with sufficient accuracyfor all practical purposes, and with as much accuracy as ispracticable without too great inconvenience and expense.

5. Another objection that will perhaps be made to allowingjurors to judge of the law, and the justice of the law, is, thatthe law would be uncertain.

If, by this objection, it be meant that the law would be un-certain to the minds of the people at large, so that they wouldnot know what the juries would sanction and what condemn,and would not therefore know practically what their ownrights and liberties were under the law, the objection is thor-oughly baseless and false. No system of law that was everdevised could be so entirely intelligible and certain to theminds of the people at large as this. Compared with it, thecomplicated systems of law that are compounded of the lawof nature, of constitutional grants, of innumerable and inces-santly changing legislative enactments, and of countless andcontradictory judicial decisions, with no uniform principle ofreason or justice running through them, are among the blind-est of all the mazes in which unsophisticated minds were everbewildered and lost. The uncertainty of the law under thesesystems has become a proverb. So great is this uncertainty,that nearly all men, learned as well as unlearned, shun thelaw as their enemy, instead of resorting to it for protection.They usually go into courts of justice, so called, only as mengo into battle — when there is no alternative left for them.And even then they go into them as men go into dark laby-rinths and caverns—with no knowledge of their own, buttrusting wholly to their guides. Yet, less fortunate than otheradventurers, they can have little confidence even in theirguides, for the reason that the guides themselves know littleof the mazes they are threading. They know the mode andplace of entrance; but what they will meet with on theirway, and what will be the time, mode, place, or condition oftheir exit; whether they will emerge into a prison, or not;whether wholly naked and destitute, or not; whether withtheir reputations left to them, or not; and whether in time oreternity; experienced and honest guides rarely venture to pre-dict. Was there ever such fatuity as that of a nation of men

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madly bent on building up such labyrinths as these, for noother purpose than that of exposing all their rights of reputa-tion, property, liberty, and life, to the hazards of being lost inthem, instead of being content to live in the light of the openday of their own understandings ?

What honest, unsophisticated man ever found himself in-volved in a lawsuit, that he did not desire, of all things, thathis cause might be judged of on principles of natural justice,as those principles were understood by plain men like himself?He would then feel that he could foresee the result. Theseplain men are the men who pay the taxes, and support thegovernment. Why should they not have such an administra-tion of justice as they desire, and can understand?

If the jurors were to judge of the law, and the justice ofthe law, there would be something like certainty in the ad-ministration of justice, and in the popular knowledge of thelaw, and men would govern themselves accordingly. Therewould be something like certainty, because every man hashimself something Tike definite and clear opinions, and alsoknows something of the opinions of his neighbors, onr mattersof justice. And he would know that no statute, unless it wereso clearly just as to command the unanimous assent of twelvemen, who should be taken at random from the whole commu-nity, could be enforced so as to take from him his reputation,property, liberty, or life. What greater certainty can menrequire or need, as to the laws under which they are to live 1If a statute were enacted by a legislature, a man, in order toknow what was its true interpretation, whether it were consti-tutional, and whether it would be enforced, would not betinder the necessity of waiting for years until some suit hadarisen and been carried through all the stages of judicial pro*-ceeding, to a final decision. He would need only to use hisown reason as to its meaning and its justice, and then talkwith his neighbors on the same points. Unless he found themnearly unanimous in their interpretation and approbation of it,he would conclude that juries would not unite in enforcing it,and that it would consequently be a dead letter. And hewould be safe in coming to this conclusion.

There would be something like certainty in the administra-


tion of justice, and in the popular knowledge of the law, forthe further reason that there would be little legislation, andmen's rights-would be left to stand almost solely upon the lawof nature, or what was once called in England " the commonlaw" (before so much legislation and usurpation had becomeincorporated info the common law,) — in other words, uponIhe principles of natural justice.

Of the certainty of this law of nature, or the ancient Englishcommon law, I may be-excused for repeating here what I havesaid on another occasion.

" Natural law, so far from being uncertain, when comparedwith statutory and constitutional law, is the only thing thatgives any certainty at all to a very large portion of our stat-utory and constitutional law. The reason is this. The wordsin which statutes and constitutions are written are susceptibleof so many different meanings, — meanings widely differentfrom, often directly opposite to, each other, in their bearingupon men's rights, — that, unless there were some Rile of inter-pretation for determining which of these various and oppositemeanings are the true ones, there could be no certainty at allas to the meaning of the statutes and constitutions themselves.Judges could make almost anything they should please out ofthem. Hence the necessity of a rule of interpretation. Andthis ride is, that the language of statutes and constitutionsshall be construed, as nearly as possible, consistently withnatural law.

The rule assumes, wfcat is true, that natural law is athing certain in itself; also that it is capable of being learned.It assumes, furthermore, that it actually is understood by thelegislators and judges who make and interpret the written law.Of necessity, therefore, it assumes further, that they {the legis-lators and judges) are incompetent to make and interpret thetpj'itten law, unless they previously understand the naturallaw applicable to the same subject. It also assumes that thepeople must understand the natural lav/, before they can un-derstand the written law.

It is a principle perfectly familiar to lawyers, and one thatmust be perfectly obvious to every other man that will reflecta moment, that, as a general rule, no one can know what thewritten law is, until he knows what it ought to be; that menare liable to be constantly misled by the various and conflict-ing senses of the same words, unless they perceive the truelegal sense in which the words ought to be taken. And thistrue legal sense is the sense that is most nearly •consistent with

136 TRIAL BY JURY.

natural law of any that the words can be made to bear, con-sistently with the laws of language, and appropriately to thesubjects to which they are applied.

Though the words contain the law, the words themselvesare not the law. Were the words themselves the law, eachsingle Written law Would be liable to embrace many differentlaws, to wit, as many different laws as there were differentsenses, and different combinations of senses, in which eachand all the Words Were capable of being taken.

Take, for example, the Constitution of the United States*By adopting one or another sense of the single word "free,"the whole instrument is changed. Yet the word free is capableof some ten or twenty different senses. So that, by changingthe sense of that single word, some ten or twenty different con-stitutions could be made out of the same written instrumentBut there are, we will suppose, a thousand other words in theconstitution, each of which is capable of from two to ten differ-ent senses. So that, by changing the sense of only a singleword at a time, several thousands of different constitutionswould be made. But this is not all. Variations could also bemade by changing the senses of two or more words at a time,and these variations could be run through all the changes andcombinations of senses that these thousand words are capableof. We see, then, that it is no more than a literal truth, thatout of that single instrument, as it now stands, without alter-ing the location of a single word, might be formed, by con-struction and interpretation, more different constitutions thanfigures can well estimate.

But each written law, in order to be a law, must be takenonly in some one definite and distinct sense; and that definiteand distinct sense must be selected from the almost infinitevariety of senses which its words are capable of. How is thisselection to be made 1 It can be only by the aid of that per-ception of natural law, or natural justice, which men naturallypossess.

Such, then, is the comparative certainty of the natural andthe written law. Nearly all the certainty there is in the latter,so far as it relates to principles, is based upon, and derivedfrom, the still greater certainty of the former. In fact, nearlyall the uncertainty of the laws under which we live, — whichare a mixture of natural and written laws, — arises from thedifficulty of construing, or, rather, from the facility of miscon-struing, the written law; while natural law has nearly orquite the same certainty as mathematics On this point, SirWilliam Jones, one of the most learned judges that have everlived, learned in Asiatic as well as European law, says, — and


the fact should be kept forever in mind, as one of the mostimportant of all truths: — " It is pleasing to remark the simi-larity, or, rather, the identity of those conclusions which pure,unbiassed reason, in all ages and nations, seldom fails to draw,in such juridical inquiries as are not fettered and manacledby positive institutions" * In short, the simple fact that thewritten law must be interpreted by the natural, is, of itself, asufficient confession of the superior certainty of the latter.

The writteu law, then, even where it can be construedconsistently with the natural, introduces labor and obscurity,instead of shutting them out. And this must always be thecase, because words do not create ideas, but only recall them;and the same word may recall many different ideas. For thisreason, nearly all abstract principles can be seen by the singlemind more clearly than they can be expressed by words toanother. This is owing to the imperfection of language, andthe different senses, meanings, and shades of meaning, whichdifferent individuals attach to the same words, in the samecircnm stances, f

Where the written law cannot be construed consistentlywith the natural, there is no reason why it should ever beenacted at all. It may, indeed, be sufficiently plain and cer-tain to be easily understood; but its certainty and plainnessare but a poor compensation for its injustice. Doubtless a lawforbidding men to drink water, on pain of death, might bemade so intelligible as to cut off all discussion as to itsmeaning; but would the intelligibleness of such a law be anyequivalent for the right to drink water? The principle isthe same in regard to all unjust laws. Few persons could

« Jones on Bailments, 133.t Kent, describing the difficulty of construing the written law, says:" Such is the imperfection of language, and the want of technical skill in the makers

of the law, that statutes often give occasion to the most perplexing and distressingdoubts and discussions, arising from the ambiguity that attends them. It requiresgreat experience, as well as the command of a perspicuous diction, to frame a law insuch clear and precise terms, as to secure it from ambiguous expressions, and from alldoubts and criticisms upon its meaning." — Kent, 460,

The following extract from a speech of Lord Brougham, in the House of Lords, con-fesses the same difficulty :

"There was another subject, well worthy of the consideration of government duringthe recess,—the expediency, or rathtr the absolute necessity, of some arrangement for thepreparation of bills, not merely private, but public bills, in order that legislation might beconsistent and systematic, and that the courts might not have so large a portion of their timeoccupied in endeavoring to construe acts of Parliament, in many cases unconstruable, and mmost cases difficult to be construed." — Law Reporter, 1848, p. 525.

12*

138 TRIAL BY JURY.

reasonably feel compensated for the arbitary destruction oftheir rights, by having the order for their destruction madeknown beforehand, in terms so distinct and unequivocal as toadmit of neither mistake nor evasion. Yet this is all thecompensation that such laws offer.

Whether, therefore, written laws correspond with, or differfrom, the natural, they are to be condemned. In the first case,they are useless repetitions, introducing labor and obscurity.In the latter case, they are positive violations of men's rights.

There would be substantially the same reason in enactingmathematics by statute, that there is in enacting natural law.Whenever the natural law is sufficiently certain to all men'sminds to justify its being enacted, it is sufficiently certainto need no enactment. On the other hand, until it be thuscertain, there is danger of doing injustice by enacting it; itshould, therefore, be left open to be discussed by anybody whomay be disposed to question it, and to be judged of by theproper tribunal, the judiciary.*

It is not necessary that legislators should enact naturallaw in order that it may be known to the people, because thatwould be presuming that the legislators already understand'itbetter than the people, —a fact of which I am not aware thatthey have ever heretofore given any very satisfactory evidence.The same sources of knowledge on the subject are open to thepeople that are open to the legislators, and the people mustbe presumed to know it as well as they.

The objections made to natural law, on the ground of ob-scurity, are wholly unfounded. It is true, it must be learned,like any other science; but it is equally true that it is veryeasily learned. Although as illimitable in its applications as theinfinite relations of men to each other, it is, nevertheless, madeup of simple elementary principles, of the truth and justice ofwhich every ordinary mind has an almost intuitive perception.It is the science of justice, — and almost all men have the sameperceptions of what constitutes justice, or of what justice re-quires, when they understand alike the facts from which theirinferences are to be drawn. Men living in contact with eachother, and having intercourse together, cannot avoid learning

• Thia condemnation of written laws must, of course, be understood as applying onlyto cases where principles and rights are involved, and not as condemning any govern-mental arrangements, or instrumentalities, that are consistent with natural right, andwhich must be agreed upon for the purpose of carrying natural law into effect. Thesethings may be varied, as expediency may dictate, so only that they be allowed to in-fringe no principle of justice. And they must, of course, be written, because they donet exist as fixed principles, or laws in nature.


natural law, to a very great extent, even if they would. Thedealings of men with men, their separate possessions, and theirindividual wants, are continually forcing upon their minds thequestions, — Is this act just? or is it unjust? Is this thingmine? or is it his? And these are questions of natural law;questions, which, in regard to the great mass of cases, are an-swered alike by the human mind everywhere.

Children learn many principles of natural law at a veryearly age. For example: they learn that when one child haspicked up an apple or a flower, it is his, and that his associatesmust not take it from him against his will. They also learnthat if he voluntarily exchange his apple or flower with aplaymate, for some other article of desire, he has thereby sur-rendered his right to it, and must not reclaim it. These arefundamental principles of natural law, which govern most ofthe greatest interests of individuals and society ; yet childrenlearn them earlier than they learn that three and three are six,or five and five, ten. Talk of enacting natural law by statute,that it may be known! It would hardly be extravagant tosay, that, in nine cases in ten, men learn it before they havelearned the language by which we describe it. Nevertheless,numerous treatises are written on it, as on other sciences.The decisions of courts, containing their opinions upon thealmost endless variety of cases that have come before them,are reported; and these reports are condensed, codified, anddigested, so as to give, in a small compass, the facts, and theopinions of the courts as to the law resulting from them. Andthese treatises, codes, and digests are open to be read of all men.And a man has the same excuse for being ignorant of arithmetic,or any other science, that he has for being ignorant of naturallaw. He can learn it as well, if he will, without its beingenacted, as he could if it were.

If our governments would but themselves adhere to naturallaw, tjiere would be little occasion to complain of the igno-rance of the people in regard to it. The popular ignorance oflaw is attributable mainly to the innovations that have beenmade upon natural law by legislation; whereby our systemhas become an incongruous mixture of natural and statute law,with no uniform principle pervading it. To learn such a sys-tem, — if system it can be called, and if learned it can be, — isa matter of very similar difficulty to what it would be to learna system of mathematics, which should consist of the mathe-matics of nature, interspersed with such other mathematics asmight be created by legislation, in violation of all the naturalprinciples of numbers and quantities.

But whether the difficulties of learning natural law be

140 TRIAL BY JURY.

greater or less than here represented, they exist in the natureof things, and cannot be removed. Legislation, instead ofremoving, only increases them. This it does by innovatingupon natural truths and principles, and introducing jargon andcontradiction, in the place of order, analogy, consistency, anduniformity.

Further than this; legislation does not even profess toremove the obscurity of natural law. That is no part of itsobject. It only professes to substitute something arbitrary inthe place of natural law. Legislators generally have the senseto see that legislation will not make natural law any clearerthan it is. Neither is it the object of legislation to establish theauthority of natural law. Legislators have the sense to see thatthey can add nothing to the authority of natural law, and thatit will stand on its own authority, unless they overturn it.

The whole object of legislation, excepting that legislationwhich merely makes regulations, and provides instrumentali-ties for carrying other laws into effect, is to overturn naturallaw, and substitute for it the arbitrary will of power. In otherwords, the whole object of it is to destroy men's rights. Atleast, such is its only effect; and its designs must be inferredfrom its effect. Taking all the statutes in the country, thereprobably is not one in a hundred, —except the auxiliary onesjust mentioned, — that does not violate natural law; that doesnot invade some right or other.

Yet the advocates of arbitrary legislation are continuallypractising the fraud of pretending that unless the legislaturemake the laws, the laws will not be known. The whole objectof the fraud is to secure to the government the authority ofmaking laws that never ought to be known."

In addition to the authority already cited, of Sir WilliamJones, as to the certainty of natural law, and the uniformityof men's opinions in regard to it, I may add the following:

"There is that great simplicity and plainness in the Com-mon Law, that Lord Coke has gone so far as to assert, (andLord Bacon nearly seconds him in observing,) that {he neverknew two questions arise merely upon common law; but thatthey were mostly owing to statutes ill-penned and overladenwith provisos.' "—3 Eunomus) 157-8.

If it still be said that juries would disagree, as to what wasnatural justice, and that one jury would decide one way, andanother jury another; the answer is, that such a thing is hardlycredible, as that twelve men, taken at random from the people

OBJECTIONS ANSWERED. 1 4 1

at large, should unanimously decide a question of naturaljustice one way, and that twelve other men, selected in thesame manner, should unanimously decide the same questionthe other way, unless they were misled by the justices. If,however, such things should sometimes happen, from anycause whatever, the remedy is by appeal, and new trial.

CHAPTER VI.

JURIES OF THE PRESENT DAY ILLEGAL.

IT may probably be safely asserted that there are, at thisday, no legal juries, either in England or America. And ifthere are no legal juries, there is, of course, no legal trial, nor"judgment," by jury.

In saying that there are probably no legal juries, I meanthat there are probably no juries appointed in conformity withthe principles of the common law.

The term jury is a technical one, derived from the commonlaw; and when the American constitutions provide for the trialby jury, they provide for the common law trial by jury; andnot merely for any trial by jury that the government itselfmay chance to invent, and call by that name. It is the thing,and not merely the name, that is guarantied. Any legislation,therefore, that infringes any essential principle of the commonlaw, in the selection of jurors, is unconstitutional; and thejuries selected in accordance with such legislation are, ofcourse, illegal, and their judgments void.

It will also be shown, in a subsequent chapter,* that sinceMagna Carta, the legislative power in England (whether kingor parliament) has never had any constitutional authority toinfringe, by legislation, any essential principle of the commonlaw in the selection of jurors. All such legislation is as muchunconstitutional and void, as though it abolished the trial byjury altogether. In reality it does abolish it.

What, then, are the essential principles of the common law,controlling the selection of jurors 1

They are two.

• On the English Constitution.

JURIES OF THE PRESENT DAY ILLEGAL. 143

1. That all the freemen, or adult male members of thestate, shall be eligible as jurors.*

Any legislation which requires the selection of jurors to bemade from a less number of freemen than the whole, makesthe jury selected an illegal one.

If a part only of the freemen, or members of the state, areeligible as jurors, the jury no longer represent " the country,"but only a part of " the country."

If the selection of jurors can be restricted to any less num-ber of freemen than the whole, it can be restricted to a verysmall proportion of the whole; and thus the government betaken out of the hands of " the country," or the whole people,and be thrown into the hands of a few.

That, at common law, the whole body of freemen wereeligible as jurors is sufficiently proved, not only by the reasonof the thing, but by the following evidence :

1. Everybody must be presumed eligible, until the contrarybe shown. We have no evidence, that I am aware of, of aprior date to Magna Carta, to disprove that all freemen wereeligible as jurors, unless it be the law of Ethelred, whichrequires that they be elderly \ men. Since no specific age isgiven, it is probable, I think, that this statute meant nothingmore than that they be more than twenty-one years old. If itmeant anything more, it was probably contrary to the commonlaw, and therefore void.

2. Since Magna Carta, we have evidence showing quiteconclusively that all freemen, above the age of twenty-oneyears, were eligible as jurors.

The Mirror of Justices, (written within a century afterMagna Carta,) in the section " Of Judges'7 —that is, jurors— says:

" All those who are not forbidden by law may be judges

• Although all the freemen are legally eligible as jurors, any one may neverthelessbe challenged and set aside, at the trial, for any special personal disqualification ; suchas mental or physical inability to perform the duties; having been convicted, or beingunder charge, of crime; interest, bias, <fcc. But it is clear that the common lawallows none of these points to be determined by the court, but only by " triers.**

•f What was the precise meaning of the Saxon word, which I have here called elderly,I do not know. In the Latin translations it is rendered by seniores, which may perhapsmean simply those who have attained their majority.

144 TRIAL BY JURY.

^jurors). To women it is forbidden by law that they bejudges; and thence it is, that feme coverts are exempted to dosuit in inferior courts. On the other part, a villein cannot be ajudge, by reason of the two estates, which are repugnants;persons attainted of false judgments cannot be judges, nor in-fants, nor any under the age of twenty-one years, nor infectedpersons, nor idiots, nor madmen, nor deaf, nor dumb, nor par-ties in the pleas, nor men excommunicated by the bishop, norcriminal persons. * * And those who are not of the Chris-tian faith cannot be judges, nor those who are out of the king'sallegiance." —Mirror of Justices, 59-60.

In the section " Of Inferior Courts" it is said:

" From the first assemblies came consistories, which we nowcall courts, and that in divers places, and in divers manners;whereof the sheriffs held one monthly, or every five weeks,according to the greatness or largeness of the shires. Andthese courts are called county courts, where the judgment is bythe suitors, if there be no writ, and is by warrant of jurisdic-tion ordinary. The other inferior courts are the courts ofevery lord of the fee, to the likeness of the hundred courts.* * There are other inferior courts which the bailiffs holdin every hundred, from three weeks to three weeks, by thesuitors of the freeholders of the hundred. All the tenants with-in the fees are bounden to do their suit there, and that not forthe service of their persons, but for the service of their fees.But women, infants within the age of twenty-one years, deaf,dumb, idiots, those who are indicted or appealed of mortalfelony, before they be acquitted, diseased persons, and excom-municated persons are exempted from doing suit."—Mirrorof Justices, 50-51.

In the section " Of the Sheriff's Turns," it is said :" The sheriffs by ancient ordinances hold several meetings

twice in the year in every hundred; where all the freeholderswithin the hundred are bound to appear for the service of theirfees." — Mirror of Justices, 50.

The following statute was passed by Edward I., seventyyears after Magna Carta :

" Forasmuch also as sheriffs, hundreders, and bailiffs ofliberties, have used to grieve those which be placed underthem, putting in assizes and juries men diseased and decrepit,and having continual or sudden disease; and men also thatdwelled not in the country at the time of the summons; andsummon also an unreasonable number of jurors, for to extort

JURIES OF THE PRESENT DAY ILLEGAL. 1 4 5

money from some of them, for letting them go in peace, and sothe assizes and juries pass many times by poor men, and therich abide at home by reason of their bribes; it is ordainedthat from henceforth in one assize no more shall be summonedthan four and twenty; and old men above three score and tenyears, being continually sick, or being diseased at the time ofthe summons, or not dwelling in that country, shall not beput in juries of petit assizes."—St. 13 Edward /., ch. 38.(1285.)

Although this command to the sheriffs and other officers, notto summon, as jurors, those who, from age and disease, werephysically incapable of performing the duties, may not, of itself,afford any absolute or legal implication, by which we candetermine precisely who were, and who were not, eligible asjurors at common law, yet the exceptions here made neverthe-less carry a seeming confession with them that, at commonlaw, all male adults were eligible as jurors.

But the main principle of the feudal system itself showsthat all the full and free adult male members of the state —that is, all who were free born, and had not lost their civilrights by crime, or otherwise — must, at common law, havebeen eligible as jurors. What was that principle ? It was,that the state rested for support upon the land, and not upontaxation levied upon the people personally. The lands of thecountry were considered the property of the state, and weremade to support the state in this way. A portion of them wasset apart to the king, the rents of which went to pay his personaland official expenditures, not including the maintenance ofarmies, or the administration of justice. War and the admin-istration of justice were provided for in the following manner.The freemen, or the free-born adult male members of thestate — who had not forfeited their political rights — were en-titled to land of right, (until all the land was taken up,) oncondition of their rendering certain military and civil servicesto the state. The military services consisted in serving per-sonally as soldiers, or contributing an equivalent in horses, pro-visions, or other military supplies. The civil services consisted,among other things, in serving as jurors (and, it would ap-pear, as witnesses) in the courts of justice. For these services

13

116 TRIAL BY JURY.

they received no compensation other than the use of theirlands. In this way the state was sustained; and the kinghad no power to levy additional burdens or taxes upon thepeople. The persons holding lands on these terms were calledfreeholders—in later times freemen — meaning free and fullmembers of the state.

Now, as the principle of the system was that the freeholdersheld their lands of the state, on the condition of renderingthese military and civil services as rents for their lands, theprinciple implies that all the freeholders were liable to theserents, and were therefore eligible as jurors. Indeed, I do notknow that it has ever been doubted that, at common law, allthe freeholders were eligible as jurors. If all had not beeneligibley we unquestionably should have had abundant evi-dence of the exceptions. And if anybody, at this day, allegeany exceptions, the burden will be on him to prove them. Thepresumption clearly is that all were eligible.

The first invasion, which I find made, by the English stat-utes, upon this common law principle, was made in I285T

seventy years after Magna Carta. It was then enacted asfollows:

" Nor shall any be put in assizes or juries, though theyought to be taken in their own shire, that hold a tenement ofless than the value of troenty shillings yearly. And if suchassizes and juries be taken out of the shire, no one shall beplaced in them who holds a tenement of less value than fortyshillings yearly at the least, except such as be witnesses in deedsor other writings, whose presence is necessary, so that they beable to travel." — St. 13 Edward I., ch. 38. (1285.)

The next invasion of the common lawx in this particular,was made in 1414, about two hundred years after MagnaCarta, when it was enacted :

" That no person shall be admitted to pass in any inquestupon trial of the death of a man, nor in any inquest betwixtparty and party in plea real, nor in plea personal, whereof thedebt or the damage declared amount to forty marks, if thesame person have not lands or tenements of the yearly valueofforty shillings above all charges of the same."— 2 Henry V.T8t.2,ch. 3. (1414.)


Other statutes on this subject o£ the property qualificationsof jurors, are given in the note.*

* In 148$ it was enacted, by a statute entitled " Of what credit and estate thoseJurors must be which shall be impanelled in the Sheriffs Turn."

" That no bailiff nor other officer from henceforth return or impanel any such personin any shire of England, to be taken or put in or upon any inquiry in any of the saidTurns, but such as be of good name and fame., ai>d having lands and tenements offreehold within the same shires, to the yearly value of trventy shilling at the least, or•else lands and tenements hokk-n by custom of manor, commonly called copy-hid, witl>-jn the said shires, to the ycuriy value of twenty-six shillings eight pence over ailcharges at the leaat." — 1 Richard III., eh. 4. (14S3.)

1 n 1 t8G it was enacted, " That the justices of the peare of every shire of thisrealm for the time being m*y take, by their discretion, an inquest, whereof every man#ball have lands and tenements to the yearly value ot forty shillings at the least, to in-quire of the concealments of others," ttec, «fcc — 3 Henry VIl~, ch. 1. (I486.)

A statute passed in 1494, in regard to jurors in the city of London, enacts:

'•* That no person nor persons hereafter be impanelled, summoned, or sworn in anyjury or inquest in courts within the same city, (of London,) except he be of lands, ten-ements, or goods and chattels, to the ralue of forty marks; * and that no person or per-sons hereafter »be impanelled, summoned, nor sworn an any jury or inquest in any courtwithin the said city, for lands or tenements, or action personal, wherein the debt ordamage amounteth to the sum of forty marks, or above, except he be in lands, tene-ments, goods, ox chattels, to the value of one hundred marks*" — 11 Henry VII-, ch. 21.<US)4.)

The statute 4 Henry VIII., ch. 3, sec. 4, (1512) requires jurors in London to have"goods to the value of one hundred marks."

In 1494 it was enacted t h a t " It. shall be lawful to every sheriff of the counties ofSouthampton, &Vry, and .Snsser, to impanei and summons twenty-four lawful men ofauch, inhabiting within the precinct of his or their turns, as owe suit to the same turn,whereof every one hath lands or freehold to the yearly value of ten shillings, or copy-hold lands to the yearly value of thirteen shillings four pence, above all charges withinany of the said counties, or men of less livelihood, if there be not so many there, not-withstanding the statute of 1 Richard III., ch. 4. To endure to the next parliament."— 11 Henry VIL, e\u 26. (14i>4.)

This statute was continued in force by 19 Henry VII^ ch. 16. <1503.)

In 1531 it was enacted, "That every person or persons, being the king's naturalsubject -born, which either by the name of citizen, or of a freeman, or any other name,•doth enjoy and use the liberties and privileges of any city, borough, or town corpo-rate, where he dwelleth and maketh his abode, being .worth in movable goods and sub-stance to the clear value of forty pounds, be henceforth Admitted in trials of murdersand felonies in every sessions and gaol delivery, to be kept and holden in and for theliberty of such cities, boroughs, and towns corporate, albeit they have no freehold; anyact, statute, use, custom, or ordinance to the contrary hereof notwithstanding." — 22Henry VIIL, ch. 13.. (1531.)

In 1585 it was enacted, " That in all <?ases where any jurors to be returned for trialof any issue or issues joined in any of the Queen's majesty's court3 of King's Bench,Common Pleas, and the Exchequer, or before justices of assize, by the laws of thisrealm now in force, ought to have estate of freehold in lands, tenements, or heredita-ments, of the clear yearly value ot forty ahillin%.s, that in every such ease the jurorsthat shall be returned from and after the end of this present session of parliament, shall«very of them have estate of freehold an lands, tenements, or hereditaments, to theclear yearly value of four pounds at the least."— 27 Elizabeth, ch. 6. (1585.)

In 1664-5 it was enactod, " That all jurors pother than strangers upon trials per me-di^afjem liuguai) who are to be returned for the trials of issues joined in any of (his)

* A. mark was thirteen shillings and four pence.

148 TRIAL BY JURY.

From these statutes it will be seen that, since 1285, seventyyears after Magna Carta, the common law right of all freeBritish subjects to eligibility as jurors has been abolished, andthe qualifications of jurors have been made a subject of arbi-trary legislation. In other words, the government has usurpedthe authority of selecting the jurors that were to sit in judgmentupon its own acts. This is destroying the vital principle ofthe trial by jury itself, which is that the legislation of the gov-ernment shall be subjected to the judgment of a tribunal, takenindiscriminately from the whole people, without any choice bythe government, and over which the government can exerciseno control. If the government can select the jurors, it will, ofcourse, select those whom it supposes will be favorable to itsenactments. And an exclusion of any of the freemen fromeligibility is a »electimt of those not excluded.

It will be seen, from the statutes cited, that the most abso-lute authority over the jury box — that is, over the right ofthe people to sit in juries — has been usurped by the govern^

majesty's courts of king's tench, common p/eas, or the exchequer, or before justices ofassize, or nisi prius, oyer and terminer, gaol delivery, or general or quarter sessionsof the peace, from and after the twentieth day of April, which shall be in the year ofour Lord one thousand six hundred and sixty-five, in any county of this realm of England^shall every of them thon have, in th€»ir own. name* or in trust fw thom^ within, the sarao*county,, twt-nty, pounds by the year, at lea.st,. above reprises* in 1)heir own or. theh; wives*right, of freehold lands,, or of ancient demesne,, or of rents in fee, fee-^tailj, or for life,.And that in every county within the dominion of Wales every such juror shall thenhave, within the same,, eight pounds by the yearx at the least, above reprises, in manneraforesaid,. All which persons having such estate as aforesaid are hereby enabled am|raad-e liable to be returr\ed and serve as jurors for the tria.1 of issues before the justices;aforesaid, any law or statute to the contrary in any wise notwithstanding^" — 16 and\1 Charles 11*, ch. 3 . (1604-O,)

By a statute passed in 1692Xjurors in England, are to have landed estates of thevalue of ten pounds a year; and jurors in Wales to have similar estates of the rea^m Q£six pounds a year.. — 4 and 5 William and Mary, ch, 24X sec,, 14. (1692.)

By the same statute, (sec^ 18,) persons may be returned to serve upon the teles in,any county of England, who shall havex within the same. oounty»Jiitf pounds by, the year^above reprises* in the manner aforesaid^

By St. 3 George II., ch. 25, sec, 19, 20, no one is to be a juror in London, who sha.Hnot be " an householder within the sa,id city, and ha.ve lands» tenements, or persona^estate, to the value of one hundred powtds.'*

By another statute, applicable only to the county of Middlesex^ \% is enacted,

" That all leaseholders, upon leases where the improved rents or va.lue sha. l amountto fifty pounds or upwards per annum, over and above all ground rents or other reserva*tions payable by virtue of the said leases, shall be liable and obliged to serve uponjuries when they shall be legally summoned for fchat purpose," — 4 George / / , ,ch. 7, aeo, 3. (1731.)

TORIES OF THE PRESENT DAT ILLEGAL. 1 4 9

merit; that the qualifications of jurors have been repeatedlychanged, and made to vary from a ^freehold of ten shillingsyearly, to one of " twenty pounds by the year at least abovereprises." They have also been made different, in the countiesof Southampton, Surrey, and Sussex, from what they were inthe other counties; different in Wales from what they werein England; and different in the city of London, and in thecounty of Middlesex, from what they were in any other partof the kingdom.

But this is not ali. The government has not only assumedarbitrarily to classify the people, on the basis of property, butit has even assumed to give to some of its judges entire andabsolute personal discretion in the selection of the jurors to beimpanelled in criminal cases, as the following statutes show.

" Be it also ordained and enacted by the same authority, thatall panels hereafter to be returned, which be not at the suit ofany party, that shall be made and put in afore any justice ofgaol delivery or justices of peace in their open sessions to in-quire for the king^ shall hereafter be refwrined by additions andtaking out of names of persons by discretion of the same jus-tices before whom, such panel shall be returned ; and the sainejustices shall Itereafter command the sheriff, or his ministersin his absence, to put other persons in the same panel by theirdiscretions ; and that panel so hereafter to be made, to be goodand lawful. This act to endure only to the next Parliament"— 11 Henry F//., ch. 24, sec. 6. (1495,)

This act was continued in force by I Henry VIIL, ch. 11,(1509,) to the end of the then next Parliament.

It was reenacted, aud made perpetual, by 3 Henry VIIL,ch. 12. (1511,)

These acts gam unlimited authority to the king's justices topack juries at their discretion ; and abolished the last vesti&eof the common law right of the people to sit as juror•«, and judgeof their own lilterties, in the courts to which the acts applied.

Yet, as matters o( law, these statutes were no more clearviolations of the common law, the fundamental and paramount" law of the land," than were those statutes which affixed theproperty qualifications before named; because, if the king, orthe government, can select the jurors on the ground of prop-erty, it can select them on any other ground whatever.

13*

150 TRIAL BY JURY.

Any infringement or restriction of the common law right ofthe whole body of the freemen of the kingdom to eligibility asjurors, was legally an abolition of the trial by jury itself. Thejuries no longer represented " the country," but only a part ofthe country; that part, too, on whose favor the governmentchose to rely for the maintenance of its power, and which ittherefore saw fit to select as being the most reliable instru-ments for its purposes of oppression towards the rest. Andthe selection was made on the same principle, on which tyran-nical governments generally select their supporters, viz., thatof conciliating those who would be most dangerous as enemies,and most powerful as friends — that is, the wealthy.*

These restrictions, or indeed any one of them, of the rightof eligibility as jurors, was, in principle, a complete abolitionof the English constitution; or, at least, of its most vital andvaluable part. It was, in principle, an assertion of a right, onthe part of the government, to select the individuals who wereto determine the authority of its own laws, and the extent ofits own powers. It was, therefore, in effect, the assertion of aright, on the part of the government itself, to determine itsown powers, and the authority of its own legislation, over thepeople; and a denial of all right, on the part of the people, tojudge of or determine their own liberties against the govern-ment. It was, therefore, in reality, a declaration of entireabsolutism on the part of the government. It was an act aspurely despotic, in principle, as would have been the expressabolition of all juries whatsoever. By " the law of the land,"which the kings were sworn to maintain, every free adultmale British subject was eligible to the jury box, with fullpower to exercise his own judgment as to the authority andobligation of every statute of the king, which might come

• Suppose these statutes, instead of disfranchising all whose freeholds were of lessthan the standard value fixed by the statutes, had disfranchised all whose freeholdswere of greater value than the same standard — would anybody ever have doubted thatsuch legislation was inconsistent with the English constitution ; or that it amounted toan entire abolition of the trial by jury 1 Certainly not. Yet it was as clearly incon-sistent with the common law, or the English constitution, to disfranchise those whosefreeholds fell below any arbitrary standard fixed by the government, as it would havebeen to disfranchise all whose freeholds rose above that standard.

JURIES OF THE PRESENT DAY ILLEGAL. 1 5 1

before him. But the principle of these statutes (fixing thequalifications of jurors) is, that nobody is to sit in judgmentupon the acts or legislation of the king, or the government,except those whom the government itself shall select for thatpurpose. A more complete subversion of the essential prin-ciples of the English constitution could not be devised.

The juries of England are illegal for another reason, viz.,that the statutes cited require the jurors (except in Londonand a few other places) to be freeholders. All the other freeBritish subjects are excluded; whereas, at common law, allsuch subjects are eligible to sit in juries, whether they be free-holders or not.

It is true, the ancient common law required the jurors to befreeholders; but the term freeholder no longer expresses thesame idea that it did in the ancient common law; because noland is now holden in England on the same principle, or bythe same tenure, as that on which all the land was held in theearly times of the common law.

As has heretofore been mentioned, in the early times of thecommon law the land was considered the property of the state;and was all holden by the tenants, so called, (that is, holders,}on the condition of their rendering certain military and civilservices to the state, (or to the king as the representative ofthe state,) under the name of rents. Those who held landson these terms were called free tenants, that is, free holders— meaning free persons, or members of the state, holdinglands — to distinguish them from villeins, or serfs, who werenot members of the state, but held their lands by a more serviletenure, and also to distinguish them from persons of foreignbirth, outlaws, and all other persons, who were not membersof the state.

Every freeborn adult male Englishman (who had not losthis civil rights by crime or otherwise) was entitled to land ofright; that is, by virtue of his civil freedom, or membershipof the body politic. Every member of the state was thereforea freeholder; and every freeholder was a member of the state.And the members of the state were therefore called freeholders.But what is material to be observed, is, that a man's right to

152 TRIAL BY JURY.

land was an incident to his civil freedom.; not his civil freedoman incident to his right to land. He was a freeholder becausehe was a freeborn member of the state; and not a freebornmember of the state because he was a freeholder; for this lastwould be an absurdity.

As the tenures of lands changed, the term, freeholder lost itsoriginal significance, and no longer described a man who heldland of the state by virtue of his civil freedom, but only onewho held it in fee-simple — that is, free of any liability tomilitary or civil services. But the government, in fixing thequalifications o( jurors, has adhered to the term freeholderafter that term has ceased to express the thing originallydesignated by it.

The principle, then, of the common law, was, that everyfreeman, or freeborn male Englishman, of adult age, &c., waseligible to sit in juries, by virtue of his civil freedom, or hisbeing a member of the state, or body politic. But the principleof the present English statutes is, that a man shall have a rightto sit in juries because he owns lands in fee-simple. At thecommon law a man was born to the right to sit in juries. Bythe present statutes he buys that right when he buys his land.And thus this, the greatest o[ all the political rights of an Eng-lishman, has become a mere article of merchandise; a thingthat is bought and sold in the market for what it* will bring.

Of course, there can be no legality in such juries as these;but only in juries to which every free or natural born adultmale Englishman is eligible.

The second essential principle of the common law, controllingthe selection of jurors, is, that when the selection of the actualjurors comes to be made, (from the whole body of male adults,)that selection shall be made in some mode that excludes thepossibility of choice on the part of the government.

Of course, this principle forbids the selection to be made byany officer of tJie government.

There seem to have been at least three modes of selectingthe jurors, at the common law. 1. By lot.* 2. Two knights,or other freeholders, were appointed, (probably by the sheriff,)

* Lingard says : " These compurgators or jurors * * were sometimes * * drawnby lot,"- 1 Lmgard's History of England, p. 300.


to select the jurors. 3. By the sheriff, bailiff, or other person,who held the court, or rather acted as its ministerial officer.Probably the latter mode may have been the most common,although there may be some doubt on this point.

At the common law the sheriffs, bailiffs, and other officerswere chosen by the people, instead of being appointed by theking. (4 Blackstone, 413. Introduction to Gilbert's History ofthe Common Pleas, p. 2, note, and p. 4.) This has been shownin a former chapter.* At common law, therefore, jurors selectedby these officers were legally selected, so far as the principlenow under discussion is concerned; that is, they were notselected by any officer who was dependent on the government.

But in the year 1315, one hundred years after Magna Carta,the choice of sheriffs was taken from the people, and it wasenacted:

" That the sheriffs shall henceforth be assigned by the chan-cellor, treasurer, barons of the exchequer, and by the justices.And in the absence of the chancellor, by the treasurer, baronsand justices."—9 Edioard IL, st. 2. (1315.)

These officers, who appointed the sheriffs, were themselvesappointed by the king, and held their offices during his pleas-ure. Their appointment of sheriffs was, therefore, equivalentto an appointment by the king himself. And the sheriffs, thusappointed, held their offices only during the pleasure of theking, and were of course mere tools of the king; and theirselection of jurors was really a selection by the king himself.In this manner the king usurped the selection of the jurors whowere to sit in judgment upon his own laws.

Here, then, was another usurpation, by which the commonlaw trial by jury was destroyed, so far as related to the countycourts, in which the sheriffs presided, and which were themost important courts of the kingdom. From this cause alone,if there were no other, there has not been a legal jury in acounty court in England, for more than five hundred years.

In nearly or quite all the States of the United States thejuries are illegal, for one or the other of the same reasons thatmake the juries in England illegal.

* Chapter 4, p. 120, note.

154 TRIAL BY JURY".

In order that the juries in the United States may be legal —that is, in accordance with the principles of the common law— it is necessary that every adult male member of the stateshould have his name in the jury box, or be eligible as a juror.Yet this is the case in hardly a single state.

In New Jersey, Maryland, North Carolina, Tennessee, andMississippi, the jurors are required to be, freeholders. But thisrequirement is illegal, for the reason that the term freeholder,in this country, has no meaning analogous to the meaning ithad in the ancient common law.

In Arkansas, Missouri, Indiana, and Alabama, jurors arerequired to be " freeholders or householders." Each of theserequirements is illegal.

In Florida, they are required to be " householders."In Connecticut, Maine, Ohio, and Georgia, jurors are re-

quired to have the qualifications of " electors."In Virginia, they are required to have a property qualifica-

tion of one hundred dollars.In Maine, Massachusetts, Vermont, Connecticut, New York,

Ohio, Indiana, Michigan, and Wisconsin, certain civil author-ities of the towns, cities, and counties are authorized to select,once in one, two, or three years, a certain number of the peo-ple— a small number compared with the whole — from whomjurors are to be taken when wanted; thus disfranchising allexcept the few thus selected.

In Maine and Vermont, the inhabitants, by vote in townmeeting, have a veto upon the jurors selected by the authoritiesof the town.

In Massachusetts, the inhabitants, by vote in town meeting,can strike out any names inserted by the authorities, and in-sert others; thus making jurors elective by the people, and, ofcourse, representatives only of a majority of the people.

In Illinois, the jurors are selected, for each term of court, bythe county commissioners.

In North Carolina, "the courts of pleas and quarter sessions* * shall select the names of such persons only as are free-holders, and as are well qualified to act as jurors, &c.; thusgiving the courts power to pack the juries." — {Revised Stat-utes, 147.)


111 Arkansas, too, " I t shall be the duty of the county courtof each county * * to make out and cause to be delivered tothe sheriff a list of not less than sixteen, nor more than twenty-three persons, qualified to serve as grand jurors;" and thesheriff is to summon such persons to serve as grand jurors.

In Tennessee, also, the jurors are to be selected by thecounty courts.

In Georgia, the jurors are to be selected by " the justices ofthe inferior courts of each county, together with the sheriff andclerk, or a majority of them."

In Alabama, "the sheriff, judge of the county court, andclerks of the circuit and county courts," or " a majority of"them, select the jurors.

In Virginia, the jurors are selected by the sheriffs; but thesheriffs are appointed by the governor of the state, and that isenough to make the juries illegal. Probably the same objec-tion lies against the legality of the juries in some other states.

How jurors are appointed, and what are their qualifications,in New Hampshire, Rhode Island, Pennsylvania, Delaware,South Carolina, Kentucky, Iowa, Texas, and California, Iknow not. There is little doubt that there is some valid ob-jection to them, of the kinds already suggested, in all thesestates.

In regard to jurors in the courts of the United States, it isenacted, by act of Congress :

"That jurors to serve in the courts of the United States, ineach state respectively, shall have the like qualifications, andbe entitled to the like exemptions, as jurors of the highest courtof law of such state now have and are entitled to, and shallhereafter, from time to time, have and be entitled to. and shallbe designated by ballot, lot, or otherwise, according to themode of forming such juries now practised and hereafter to bepractised therein, in so far as such mode may be practicableby the courts of the United States, or the officers thereof; andfor this purpose, the said courts shall have power to make allnecessary rules and regulations for conforming the designationand empanelling of jurors, in substance, to the laws and usagesnow in force in such state ; and, further, shall have power, byrule or order, from time to time, to conform the same to anychange in these respects which may be hereafter adopted bythe legislatures of the respective states for the state courts." —St. 1840, ch. 47, Statutes at Large, vol. 5, p. 394.

156 TRIAL BY JURY.

In this corrupt and lawless manner, 'Congress, instead oftaking care to preserve the trial by jury, so far as they might,by providing for the appointment of legal juries — incom-parably the most important of all our judicial tribunals, andthe only ones on which the least reliance can be placed forthe preservation of liberty — have given the selection of themover entirely to the control of an indefinite number of statelegislatures, and thus authorized each state legislature to adaptthe juries of the United States to the maintenance of any andevery system of tyranny that may prevail in such state.

Congress have as much constitutional right, to give over allthe functions of the United States government into the handsof the state legislatures, to be exercised within each state insuch manner as the legislature of such state shall please toexercise them, as they have to thus give up to these legisla-tures the selection of juries for the courts of the United States.

There has, probably, never been a legal jury, nor a legaltrial by jury, in a single court of the United States, since theadoption of the constitution.

These facts show how much reliance can be placed in writ-ten constitutions, to control the action of the government, andpreserve the liberties of the people.

If the real trial by jury had been preserved in the courtsof the United States — that is, if we had had legal juries, andthe jurors had known their rights — it is hardly probable thatone tenth of the past legislation of Congress would ever havebeen enacted, or, at least, that, if enacted, it could have beenenforced.

Probably the best mode of appointing jurors would be this:Let the names of all the adult male members of the state, ineach township, be kept in a jury box, by the officers of thetownship; and when a court is to be held for a county or otherdistrict, let the officers of a sufficient number of townships berequired (without seeing the names) to draw out a name fromtheir boxes respectively, to be returned to the court as a juror.This mode of appointment would guard against collusion andselection; and juries so appointed would be likely to be a fairepitome of " the country."

CHAPTER VII.

ILLEGAL JUDGES.

IT is a principle of Magna Carta, and therefore of the trialby jury, (for all parts of Magna Carta must be construedtogether,) that no judge or other officer appointed by the king,shall preside in jury trials, in criminal cases, or "pleas of thecrown."

This provision is contained in the great charters of bothJohn and Henry, and is second in importance only to the pro-vision guaranteeing the trial by jury, of which it is really apart. Consequently, without the observance of this prohibi-tion, there can be no genuine or legal — that is, common law— trial by jury.

At the common law, all officers who held jury trials, whetherin civil or criminal cases, were chosen by the people.*

* The proofs of this principle of the common law have already been given on page120, note.

There is much confusion and contradiction among authors as to the manner in whichsheriffs and other officers were appointed; some maintaining that they were appointedby the king, others that they were elected by the people. I imagine that both theseopinions are correct, and that several of the king's officers bore the same official namesas those chosen by the people; and that this is the cause of the confusion that hasarisen on the subject.

I t seems to be a perfectly well established fact that, at common law, several magis-trates, bearing the names of aldermen, sheriffs, stewards, coroners and bailiffs, werechosen by the people; and yet it appears, from Magna Carta itself, that some of theking's officers (of whom he must have had many) were also called " sheriffs, consta-bles, coroners, and bailiffs."

But Magna Carta, in various instances, speaks of sheriffs and bailiffs as " our sheriffsand bailiffs;" thus apparently intending to recognize the distinction between officers ofthe king, bearing those names, and other officers, bearing the same official names, butchosen by the people. Thus it says that "no sheriff or bailiff of ours, or any other(officer), shall take horses or carts of any freeman for carriage, unless with the consentof the freeman himself." — John's Charter, ch. 36.

In a kingdom subdivided into so many counties, hundreds, tithings, manors, cities

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158 TRIAL- B¥

BiH previous to Magna Carta, the kings had adopted thepractice of sending officers of their own appointment, calledjustices, into the counties, to hold jnry trials in some cases*and Magna Carta authorizes this practice to be continued so<far as it relates to t/iree kinds of civil actions, to wit: " noveldisseisin, rnort de ancestor, and darrein presentment;"* butspecially forbids its being extended to criminal cases, or pleasof the crown.

This prohibition is in these words:

"NuJlus vicecomesr constabularius, eoronator, vel alii balivinostri, teneant placita coronae nostrae." (No sheriff, consta-ble, coroner, or other our bailiffs, shall hold pleas of ourcrown.)—John's Charter, ch. 53. Henry's ditto, eh. 17.

Some persons seem to have supposed that this was a pro-hibition merely upon officers bearing the specific names of"sheriffs, constables, coroners and bailiffs" to hold criminaltrials. But such is not the meaning. If it were, the name

and boroughs, each having a judicial or police organization of its own, it is evident thatmany of the officers must have been ehosen by the people, eke the government couldnot have maintained its popular character. On the other hand, it is evident that the-king, the executive power of the nation, must have had large numbers of officers of his-own in every part of the kingdom. And it » perfectly natural that these different!sets of officers should, in many instances, bear the same official names;; and,conse-quently that the king, when speaking of his own officers,, as distinguished from thosechosen by the people,.should call them M*ow 8heriffsrbailiffs," &c,,as he does in Magna<Carta.

I apprehend that inattention to these considerations has been the cause of all the-confusion of ideas that has arisen on this subject, — a confusion very evident in the-following paragraph from Dunham,, which may be given as an illustration of that which;is exhibited by others on the same points.

"Subordinate to the ealdormen were the gerefas, the sheriffs, or reeves,, of whom therexoere several in- every shire, or county. There was one in every borough? as a judge. There"was one at every gate, who witnessed purchases outside the walls; and *here was one,,higher than either,—the high sheriff,.— who was probably the reeve of th« shire.This last appears to have been appointed by the king. Their functions were to execute:the decrees of the king, or ealdormen, to arrest prisoners, to require bail for theirappearance at the sessions, to collect fines or penalties levied by the court of the shire,,to preserve the public peace, and to presidt in a subordinate tribunal of their own." —Dunham's Middle Ages, sec. 2, B. 2, ch. 1. 57 Lardner's Cab. Cyc, p. 41.

The confusion of dttties attributed to these officers indicates clearly enough that differ-ent officers, bearing, the same official names, must have had different duties, and havederived their authority from different sources,—to wit, the king, and the people.

* Darrein presentment was an inquest to discover who presented the last person to aehurch; mart de ancestor, whether the last possessor was seized of land in demesne ofbis own fee; and novel disseisin,, whether the claimant had been unjustly disseized ofhis freehold.

ILLEGAL JUDGES- 159

could be changed, and the thing retained; and thus the pro-hibition be evaded. The prohibition applies (as will pres-ently be seen) to all officers of the king whatsoever; and itsets up a distinction between officers of the king, ("owr bail-iffs,") and officers chosen by the people.

The prohibition upon the king's justices sitting in criminaltrials, is included in the words " vel alii balivi nostri" (orother our bailiffs.) Tins word bailiff was anciently a sort ofgeneral xaanae tor judicial officers and persons employed in andabout the administration of justice. In modern limes its use,as applied to the higher grades of judicial officers, has beensuperseded by other words; and it therefore now, more gener-ally, if not universally, signifies an executive or police officer,a servant of courts, rather than one whose functions are purelyjudicial.

The word is a French word, brought into England by theJVorrnans.

Coke says, " Raylife is a French word, and signifies an offi-cer concerned in the administration of justice of a certain prov-ince; and because a sheriff kath an office concerning theadministration of justice within his county, or bailiwick, there-fore he called his county halloa sua, (his bailiwick.)

" I have heard great question made what the true exposition>of this word hallcus is. In the statute of Magua Oarta, cap.J28, the letter of that statute is, nullus balious de catero ponataliquem ad legein mcui'ifeslam nee ad jurameiitum simpliciJoquela sua sine testilms fidelibiis ad hoc indvrtis.-' (No bailifffrom henceforth shall put any one to his open law, nor to anoath (of self-exculpation) upon his own simple accusation, orcomplaint, without faithful witnesses brought in for the same.)"And some have said that balivi/s in this statute signifieth anyjudge ; for the lav/ must be waged and made before the judge.And this statute (say they) extends to the courts of commonpleas, king's bench, &c., for tl*ey must bring with \\\emfidelestestes. (faithful witnesses.) &c, and so hath been the usage /©this day:1' — 1 Cake's Inst., 1GS b.

Coke makes various references, in his margin to Bracton,Fleta. and otlier authorities, which I have not examined, butwhich, i presume, support the opinion expressed ir this quota-tion.

Coke also, in another place, under the head of the chapter

160 TRIAL BY JURY.

just cited from Magna Carta, that " no bailiff shall put anyman to his open law" &c, gives the following commentaryupon it, from the Mirror of Justices, from which it appearsthat in the time of Edward I., (1272 to 1307,) this word balivnswas understood to include all judicial, as well as all other,officers of the king.

The Mirror says: "The point which forbiddeth that nobailiff put a freeman to his oath without suit, is to be under-stood in this manner,— that no justice, no minister of the king,nor other steward, nor bailiff, have power to make a freemanmake oath, (of self-exculpation,) without the king's command,*uor receive any plaint, without witnesses present who testifythe plaint to be true."—Mirror of Justices, ch. 5, sec. 2, p.257.

Coke quotes this commentary, (in the original French,) and(hen endorses it in these words :

" By this it appeareth, that under this word balivus, in thisact, is comprehended every justice, minister of the king, stew-ard, and bailiff." —2 JW., 44.

Coke also, in his commentary upon this very chapter ofMagna Carta, that provides that " no sheriff, constable, coroner,or other our bailiffs, shall hold pleas of our crown," expressesthe opinion that it " 'is a general law" (that is, applicable toalt officers of the king,) " by reason of the words vel alii balivinostri, (or other our bailiffs,) under which words are compre-hended all judges or justices of any courts of justice." Andhe cites a decision in the king's bench, in the 17th year of Ed-ward I., (1289,) as authority; which decision he calls " anotable and leading judgment."—2 List., 30—1.

And yet Coke, in flat contradiction of this decision, whichhe quotes with such emphasis and approbation, and in flatcontradiction also of the definition he repeatedly gives of theword balivns, showing that it embraced all ministers of theking whatsoever, whether high or low, judicial or executive,fabricates an entirely gratuitous interpretation of this chapter

• l ie has no power to do it, cither um'lh, or tvithout, the king's command. The prohibitionis absolute, containing no such qualification as is here interpolated, viz., " without thekin^s command." If it could be done with the king's command, the king would bsinvested with arbitrary power in the matter.

ILLEGAL JUDGES. 161

«©f Magrca Carta, and pretends that after all it only requiredthat felonies should be tried before the king's justices, onaccount of their superior learning: and that it permitted alllesser offences to be tried before inferior officers, (meaning ofcourse the king's inferior officers.) —2 Inst., 30.

And thus this chapter of Magna Carta, which, according tohis own definition of the word balivus, applies to all officers ofthe king; and which, according to the common and true defi-nition of the term "pleas of the crown," applies to all criminal<:ases without distinction, and which, therefore, forbids anyofficer or minister of the king to preside in a jury trial in any-criminal case whatsoever, he coolly and gratuitously interpretsinto a mere senseless provision for simply restricting the dis-cretion of the king in giving names to his own officers whoshould preside at the trials of particular offences; as if theking, who made and unmade all his officers by a word, couldnot defeat the whole object of the prohibition, by appointingsuch individuals as he pleased, to try such causes as he pleased,and calling them by such names as he pleased, if he ivere butpermitted to appoint and name such officers at all; and as if itwere of the least importance what name an officer bore, whomthe king might appoint to a particular duty,*

* The absurdity of this doctrine of Coke is made more apparent by the fact that, at•that time, the "justices " and other persons appointed by the king to hold courts werenot only dependent upon the king for their offices, and removable at his pleasure, butthat the usual custom was, 7iot to appoint them with any view to permanency, but only togive them special commissions for trying a single catcse*, or far holding a single term of acourt, or for making a single circuit; which, being done, their commissions expired. Theking, therefore, could, and undoubtedly did, ajrpoint any individual he pleaded, to try airy-cause he pleased, with a special view to the verdicts he desired to obtain in the particular cases.

This custom of commissioning particular persons to hold jury trials, in criminal cases,(and probably also in civil ones,) was of course a usurpation upon the common law,but had been practised more or less from the time of William the Conqueror. Paigravesays:

••" The frequent absence of William from his insular dominions occasioned anothermode of administration, which ultimately produced still greater changes in the law. It wasthe practice of appointing justiciars to represent the king's person, to hold his court, to-decide his pleas, to dispense justice on his behalf, to command the military levies, andto act as conservators of the peace in the king's name.* . . The justices who were

* In this extract, Paigrave seems to assume that the king himself had a right to sit as judge, injury trials, in the county courts, in both civil and criminal cases. I apprehend he had no suchpower at the common law, but only to sit in the trial of appeals, and in the trial of peers, and ofCivil suits in which peers were parties, and possibly in the courts of ancient demesne.

14*

162 TRIAL BY JURY.

Coke evidently gives this interpretation solely because, as hewas giving a general commentary on Magna Carta, he wasbound to give some interpretation or other to every chapter ofit : and for this chapter he could invent, or fabricate, (for it is

resigned in the name of the sovereign, and whose powers were revocable at his pleas-ure, derived their authority merely from their grant. . . Some of those judges wereusually deputed for the purpose of relieving the king from the burden of his judicialfunctions. . . The number as well as the variety of names of the justices appear-ing in the early chirographs of •Concords,'1 leave reason for doubting whether, anteriortu ilic reign of Henry I I I . , (1216 to 1272,) a court, whose members were, changing at. I n int every session, can be said to have been permanently constituted. It seems more prob-i:.• u that the. individuals who composed the tribunal were selected as suited the pleasure of the.v/jirrrign, mid the convenience of the clerks and barons; and the history of our legaladministration will be much simplified, if we consider all those courts which were after-wards denominated the Exchequer, the King's Bench, the Common Pleas, and theChancery, as being originally committees, selected by the king when occasion required, outtl a large body, tor the despatch of peculiar branches of business, and which committees,by degrees, assumed an independent and permanent existence. . . Justices itinerant,who, despatched throughout the land, decided the «Pleas of the Crown,' may beobscurely traced in the reign of the Conqueror; not, perhaps, appointed with much regu-larity, but despatched upon peculiar occasions and emergencies." — 1 Palgrave's Rise andProgress, <fcc, p . 289 to 21)3.

The following statute, passed in 135-1, (139 years after Magna Carta,) shows thateven after this usurpation of appointing "justices " of his own, to try criminal cases,.had probably become somewhat established in practice, in defiance of Magna Carta,the king was in the habit of granting special commissions to still other persons, (espec-ially to sheriffs, — his sheriffs, no doubt,) to try particular cases :

" Because that the people of the realm have suffered many evils and mischiefs, for(that sheriffs of divers counties, by virtue of commissions and general writs granted tothem at their own suit, for their singular profit to gain of the people, have made and•taken divers inquests to cause to indict the people at their will, and have taken fine and.ransom of them to their own use, and have delivered them; whereas such personsindicted were not brought before the king's justices to have their deliverance, it isaccorded and established, for to eschew all such evils and mischiefs, that such commis-sions and writs before tins time made shall be utterly repealed, and that from hence-forth no such commissions shall be granted." — ^ . 28 Edward III., ch. 9, (1354.)

How silly to suppose that the illegality of these commissions to try criminal cases,•could have been avoided by simply granting them to persons under the title of "jus-tices," instead of granting them to ** sheriffs." The statute was evidently a cheat, or atleast designed as such, inasmuch as it virtually asserts the right of the king to appointhis tools, under the name of "justices," to try criminal cases, while it disavows hisright to appoint them under the name of " sheriffs."

Millar says : " When the king's bench came to have its usual residence at Westmin-ster, the sovereign was induced to grant special commissions, for trying particular crimes,in such parts of the country as were found most convenient; and this practice wasgradually modelled into a regular appointment of certain commissioners, empowered, atstated seasons, to perform circuits over the kingdom, and to hold courts in particulartowns, for the trial of all sorts of crimes. These judges of the circuit, however, neverobtained an ordinary jurisdiction, but continued, on every occasion, to derive their authorityfrom two special coinmissions : that of oyer and terminer, by which they were appointed tohear and determine all treasons, felonies and misdemeanors, within certain districts;and that of gaol delivery, by which they were directed to try every prisoner confined inthe gaols of the several towns falling under their inspection." — Millar's Hist. View ofEng. Gov., vol. 2, ch. 7, p. 282.

The following extract from Gilbert shows to what lengths of usurpation the kings

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a sheer fabrication,) no interpretation better suited to his pur-pose than this. It seems never to have entered his mind, (orif it did, he intended that it should never enter the mind ofanybody else,) that the object of the chapter could be to deprivethe king of the power of putting his creatures into criminalcourts, to pack, cheat, and browbeat juries, and thus maintainhis authority by procuring the conviction of those who shouldtransgress his laws, or incur his displeasure.

This example of Coke tends to show how utterly blind, orhow utterly corrupt, English judges, (dependent upon thecrown and the legislature), have been in regard to everythingin Magna Carta, that went to secure the liberties of the people,or limit the power of the government.

Coke's interpretation of this chapter of Magna Carta is of apiece with his absurd and gratuitous interpretation of thewords " nee super eum ibim,us, nee super eum mittemus"which was pointed out in a former article, and by which heattempted to give a judicial power to the king and his judges,where Magna Carta had given it only to a jury. It is also ofa piece with his pretence that there was a difference between

would sometimes go, in their attempts to get the judicial power out of the hands of thepeople, and entrust it to instruments of their own choosing :

"From the time of the Saxons," (that is, from the commencement of the reign ofWilliam the Conqueror,) " till the reign of Edward the first, (1272 to 1307,) the sev-eral county courts and sheriffs courts did decline in their interest and authority. Themethods by which they were broken were two-fold. First, by granting commissions tothe sheriffs by writ of JUSTICIES, whereby the sheriff had a particular jurisdiction granted himto be judge of a particular cause, independent of the suitors of the county court,1' (that is,without a jury;) " and these commissions were after the Norman form, by which (accordingto which) all power of judicature was immediately derived from the king." — Gilbert on theCourt of Chancery, p. 1.

The several authorities now given show that it waa the custom of the Norman kings,not only to appoint persons to sit as judges in jury trials, in criminal cases, but thatthey also commissioned individuals to sit in singular and particular cases, as occasionrequired ; and that they therefore readily could, and naturally would, and thereforeundoubtedly did, commission individuals with a special view to their adaptation orcapacity to procure such judgments as the kings desired.

The extract from Gilbert suggests also the usurpation of the Norman kings, in theirassumption that they, (and not the people, as by the common law,) were the fountains ofjustice. I t was only by virtue of this illegal assumption that they could claim toappoint their tools to hold courts.

All these things show how perfectly lawless and arbitrary the kings wer* bothbefore and after Magna Carta, and how necessary to liberty was the principle of MagnaCarta and the common law, that no person appointed by the king should hold jurytrials in criminal

1 6 4 TRIAL BY JURY,

fine and amercement, and that fines might be imposed by theking, and that juries were required only for fixing amerce-ments.

These are some of the innumerable frauds by which theEnglish people have been cheated out of the trial by jury.

Ex uno disce omnes. From one judge learn the charactersof all.*

I give in the note additional and abundant authorities for

* The opinions and decisions of judges and courts are undeserving of the least reliance,(beyond the intrinsic merit of the arguments offered to sustain them,) and are unwor-thy even to be quoted as evidence of the law, when those opinions or decisions are favor-(Me to the power of the government, or unfavorable to the liberties of the people. The onlyreasons that their opinions, when in favor of liberty, are entitled to any confidence, are,first, that all presumptions of law are in favor of liberty; and, second, that the admis-sions of all men, the innocent and the criminal alike, when made against their own inter-eats, are entitled to be received as true, because it is contrary to human nature for &man to confess anything but truth against himself.

More solemn farces, or more gross impostures, were never practised upon mankind,than are all, or very nearly all, those oracular responses by which courts assume to deter-mine that certain statutes, in restraint of individual liberty, are within the constitu-tional power of the government, and are therefore valid and binding upon the people.

The reason why these courts are so intensely servile and corrupt, is, that they areuot only parts of, but the veriest creatures of, the very governments whose oppressionsthey are thus seeking to uphold. They receive their offices and salaries from, and areimpeachable and removable by, the very governments upon whose acts they affect tosit in judgment. Of course, no one with his eyes open ever places himself in a positionso incompatible with the liberty of declaring his honest opinion, unless he do it with theintention of becoming a mere instrument in the hands of the government for theexecution of all its oppressions.

As proof of this, look at the judicial history of England for the lost five hundredyears, and of America from its settlement. In all that time (so far as I know, or pre-sume) no bench of judges, (probably not even any single judge,) dependent upon thelegislature that passed the statute, has ever declared a single penal statute invalid, onaccount of its being in conflict either with the common law, which the judges in Eng-land have been sworn to preserve, or with the written constitutions, (recognizing men'snatural rights,) which the American judges were under oath to maintain. Everyoppression, every atrocity even, that has ever been enacted in either country, by thelegislative power, in the shape of a criminal law, (or, indeed, in almost any other shape,)has been as sure of a sanction from the judiciary that was dependent upon, and impeach-able by, the legislature that enacted the law, as if there were a physical necessity thatthe legislative enactment and the judicial sanction should go together. Practicallyspeaking, the sum of their decisions, all and singular, has been, that there are no limitsto the power of the government, and that the people have no rights except what thegovernment pleases to allow to them.

It is extreme folly for a people to allow such dependent, servile, and perjured crea-tures to sit either in civil or criminal trials; but to allow them to sit in criminal trials,and judge of the people's liberties, is not merely fatuity, — it is suicide.

ILLEGAL JUDGES. 165

the meaning ascribed to the word bailiff. The importance ofthe principle involved will be a sufficient excuse for such anaccumulation of authorities as would otherwise be tedious andperhaps unnecessary.*

The foregoing interpretation of the chapter of Magna Cartanow under discussion, is corroborated by another chapter of

* Coke, speaking of the word bailiffs, as used in the statute of 1 Westminster, oh. 35,(1275,) says :

"Here bailiffs are taken for the judges of the court, as manifestly appeareth hereby."— 2 Inst., 221).

Coke also says, •« I t is a maxim in law, aliquis non debet ease judex in propria causa, (noone ought to be judge in his own cause;) and therefore a fine levied before the bay-lifes of Sal>p was reversed, because one of the baylifes was party to the fine, quia nonpatent essejudex et pars," (because one cannot be judge and party.) — 1 Inst., 141 a.

In the statute of Gloucester, ch. 11 and 12, (1278,) " t he mayor and bailiffs of Lon-don (undoubtedly chosen by the people, or at any rate not appointed by the king) aremanifestly spoken of as judges, or magistrates, holding jury trials, as follows :

Ch. II. " It is provided, also, that if any man lease his tenement in the city of Lon-don, for a term of years, and he to whom the freehold belongeth causeth himself tobe hnpleaded by collusion, and maketh default after default, or cometh into court andgiveth it up, for to make the terinor (lessee) lose his term, (lease,) and the demandanthath his suit, so that the terinor may recover by writ of covenant; the mayor and bailiffsmay inquire by a good inquest, (jury,) in the presence of the termor and the demandant,whether the demandant moved his plea upon good right that he had, or by collusion,or fraud, to make the termor lose his term; and if it be found by the inquest (jury/that the demandant moved his plea upon good right that he had, the judgment shallbe given forthwith; and if it be found by the inquest (jury) that he impleaded him(self) by fraud, to put the termor from his term, then shall the termor enjoy his term,and the execution of judgment for the demandant shall be suspended until the term beexpired."— b Edward I., ch. 11, (1278.)

Coke, in his commentary on this chapter, calls this court of " the mayor and bailiffs "of London," the court of the hustings; the greatest and highest court in London;" and adds," other cities have the like court, and so called, as York, Lincoln, Winchester, Ac.Here the city of London is named; but it appeareth by that which hath been said outof Fleta, that this act extends to such cities and boroughs privileged, — that is, such ashave such privilege to hold plea as London hath." — 2 Inst., 322.

The 12th chapter of the same statute is in the following words, which plainly recog-nize the fact t h a t " the mayor and bailiffs of London" are judicial officers holding courtsin London.

" I t is provided, also, that if a man, impleaded for a tenement in the same city,(London,) doth vouch a foreigner to warranty, that he shall come into the chancery,and have a writ to summon his warrantor at a certain day before the justices of thebench, and another unit to the mayor and bailiffs of London, that they shall surcease (sus-pend proceedings) in the matter that is before them by writ, until the plea of the warranteebe determined before the justices of the bench; and when the pica at the bench shallbe determined, then shall he that is vouched be commanded to go into the city," (thatis, before " t he mayor and bailiffs' " court,) " t o answer unto the chief plea; and awrit shall be awarded at the suit of the demandant by the justices unto the mayor andbailiffs, that they shall proceed in the plea," &o. — G Edward I., ch. 12, (1278.)

Coke, in his commentary on this chapter, also speaks repeatedly of " the mayor andbailiffs " as judges holding courts; and also speaks of this chapter as applicable not onlyto " the citie of London, specially named for the cause aforesaid, but extended by equityto all other privileged places," (that is, privileged to have a court of "mayor and bail-

166 TRIAL BY JURY.

Magna Carta, which specially provides that the king's justicesshall "go through every county" to "take the assizes" (holdjury trials) in three kinds of civil actions, to wit, " novel dis-seisin, mort de ancestor, and darrein presentment;" but makesno mention whatever of their holding jury trials in criminalcases, — an omission wholly unlikely to be made, if it were

$5,") " where foreign voucher is made, as to Chester, Durham, Salop," <to. — 2 Inst.,325-7.

B A I L I E . — I n Scotch law, a municipal magistrate, corresponding with the Englishalderman.* — Burrill's Law Dictionary.

BAILIFFS.—Baillif. Fr. A bailiff: a ministerial officer with duties similar tothose of a sheriff. . . The judge of a court. A municipal magistrate, Ac. — Bur-rill1 s Law Diet.

BAILIFF. . • The word bailiff is of Norman origin, and was applied in England,at an early period, (after the example, it is said, of the French,) to the chief magis-trates of counties, or shires, such as the alderman, the reeve, or sheriff, and also of infe-rior jurisdictions, such as hundreds and wapentakes. — Spelman, we. Balivus; 1 Bl.Com., 344. See Bailli, Ballivus. The Latin ballivus occurs, indeed, in the laws ofEdward the Confessor, but Spelman thinks it was introduced by a later hand. Balliva(bailiwick) was the word formed from ballivus, to denote the extent of territory com-prised within a bailiff's jurisdiction; and bailiwick is still retained in writs and otherproceedings, as the name of a sheriff's county. — 1 Bl. Com., 344. See Balliva. Theoffice of bailiff was at first strictly, though not exclusively, a judicial one. In France, theword had the sense of what Spelman calls justitia tutdaris. Ballivus occurs frequentlyin the Regiam Majestatem, in the sense of & judge. — Spelman. In its sense of a dep-uty, it was formerly applied, in England, to those officers who, by virtue of a deputa-tion, either from the sheriff or the lords of private jurisdictions, exercised within thehundred, or whatever might be the limits of their bailiwick, certain judicial and minis-terial functions. With the disuse of private and local jurisdictions, the meaning of theterm became commonly restricted to such persons as were deputed by the sheriff toassist him in the merely ministerial portion of his duty; such as the summoning ofjuries, and the execution of writs. — Brande. . . The word bailiff is also applied inEngland to the chief magistrates of certain towns and jurisdictions, to the keepers ofcastles, forests and other places, and to the stewards or agents of lords of manors. —Burrill's Law Diet.

" BAILIFF, (from the Lat. ballivus; Fr. baillif, i. e., Prafectus provincice,) signifies anofficer appointed for the administration of justice within a certain district. The office,&s well as the name, appears to have been derived from the French," <tc. — Brcwstcr'sEncyclopedia.

Millar says, " The French monarchs, about this period, were not content with thepower of receiving appeals from the several courts of their barons. An expedient wasdevised of sending royal bailiffs into different parts of the kingdom, with a commissionto take cognizance of all those causes in which the sovereign was interested, ajid inreality for the purpose of abridging and limiting the subordinate jurisdiction of the

* Alderman was a title anciently given to various judicial officer?, as the Alderman of all Eng-land, Alderman of the King, Alderman of the County, Alderman of the City or Borough, alder-wan of the Hundred or Wapentake. These were unjudicial officers. See Law Dictionaries.

ILLEGAL JUDGES. 167

designed they should attend the trial of such causes. Besides,the chapter here spoken of (in John's charter) does not allowthese justices to sit alone in jury trials, even in civil actions;but provides that four knights, chosen by the county, shall sit

neighboring feudal superiors. By an edict of Phillip Augustus, in the year 1190ythosebailiffs were appointed in all the principal towns of the kingdom." — Millar's Hist.View of the Eng. Gov., vol. ii., ch. 3, p. 126.

"BAiiAiT-ojfi.ee. — Magistrates who formerly administered justice in the parliamentsi>r courts of France, answering to the English sheriffs, as mentioned by Bracton."—Bouvier's Law Diet.

" There be several officers called bailiffs, whose offices and employments seem quitedifferent from each other. . . The chief magistrate, in divers ancient corporations,are called bailiffs, as in Ipswich, Yarmouth, Colchester, Ac. There are, likewise, offi-cers of the forest, who are termed bailiils."—1 Bacon's Abridgment, 498—9,

" BAILIFF signifies a keeper or superintendent, and is directly derived from the Frenchword bailli, which appears to come from the word balivus, and that from bagalus, a Latinword signifying generally a governor, tutor, or superintendent. . . The Frenchword bailli is thus explained by Richelet, (Dictionaire, &c. :> Bailli. — He who in a prov-ince has the superintendence of justice, who is the ordinary judge of the nobles, who is theirhead for the ban and arriere ban,* and who maintains the right and property of othersagainst those who attack them. . . All the various officers who are called by thisname, though differing as to the nature of their employments, seem to have some kindof superintendence intrusted to them by their superior.'*—Political Dictionary.

" BAILIFF, balivus. From the French word bayliff, that is, prafedits provincite, and asthe name, so the office itself was answerable to that of France, where there were eightparliaments, which were high courts from whence there lay no appeal, and within theprecincts of the several parts of that kingdom which belonged to each parliament,there were several provinces to which justice was administered by certain officers called bailiffs zand in England we have several counties in which justice hath been, and still is, insmall suits, administered to the inhabitants by the officer whom we now call sheriff, orviscount; (one of which names descends from the Saxons, the other from the Normans.)And, though the sheriff is not called bailiff, yet it was probable that was one of hisnames also, because the county is often called balliva; as in the return of a writ, wherethe person is not arrested, the sheriff saith, infra-nominatus, A. B. non est inventus inballiva mea, &c; (the within named A. B. is not found in my bailiwick, Ac.) And inthe statute of Magna Carta, ch. 28, and 14 Ed. 3, ch. 9, the word bailiff seems to com-prise as well sheriffs, as bailiffs of hundreds.

" Bailies, in Scotland, are magistrates of burghs, possessed of certain jurisdictions,having the same power within their territory as sheriffs in the county. . .

" As England is divided into counties, so every county is divided into hundreds; withinwhich, in ancient times, the people had justice administered to them by the several offi-cers of every hundred, which were the bailiffs. And it appears by Bracton, (lib. 3, tract.2, ch. 34,) that bailiffs of hundreds might anciently hold plea of appeal and approvers;but since that time the hundred courts, except certain franchises, are swallowed in thecounty courts; and now the bailiff's name and office is grown into contempt, they being

* " Ban and arriere ban, a proclamation, whereby all that hold lands of the crown, (except someprivileged officers and citizens,) are summoned to meet at a certain place in order to serve the kingin Ma wars, either personally, or by proxy."—Boyer.

168 TRIAL BY JURY.

with them to keep them honest. When the king's justiceswere known to be so corrupt and servile that the people wouldnot even trust them to sit alone, in jury trials, in civil actions,

generally officers to serve writs, Ac , within their liberties; though, in other respeots,the name is still in good esteem, for the chief magistrates in divers towns are calledbailiffs; and sometimes the persons to whom the king's castles are committed aretermed bailiffs, as the bailiff of Dover Castle, Ac.

" Of the ordinary bailiffs there are several sorts, viz., bailiffs of liberties; sheriffs'bailiffs; bailiffs of lords of manors; bailiffs of husbandry, Ac. .

" Bailiffs of liberties or franchises are to be sworn to take distresses, truly impaneljurors, make returns by indenture between them and sheriffs, Ac.

" Bailiffs of courts baron summon those courts, and execute the process thereof. . ." Besides these, there are also bailiffs of the forest. . . " — Jacob's Law Diet. Tom-

lin's do.

" BAILIWICK, balliva, — is not only taken for the couhty, but signifies generally thatliberty which is exempted from the sheriff of the county, over which the lord of theliberty appointeth a bailiff, with such powers within his precinct as an under-sheriffexerciseth under the sheriff of the county; such as the bailiff of Westminster." —Jacob's Law Diet. TomUn's do.

"A bailiff of a Lett, Court-baron, Manor, Balivus Letce, Baronis, Manerii. — He is onethat is appointed by the lord, or his steward, within every manor, to do such offices asappertain thereunto, as to summon the court, warn the tenants and resiants; also, tosummon the Leet and Homage, levy fines, and make distresses, Ac, of which you mayread at large in Kitchen's Court-leet and Court-baron." — A Law Dictionary, anonymous,(in Suffolk Law Library.)

"BAILIFF. — In England an officer appointed by the sheriff. Bailiffs are eitherspecial, and appointed, for their adroitness, to arrest persons; or bailiffs of hundreds,who collect fines, summon juries, attend the assizes, and execute writs and processes.The sheriff in England is the king's bailiff. . .

" The office of bailiff formerly was high and honorable in England, and officers under thattitle on the continent are still invested with important functions."— Webster.

" BAILLI, (Scotland.) — An alderman; a magistrate who is second in rank in a royalburgh."— Worcester.

"Baili, or Bailiff. — (Sorte d'officier de justice.) A bailiff; a sort of magistrate."— Boyer's French Diet.

" By some opinions, a bailiff, in Magna Carta, ch. 28, signifies any judge." — Cunning'ham's Law Diet.

" BAILIFF. — In the court of the Greek emperors there was a grand bajulos, first tutorof the emperor's children. The superintendent of foreign merchants seems also to havebeen called bajulos; and, as he was appointed by the Venetians, this title (balio) wastransferred to the Venetian ambassador. From Greece, the official bajulos (ballivus,bailli, in France; bailiff, in England,) was introduced into the south of Europe, anddenoted a superintendent; hence the eight ballivi of the knights of St. John, whichconstitute its supreme council. In France, the royal bailiffs were commanders of themilitia, administrators or stewards of the domains, and judges of their districts. In thecourse of time, only the first duty remained to the bailiff; hence he was bailli d'tpte,and laws were administered in his name by a lawyer, as his deputy, lieutenant de robe. Theseigniories, with which high courts were connected, employed bailiffs, who thus oonsti-

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how preposterous is it to suppose that they would not onlysuffer them to sit, but to sit alone, in criminal ones.

It is entirely incredible that Magna Carta, which makes suchcareful provision in regard to the king's justices sitting in civilactions, should make no provision whatever as to their sittingin criminal trials, if they were to be allowed to sit in them atall. Yet Magna Carta has no provision whatever on thesubject.*

tuted, almost everywhere, the lowest order of judges. From the courts of the nobility,the appellation passed to the royal courts; from thence to the parliaments. In thegreater bailiwicks of cities of importance, Henry I I . established a collegial constitutionunder the name of presidial courts. . . The name of bailiff was introduced into Eng-land with William I. The counties were also called bailiwicksy (balliva,) while the sub-divisions were called hundreds; but, as the courts of the hundreds have long sinceceased, the English bailiffs are only a kind of subordinate officers of justice, like theFrench huissiers. These correspond very nearly to the officers called constables in theUnited States. Every sheriff has some of them under him, for whom he is answerable.In some cities the highest municipal officer yet bears this name, as the high bailiff ofWestminster. In London, the Lord Mayor is at the same time bailiff, (which title hebore before the present became usual,) and administers, in this quality, the criminal juris-diction of the city, in the court of old Bailey, where there are, annually, eight sittings ofthe court, for the city of London and the county of Middlesex. Usually, the recorder ofLondon supplies Ids place as judge. In some instances the term bailiff, in England, isapplied to the chief magistrates of towns, or to the commanders of particular castles,as that of Dover. The term baillie, in Scotland, is applied to a judicial police-officer,having powers very similar to those of justices of peace in the United States." — En-cyclopaedia Americana.

* Perhaps it may be said (and such, it has already been seen, is the opinion of Cokeand others?) that the chapter of Magna Carta, that " no bailiff from henceforth shall putany man to bis open law, (put him on trial,) nor to an oath (that is, an oath of self-exculpation) upon his (the bailiff's) own accusation or testimony, without credible wit-nesses brought in to prove the charge," is itself a " provision in regard to the king'sjustices sitting in criminal trials," and therefore implies that they are to sit in suchtrials.

But, although the word bailiff includes all judicial, as well as other, officers, and wouldtherefore in this case apply to the king's justices, if they were to sit in criminal trials;yet this particular chapter of Magna Carta evidently does not contemplate " bailiffs "while acting in their judicial capacity, (for they were not allowed to sit in criminaltrials at all,) but only in the character of witnesses; and that the meaning of thechapter is, that the simple testimony (simplici loquela) of "no bailiff," (of whateverkind,) unsupported by other and " credible witnesses," shall be sufficient to put anyman on trial, or to his oath of self-exculpation.*

I t will be noticed that the words of this chapter are not, " no bailiff of ours," — thatis, of the king, — as in some other chapters of Magna Carta; but simply " no bailiff,"Ac. The prohibition, therefore, applies to all " bailiffs," — to those chosen by the peo-

* At the common law, parties, in both civil and criminal cases, were allowed to swear in their ownbehalf; and it will be so again, if the true trial by jury should be reestablished.

15

170 TRIAL FY JURY,

But what would appear to make this matter absolutely cer-tain is, that unless the prohibition that "no bailiff, &c, ofours shall hold pleas of our crown,'r apply to all officers of theking, justices as well as others, it would be wholly nugatoryfor any practical or useful purpose, because the prohibitioncould be evaded by the king, at any time, by simply changingthe titles of his officers. Instead of calling them "sheriffs,coroners, constables and bailiffs," he could call them "justices"or anything else he pleased; and this prohibition,, so importantto the liberty of the people, would then be entirely defeated.The king also could make and unmake "justices" at hispleasure; and if he could appoint any officers whatever topreside over juries in criminal trials, he could appoint anytool that he might at any time find adapted to his purpose. Itwas as easy to make justices of Jeffreys and Scroggs, as ofany other material; and to have prohibited all the king's offi-cers, except his justices, from presiding in criminal trials, wouldtherefore have been mere fool's play.

We can all perhaps form some idea, though few of us willbe likely to form any adequate idea, of what a different thing

pie, as well as those appointed by the king. And the prohibition is obviously foundedupon the idea (a very sound one in that age certainly, and probably also in this) thatpublic officers (whether appointed by king or people) have generally, or at least fre-quently, too many interests and animosities against accused persons, to make it safe toconvict any man on their testimony alone.

The idea of Coke and others, that the object of this chapter was simply to forbidmagistrates to put a man on trial, when there were no witnesses against him, but onlythe simple accusation or testimony of the magistrates themselves, before whom he wayto be tried, is preposterous; for that would be equivalent to supposing that magis-tiaUsacted in the triple character of judge, jury and witnessesr m the same trial; and that,therefore, in such cases, they needed to be prohibited from condemning a man on theirown accusation or testimony alone. Eut such a provision would have been unneces-sary and senseless, for two reasons; first, because the bailiffs or magistrates had nopower to '* hold pleas of the crown," still less to try or condemn a man; that power rest-ing wholly with the juries; second, because if bailiffs or magistrates could try and con-demn a man, without a jury,, the prohibition upon their doing so upon their own accusa-tion or testimony alone, would give no additional protection to the accused, so long asthese same bailiffs or magistrates were allowed to decide what weight should be given,both to their own testimony and that of other witnesses; for, if they wished to convict, theywould of course decide that any testimony, however frivolous or irrelevant, in additionto their own, was sufficient. Certainly a magistrate could always procure witnessesenough to testify to something or other, which he himself could decide to be corrobora-tive of his own testimony. And thus the prohibition would be defeated in fact, thoughobserved in form.

ILLEGAL JUDGES. 1 7 1

the trial by jury would have been in practice, and of whatwould have been the difference to the liberties of England, forfive hundred years last past, had this prohibition of MagnaCarta, upon the king's officers sitting in the trial of criminalcases, been observed.

The principle of this chapter of Magna Carta, as applicableto the governments of the United States of America, forbidsthat any officer appointed either by the executive or legislativepower, or dependent upon them for their salaries, or responsi-ble to them by impeachment, should preside over a jury mcriminal trials. To have the trial a legal (that is, a commonlaw) and true trial by jury, the presiding officers must bechosen by the people, and be entirely free from all dependenceupon, and all accountability to, the executive and legislativebranches of the government.*

• In this chapter I have called the justices "presiding officers,4' solely for the -wantof a better term. They are not "presiding officers," in the sense of having anyauthority over the jury; but are only assistants to, and teachers and servants of, thejury. The foreman of the jury is properly the " presiding officer," so far as there issuch an officer at all- The sheriff has no authority except over other persons than thejurj.

CHAPTER VIII.

THE FREE ADMINISTRATION OF JUSTICE.

THE free administration of justice was a principle of thecommon law; and it must necessarily be a part of every sys-tem of government which is not designed to be an engine inthe hands of the rich for the oppression of the poor.

In saying that the free administration of justice was a princi-ple of the common law, I mean only that parties were subjectedto no costs for jurors, witnesses, writs, or other necessaries forthe trial, preliminary to the trial itself. Consequently, no onecould lose the benefit of a trial, for the want of means todefray expenses. But after the trial, the plaintiff or defendantwas liable to be amerced, (by the jury, of course,) for havingtroubled the court with the prosecution or defence of an unjustsuit.* But it is not likely that the losing party was subjectedto an amercement as a matter of course, but only in thosecases where the injustice of his cause was so evident as tomake him inexcusable in bringing it before the courts.

All the freeholders were required to attend the courts, thatthey might serve as jurors and witnesses, and do any otherservice that could legally be required of them; and theirattendance was paid for by the state. In other words, theirattendance and service at the courts were part of the rentswhich they paid the state for their lands.

The freeholders, who were thus required always to attend

• 2 Sullivan Lectures, 234-5. 3 Blackstone, 274-6, 376. Sullivan says that bothplaintiffs and defendants were liable to amercement. Blaokstone speaks of plaintiffsbeing liable, without saying whether defendants were so or not. What the rule reallywas I do not know. There would seem to be some reason in allowing defendants todefend themselves, at their own charges, without exposing themselves to amercement incase of failure.

THK FHRK AWMINFSTKATION OT JUSTICE. 173

tri-etionrts, were doubtless the only witnesses who wvreusuallyrequired in civil causes. This was owing to the fact that, 111those days, when the people at large could neither write norread, few contracts were put in writing. The expedientadopted for proving contracts, was that of making them inthe presence of witnesses, who could afterwards testify to thetransactions. Most contracts in regard to lands were madeat the courts, in the presence of the freeholders there assem-bled.*

In the king's courts it was specially provided by MagnaCarta that "justice and right" should not be "sold;" thatis, that the king should take nothing from the parties foradministering justice.

The oath of a party to the justice of his cause was all thatwas necessary to entitle him to the benefit of the courts freeof all expense; (except the risk of being amerced after thetrial, in case the jury should think he deserved it.f)

This principle of the free administration of justice connectsitself necessarily with the trial by jury', because a jury could notrightfully give judgment against any man, in either a civil orcriminal case, if they had any reason to suppose he had beenunable to procure his witnesses.

The true trial by jury would also compel the free adminis-tration of justice from another necessity, viz., that of prevent-ing private quarrels ; because, unless the government enforceda man's rights and redressed his wrongs, free of expense tohim, a jury would be bound to protect him in taking the lawinto his own hands. A man has a natural right to enforce hisown rights and redress his own wrongs. If one man oweanother a debt, and refuse to pay it, the creditor has a naturalright to seize sufficient property of the debtor, wherever he

* When any other witnesses than freeholders were required in a civil suit, I am notaware of the manner in which their attendance was procured; but it was doubtless doneat the expense either of the state or of the witnesses themselves. And it was doubt-less the same in criminal cases.

f" All claims were established in the first stage by the oath of the plaintiff; exceptwhen otherwise specially directed by the law. The oath, by which any claim was sup-ported, was called the fore-oath, or < Prsejuramentum,' and it was the foundation of hisrait. One of the cases which did not require this initiatory confirmation, was whencattle could be tracked into another man's land, and then the foot-mark stood for the/ore-oath." — 2 Palgrave's Rise and Progress, Ac , 114.

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174 TRIAL BY JURY.

can find it, to satisfy the debt. If one man commit a trespassupon the person, property or character of another, the injuredparty has a natural right, either to chastise the aggressor, orto take compensation for the injury out of his property. Butas the government is an impartial party as between theseindividuals, it is more likely to do exact justice between themthan the injured individual himself would do. The govern-ment, also, having more power at its command, is likely toright a man's wrongs more peacefully than the injured partyhimself could do it. If, therefore, the government will do thework of enforcing a man's rights, and redressing his wrongs,promptlyr, and free of expense to him,, he is under a moralobligation to leave the work in the hands of the government;but not otherwise. When the government forbids him toenforce his own rights or redress his own wrongs, and depriveshim of all means of obtaining justice, except on the conditionof his employing the government to obtain it for him, and ofpaying the government for doing it, the government becomesitself fthe protector and accomplice of the wrong-doer. If thegovernment will forbid a man to protect his own rights, itis bound to do it for him, free of expense to him. And so longas government refuses to do this, juries, if they knew theirduties, would protect a man in defending his own rights.

Under the prevailing system, probably one half of the com-munity are virtually deprived of all protection for their rights,except what the criminal law affords them. Courts of justice,for all civil suits, are as effectually shut against them, as thoughit were done by bolts and bars. Being forbidden to maintaintheir own rights by force, — as, for instance, to compel the pay-ment of debts, — and being unable to pay the expenses of civilsuits, they have no alternative but submission to many actsof injustice, against which the government, is bound either toprotect them, free of expense, or allow them to protect them-selves.

There would be the same reason in compelling a party topay the judge and jury for their services, that there is incompelling him to pay the witnesses, or any other necessarycharges.*

* Among the necessary expenses of suits, should be reckoned reasonable compensationto counsel, for they are nearly or quite as important to the administration of justice,

THE FREE ADMINISTRATION OF JUSTICE. 1 7 5

This compelling parties to pay the expenses of civil suits isone of the many cases in which government is false to thefundamental principles on which free government is based.What is the object of government, but to protect men's rights?On what principle does a man pay his taxes to the govern-ment, except on that of contributing his proportion towardsthe necessary cost of protecting the rights of all? Yet, whenhis own rights are actually invaded, the government, whichhe contributes to support, instead of fulfilling its implied con-tract, becomes his enemy, and not only refuses to protect hisrights, (except at his own cost,) but even forbids him to do ithimself.

All free government is founded on the theory of voluntaryassociation; and on the theory that all the parties to it volun-tarily pay their taxes for its support, on the condition ofreceiving protection in return. But the idea that any poorman would voluntarily pay taxes to build up a government,which will neither protect his rights, (except at a cost whichhe cannot meet,) nor suffer himself to protect them by suchmeans as may be in his power, is absurd.

Under the prevailing system, a large portion of the lawsuitsdetermined in courts, are mere contests of purses rather thanof rights. And a jury, sworn to decide causes "according tothe evidence" produced, are quite likely, for aught they them-selves can know, to be deciding merely the comparative lengthof the parties' purses, rather than the intrinsic strength of theirrespective rights. Jurors ought to refuse to decide a cause atall, except upon the assurance that all the evidence, necessary

as are judges, jurors, or witnesses; and the universal practice of employing them, bothon the part of governments and of private persons, shows that their importance is gen-erally understood. As a mere matter of economy, too, it would be wise for the gov-ernment to pay them, rather than they should not be employed; because they collectand arrange the testimony and the law beforehand, so as to be able to present the wholecase to the court and jury intelligibly, and in a short space of time. Whereas, if theywere not employed, the court and jury would be under the necessity either of spendingmuch more time than now in the investigation of causes, or of despatching them inhaste, and with little regard to justice. They would be very likely to do the latter,thus defeating the whole object of the people in establishing courts.

To prevent the abuse of this right, it should perhaps be left discretionary with thejury in each case to determine whether the counsel should receive any pay — and, ifany, how muoh — from the government.

1 7 6 THIAL BY JURY.

to a full knowledge of the cause, is produced. This assurancethey can seldom have, unless the government itself producesall the witnesses the parties desire.

In criminal cases, the atrocity of accusing a man of crime,and then condemning him unless he prove his innocence at hisown charges, is so evident that a jury could rarely, if ever, bejustified in convicting a man under such circumstances.

But the free administration of justice is not only indispensa-ble to the maintenance of right between man and man; itwould also promote simplicity and stability in the laws. Themania for legislation would be, in an important degree, re-strained, if the government were compelled to pay the expensesof all the suits that grew out of it.

The free administration of justice would diminish and nearlyextinguish another great evil, — that of malicious civil suits.It is an old saying, that "multi litigant inforo, non ut aliquidlucrentur, sed ut vexant alios." (Many litigate in court, not thatthey may gain anything, but that they may harass others.)Many men, from motives of revenge and oppression, are wil-ling to spend their own money in prosecuting a groundlesssuit, if they can thereby compel their victims, who are lessable than themselves to bear the loss, to spend money in thedefence. Under the prevailing system, in which the partiespay the expenses of their suits, nothing but money is necessaryto enable any malicious man to commence and prosecute agroundless suit, to the terror, injury, and perhaps ruin, of an-other man. In this way, a court of justice, into which nonebut a conscientious plaintiff certainly should ever be allowedto enter, becomes an arena into which any rich and revengefuloppressor may drag any man poorer than himself, and harass,terrify, and impoverish him, to almost any extent. It is a scan-dal and an outrage, that government should suffer itself to bemade an instrument, in this way, for the gratification of pri-vate malice. We might nearly as well have no courts ofjustice, as to throw them open, as we do, for such flagitioususes. Yet the evil probably admits of no remedy except afree administration of justice. Under a free system, plaintiffscould rarely be influenced by motives of this kind; becausethey could put their victim to little or no expense, neither

THE FREE ADMINISTRATION OF JUSTICE. 1 7 7

pending the suit, (which it is the object of the oppressor to do,)nor at its termination. Besides, if the ancient common lawpractice should be adopted, of amercing a party for troublingthe courts with groundless suits, the prosecutor himself would,in the end, be likely to be amerced by the jury, in such a man-ner as to make courts of justice a very unprofitable place for aman to go to seek revenge.

In estimating the evils of this kind, resulting from the pres-ent system, we are to consider that they are not, by any means,confined to the actual suits in which this kind of oppression ispractised; but we are to include all those cases in which thefear of such oppression is used as a weapon to compel meninto a surrender of their rights.

CHAPTER IX.

THE CRIMINAL INTENT.

IT is a maxim of the common law that there can be nocrime without a criminal intent. And it is a perfectly clearprinciple, although one which judges have in a great measureoverthrown in practice, that jurors are to judge of the moralintent of an accused person, and hold him guiltless, whateverhis act, unless they find him to have acted with a criminalintent; that is, with a design to do what he knew to be crim-inal.

This principle is clear, because the question for a jury todetermine is, whether the accused be guilty, or not guilty.Guilt is a personal quality of the actor, — not necessarilyinvolved in the act, but depending also upon the intent ormotive with which the act was done. Consequently, the jurymust find that he acted from a criminal motive, before theycan declare him guilty.

There is no mopal justice in, nor any political necessity for,punishing a man for any act whatever that he may have com-mitted, if he have done it without any criminal intent. Therecan be no moral justice in punishing for such an act, because,there having been no criminal motive, there can have been noother motive which justice can take cognizance of, as demand-ing or justifying punishment. There can be no political neces-sity for punishing, to warn against similar acts in future,because, if one man have injured another, however uninten-tionally, he is liable, and justly liable, to a civil suit for dam-ages ; and in this suit he will be compelled to make compen-sation for the injury, notwithstanding his innocence of anyintention to injure. He must bear the consequences of his ownact, instead of throwing them upon another, however innocent

THE CRIMINAL INTENT. 179

he may have been of any intention to do wrong. And thedamages he will have to pay will be a sufficient warning tohim not to do the like act again.

If it be alleged that there are crimes against the public, (astreason, for example, or any other resistance to government,)for which private persons can recover no damages, and thatthere is a political necessity for punishing for such offences,even though the party acted conscientiously, the answer is, —the government must bear with all resistance that is not soclearly wrong as to give evidence of criminal intent. In otherwords, the government, in all its acts, must keep itself soclearly within the limits of justice, as that twelve men, takenat random, will all agree that it is in the right, or it must incurthe risk of resistance, without any power to punish it. Thisis the mode in which the trial by jury operates to prevent thegovernment from falling into the hands of a party, or a fac-tion, and to keep it within such limits as all, or substantiallyall, the people are agreed that it may occupy.

This necessity for a criminal intent, to justify conviction,is proved by the issue which the jury are to try, and the ver-dict they are to pronounce. The " issue " they are to try is,"guilty" or "not guilty" And those are the terms they arerequired to use in rendering their verdicts. But it is a plainfalsehood to say that a man is "guilty" unless he have donean act which he knew to be criminal.

This necessity for a criminal intent — in other words, forguilt—as a preliminary to conviction, makes it impossiblethat a man can'be rightfully convicted for an act that is intrin-sically innocent, though forbidden by the government; becauseguilt is an intrinsic quality of actions and motives, and not onethat can be imparted to them by arbitrary legislation. All theefforts of the government, therefore, to " make offences by stat-ute" out of acts that are not criminal by nature, must neces-sarily be ineffectual, unless a jury will declare a man "guilty"for an act that is really innocent.

The corruption of judges, in their attempts to uphold thearbitrary authority of the government, by procuring the con-viction of individuals for acts innocent in themselves, and for-bidden only by some tyrannical statute, and the commission

180 TRIAL BY JURY.

of which therefore indicates no criminal intent, is very appar-ent.

To accomplish this object, they have in modern times heldit to be unnecessary that indictments should charge, as by thecommon law they were required to do, that an act was done"wickedly," "feloniously" "with malice aforethought" ox inany other manner that implied a criminal intent, withoutwhich there can be no criminality; but that it is sufficient tocharge simply that it was done "contrary to the form of thestatute in such case made and provided." This form of in-dictment proceeds plainly upon the assumption that the gov-ernment is absolute, and that it has authority to prohibitany act it pleases, however innocent in its nature the actmay be. Judges have been driven to the alternative ofeither sanctioning this new form of indictment, (which theynever had any constitutional right to sanction,) or of seeingthe authority of many of the statutes of the government fallto the ground; because the acts forbidden by the statutes wereso plainly innocent in their nature, that even the governmentitself had not the face to allege that the commission of themimplied or indicated any criminal intent.

To get rid of the necessity of showing a criminal intent,and thereby further to enslave the people, by reducing them tothe necessity of a blind, unreasoning submission to the arbi-trary will of the government, and of a surrender of all right,on their own part, to judge what are their constitutional andnatural rights and liberties, courts have invented another idea,which they have incorporated among the pretended maxims,upon which they act in criminal trials, viz., that "ignoranceof the late excuses no one." As if it were in the nature of thingspossible that there could be an excuse more absolute and com-plete. What else than ignorance of the law is it that excusespersons under the years of discretion, and men of imbecileminds? What else than ignorance of the law is it thatexcuses judges themselves for all their erroneous decisions?Nothing. They are every day committing errors, whichwould be crimes, but for their ignorance of the law. And yetthese same judges, who claim to be learned in the law, andwho yet could not hold their offices for a day, but for the

THE CRIMINAL INTENT. 1 8 1

allowance which the law makes for their ignorance, are con-tinually asserting it to be a "maxim" that " ignorance of thelaw excuses no one;" (by which, of course, they really meanthat it excuses no one but themselves; and especially that itexcuses no unlearned man, who comes before them chargedwith crime )

This preposterous doctrine, that " ignorance of the lawexcuses no one," is asserted by courts because it is an indis-pensable one to the maintenance of absolute power in the gov-ernment. It is indispensable for this purpose, because, if it beonce admitted that the people have any rights and libertieswhich the government cannot lawfully take from them, thenthe question arises in regard to every statute of the govern-ment, whether it be law, or not; that is, whether it infringe,or not, the rights and liberties of the people. Of this questionevery man must of course judge according to the light in hisown mind. And no man can be convicted unless the juryfind, not only that the statute is law, — that it does not infringethe rights and liberties of the people, — but also that it wasso clearly law, so clearly consistent with the rights and liber-ties of the people, as that the individual himself, who trans-gressed it, knew it to be so, and therefore had no moral excusefor transgressing it. Governments see that if ignorance of thelaw were allowed to excuse a man for any act whatever, itmust excuse him for transgressing all statutes whatsoever, whichhe himself thinks inconsistent with his rights and liberties.But such a doctrine would of course be inconsistent with themaintenance of arbitrary power by the government; andhence governments will not allow the plea, although they willnot confess their true reasons for disallowing it.

The only reasons, (if they deserve the name of reasons), thatI ever knew given for the doctrine that ignorance of the lawexcuses no one, are these :

1. " The reason for the maxim is that of necessity. It pre-vails, ' not that all men know the law, but because it is ar>excuse which every man will make, and no man can tell howto confute him.' — Selden, (as quoted in the 2d edition ofStarkie on Slander, Prelim. Disc, p. 140, note.)" — Law Mag-azine, (London,} vol. 27, p. 97.

16

1S2 TRIAL BY JURY.

This reason impliedly admits that ignorance of the law is,intrinsically, an ample and sufficient excuse for a crime; andthat the excuse ought to be allowed, if the fact of ignorancecould but be ascertained. But it asserts that this fact is inca-pable of being ascertained, and that therefore there is a neces-sity for punishing the ignorant and the knowing — that is, theinnocent and the guilty — without discrimination.

This reason is worthy of the doctrine it is used to uphold;as if a plea of ignorance, any more than any other plea, mustnecessarily be believed simply because it is urged ; and as ifit were not a common and every-day practice of courts aridjuries, in both civil and criminal cases, to determine the men-tal capacity of individuals; as, for example, to determinewhether they are of sufficient mental capacity to make rea-sonable contracts; whether they are lunatic; whether theyare compotes mentis, " of sound mind and memory," &c. &c.And there is obviously no more difficulty in a jury's determin-ing whether an accused person knew the law in a criminalcase, than there is in determining any of these other questionsthat are continually determined in regard to a man's mentalcapacity. For the question to be settled by the jury is notwhether the accused person knew the particular penaltyattached to his act, (for at common law no one knew whatpenalty a jury would attach to an offence,) but whether heknew that his act was intrinsically criminal. If it wereintrinsically criminal, it was criminal at common law. If itwas not intrinsically criminal, it was not criminal at commonlaw. (At least, such was the general principle of the commonlaw. There may have been exceptions in practice, owing tothe fact that the opinions of men, as to what was intrinsicallycriminal, may not have been in all cases correct.)

A jury, then, in judging whether an accused person knewhis act to be illegal, were bound first to use their own judg-ments, as to whether the act were intrinsically criminal. Iftheir own judgments told them the act was intrinsically andclearly criminal, they would naturally and reasonably inferthat the accused also understood that it was intrinsically crim-inal, (and consequently illegal,) unless it should appear that hewas either below themselves in the scale of intellect, or had


had less opportunities of knowing what acts were criminal. Inshort, they would judge, from any and every means theymight have of judging; and if they had any reasonable doubtthat he knew his act to be criminal in itself, they would bebound to acquit him.

The second reason that has been offered for the doctrinethat ignorance of the law excuses no one, is this:

" Ignorance of the municipal law of the kingdom, or of thepenalty thereby inflicted on offenders, doth not excuse any thatis of the age of discretion and compos mentis, from the penaltyof the breach of it; because every person, of the age of dis-cretion and compos mentis, is bound to know the law, and pre-sumed to do so. Ignorantm eorum,, quce quis scire tenetur nonexcusaty (Ignorance of those things which every one isbound to know, does not excuse.) — 1 HaWs Pleas of theCrown, 42. Doctor and Student, Dialog. 2, ch. 46. LawMagazine, (London,) vol. 27, p. 97.

The sum of this reason is, that ignorance of the law excusesno one, (who is of the age of discretion and is compos mentis,)because every such person " is bound to know the law." Butthis is giving no reason at all for the doctrine, since saying thata man " is bound to know the law," is only saying, in anotherform, that "ignorance of the law does not excuse him."There is no difference at all in the two ideas. To say, there-fore, that " ignorance of the law excuses no one, because everyone is bound to know the law," is only equivalent to sayingthat " ignorance of the law excuses no one, because ignoranceof the law excuses no one." It is merely reasserting the doc-trine, without giving any reason at all.

Arid yet these reasons, which are really no reasons at all,are the only ones, so far as I know, that have ever been offeredfor this absurd and brutal doctrine.

The idea suggested, that " the age of discretion" determinesthe guilt of a person, — that there is a particular age, prior towhich all persons alike should be held incapable of knowingany crime, and subsequent to which all persons alike shouldbe held capable of knowing all crimes,—is another of this mostridiculous nest of ideas. All mankind acquire their knowledgeof crimes, as they do of other things, gradually. Some theylearn at an early age; others not till a later one. One individ-

184 TRIAL BY JURY.

ual acquires a knowledge of crimes, as he does of arithmetic,at an earlier age than others do. And to apply the same pre-sumption to all, on the ground of age alone, is not only grossinjustice, but gross folly. A universal presumption might,with nearly or quite as much reason, be founded upon weight,or height, as upon age.*

This doctrine, that Ci ignorance of the law excuses no one,'r

is constantly repeated in the form that "every one is bound toknow the law." The doctrine is true in civil matters, espec-ially in contracts, so far as this: that no man, who has theordinary capacity to make reasonable contracts, can escapethe consequences of his own agreement, on the ground that hedid not know the law applicable to it. When a man makes acontract, he gives the other party rights; and he must of neces-sity judge for himself, and take his own risk, as to what thoserights are, — otherwise the contract would not be binding, andmen could not make contracts that would convey rights toeach other. Besides, the capacity to make reasonable con-

* This presumption, founded upon age alone, is as absurd in civil matters as in crim-inal. What can be more entirely ludicrous than the idea that all men (not manifestlyimbecile) become mentally competent to make all contracts whatsoever on the daythey become twenty-one years of age 1 — and that, previous to that day, no manbecomes oompetent to make any contract whatever, except for the present supply oSthe most obvious wants-of nature 1 In reason* a man's legal competency to make bind-ing contracts, in any and every case whatever,, depends wholly upon his mental capac-ity to make reasonable contracts in each particular case. It of course requires moracapacity to make a reasonable contract in some cases than in others.. It requires, forexample, more capacity to make a reasonable contract in the purchase of a large;estate, than in the purchase of a pair of shoes» But the mental capacity to make areasonable contract, in any particular case, is, in reason, the only legal criterion of thalegal competency to make a binding contraot in that case. The age, whether more orless than twenty-one years, is of no legal consequence whatever, except that it is entitledto some consideration as evidence of capacity.

It may be mentioned, in this connection, that the rules that prevail, that every maais entitled to freedom from parental authority at twenty-one years of age, and no onebefore that age, are of the same class of absurdities with those that have been men-tioned. The only ground on which a parent is ever entitled to exercise authority overhis child, is that the child is inoapable of taking reasonable ©are of himself. The ohildwould be entitled to his freedom from his birth, if he were at that time oapable oftaking reasonable care of himself. Some become capable of taking care of themselvesat an earlier age than others. And whenever any one becomes capable of taking rea-sonable care of himself, and not until then, he is entitled to his freedom, be his age moreor less.

These principles would prevail under the true trial by jury, the jury being the judgeaof the capacity of every individual whose capacity should be called in question.


tracts, implies and includes a capacity to form a reasonablejudgment as to the law applicable to them. But in criminalmatters, where the question is one of punishment, or not;where no second party has acquired any right to have thecrime punished, unless it were committed with criminal intent,(but only to have it compensated for by damages in a civilsuit;) and when the criminal intent is the only moral justifica-tion for the punishment, the principle does not apply, and a manis bound to know the law only as well as he reasonably may.The criminal law requires neither impossibilities nor extraor-dinaries of any one. It requires only thoughtfulness and agood conscience. It requires only that a man fairly and prop-erly use the judgment he possesses, and the means he has oflearning his duty. It requires of him only the same care toknow his duty in regard to the law, that he is morally boundto use in other matters of equal importance. And this care itdoes require of him. Any ignorance of the law, therefore, thatis unnecessary, or that arises from indifference or disregard ofone's duty, is no excuse. An accused person, therefore, maybe rightfully held responsible for such a knowledge of thelaw as is common to men in general, having no greater natu-ral capacities than himself, and no greater opportunities forlearning the law. And he can rightfully be held to no greaterknowledge of the law than this. To hold him responsible fora greater knowledge of the law than is common to mankind,when other things are equal, would be gross injustice and cru-elty. The mass of mankind can give but little of their atten-tion to acquiring a knowledge of the law. Their other dutiesin life forbid it. Of course, they cannot investigate abstruseor difficult questions. AH that can rightfully be required ofeach of them, then, is that he exercise such a candid and con-scientious judgment as it is common for mankind generally toexercise in such matters. If he have done this, it would bemonstrous to punish him criminally for his errors; errors notof conscience, but only of judgment. It would also be con-trary to the first principles of a free government (that is, agovernment formed by voluntary association) to punish menin such cases, because it would be absurd to suppose that anyman would voluntarily assist to establish or support a govern-

16*

186 TRIAL BY JURY.

ment that would punish himself for acts which he himself didnot know to be crimes. But a man may reasonably unitewith his fellow-men to maintain a government to punish thoseacts which he himself considers criminal, and may reasonablyacquiesce in his own liability to be punished for such acts. Asthose are the only grounds on which any one can be supposedto render any voluntary support to a government, it followsthat a government formed by voluntary association, and ofcourse having no powers except such as all the associates haveconsented that it may have, can have no power to punish aman for acts which he did not himself know to be criminal.

The safety of society, which is the only object of the crim-inal law, requires only that those acts which are understood bymankind at large to be intrinsically criminal, should be pun-ished as crimes. The remaining few (if there are any) maysafely be left to go unpunished. Nor does the safety of societyrequire that any individuals, other than those who have suffi-cient mental capacity to understand that their acts are crim-inal, should be criminally punished. All others may safely beleft to their liability, under the civil law, to compensate fortheir unintentional wrongs.

The only real object of this absurd and atrocious doctrine,that " ignorance of the law (that is, of crime) excuses no one,"and that " everyone is bound to know the criminal law," (thatis, bound to know what is a crime,) is to maintain an entirelya-rbitrary authority on the part of the government, and to denyto the people all right to judge for themselves what their ownrights and liberties are. In other words, the whole object ofthe doctrine is to deny to the people themselves all right tojudge what statutes and other acts of the government are con-sistent or inconsistent with their own rights and liberties; andthus to reduce the people to the condition of mere slaves to adespotic power, such as the people themselves would neverhave voluntarily established, and the justice of whose laws thepeople themselves cannot understand.

Under the true trial by jury all tyranny of this kind wouldbe abolished. A jury would not only judge what acts werereally criminal, but they would judge of the mental capacityof an accused person, and of his opportunities for understand-


ing the true character of his conduct. In short, they wouldjudge of his moral intent from all the circumstances of the case,and acquit him, if they had any reasonable doubt that heknew that he was committing a crime.*

* In contrast to the doctrines of the text, it may be proper to present more distinctlythe doctrines that are maintained by judges, and that prevail in courts of justice.

Of course, no judge, either of the present day, or perhaps within the last five hun-dred years, has admitted the right of a jury to judge of the justice of a law, or to holdany law invalid for its injustice. Every judge asserts the power of the government topunish for acts that are intrinsically innocent, and which therefore involve or evinceno criminal intent. To accommodate the administration of law to this principle, alljudges, so far as I am aware, hold it to be unnecessary that an indictment shouldcharge, or that a jury should find, that an act was done with a criminal intent, exceptin those cases where the act is malum in se, — criminal in itself. In all other cases, sofar as I am aware, they hold it sufficient that the indictment charge, and consequentlythat the jury find, simply that the act was done " contrary to the form of the statutein such case made and provided ;" in other words, contrary to the orders of the gov-ernment.

All these doctrines prevail universally among judges, and are, I think, uniformlypractised upon in courts of justice ; and they plainly involve the most absolute despot-ism on the part of the government.

But there is still another doctrine that extensively, and perhaps most generally, pre-vails in practice, although judges are not agreed in regard to its soundness. It is this :that it is not even necessary that the jury should see or know, for themselves, what thelaw is that is charged to have been violated; nor to see or know, for themselves, that theact charged was in violation of any law whatever;—but that it is sufficient that theybe simply told by the judge that any act whatever, charged in an indictment, is in viola-tion of law, and that they are then bound blindly to receive the declaration as true, andconvict a man accordingly, if they find that he has done the act charged.

This doctrine is adopted by many among the most eminent judges, and the reasons forit are thus given by Lord Mansfield :

«* They (the jury) do not know, and are not presumed to know, the law. They arenot sworn to decide the law;* they are not required to do it. . . The jury oughtnot to assume the jurisdiction of law. They do not know, and are not presumed toknow, anything of the matter. They do not understand the language in which it isconceived, or the meaning of the terms. They have no rule to go by but their pas-sions and wishes." — 3 Term Rep., 428, note.

What is this but saying that the people, who are supposed to be represented in juries,and who institute and support the government, (of course for the protection of theirown rights and liberties, as they understand them, for plainly no other motive can beattributed to them,) are really the slaves of a despotic power, whose arbitrary com-mands even they are not supposed competent to understand, but for the transgressionof which they are nevertheless to be punished as criminals 1

This is plainly the sum of the doctrine, because the jury are the peers (equals) of theaccused, and are therefore supposed to know the law as well as he does, and as well asit is known by the people at large. If they (the jury) are not presumed to know the

* this declaration of Mansfield, that juries in England " are not sworn to decide the law " incriminal cases, is a plain falsehood. They are sworn to try the whole case at issue between theking and the prisoner, and that includes the law as well as the fact. See juror's oath, page 86.

188 TRIAL BY JURY.

law, neither the accused nor the people'at large can be presumed to know it. Hence, itfollows that one principle of the true trial by jury is, that no accused person shall be heldresponsible for any other or greater knowledge of the law than is common to his politicalequals, who will generally be men of nearly similar condition in life. But the doctrineof Mansfield is, that the body of the people, from whom jurors are taken, are responsibleto a law, which it is agreed they cannot understand. What is this but despotism 1 — andnot merely despotism, but insult and oppression of the intensest kind 1

This doctrine of Mansfield is the doctrine of all who deny the right of juries to judgeof the law, although all may not choose to express it in so blunt and unambiguousterms. But the doctrine evidently admits of no other interpretation or defenoe.

CHAPTER X.

MORAL CONSIDERATIONS FOR JURORS.

THE trial by jury must, if possible, be construed to be suchthat a man can rightfully sit in a jury, and unite with his fel-lows in giving judgment. But no man can rightfully do this,unless he hold in his own hand alone a veto upon any judg-ment or sentence whatever to be rendered by the jury againsta defendant, which veto he must be permitted to use accordingto his own discretion and conscience, and not bound to useaccording to the dictation of either legislatures or judges.

The prevalent idea, that a juror may, at the mere dictationof a legislature or a judge, and without the concurrence of hisown conscience or understanding, declare a man "guilty" andthus in effect license the government to punish him; and thatthe legislature or the judge, and not himself, has in that caseall the moral responsibility for the correctness of the principleson which the judgment was rendered, is one of the many grossimpostures by which it could hardly have been supposed thatany sane man could ever have been deluded, but which gov-ernments have nevertheless succeeded in inducing the peopleat large to receive and act upon.

As amoral proposition, it is perfectly self-evident that, unlessjuries have all the legal rights that have been claimed for themin the preceding chapters, — that is, the rights of judging whatthe law is, whether the law be a just one, what evidence isadmissible, what weight the evidence is entitled to, whetheran act were done with a criminal intent, and the right also tolimit the sentence, free of all dictation from any quarter, —they have no moral right to sit in the trial at all, and cannotdo so without making themselves accomplices in any injusticethat they may have reason to believe may result from their


verdict. It is absurd to say that they have no moral respon-sibility for the use that may be made of their verdict by thegovernment, when they have reason to suppose it will be usedfor purposes of injustice.

It is, for instance, manifestly absurd to say that jurors haveno moral responsibility for the enforcement of an unjust law,when they consent to render a verdict of guilty for the trans-gression of it; which verdict they know, or have good reasonto believe, will be used by the government as a justificationfor inflicting a penalty.

It is absurd, also, to say that jurors have no moral responsi-bility for a punishment inflicted upon a man against law, when,at the dictation of a judge as to what the law is, they haveconsented to render a verdict against their own opinions of thelaw.

It is absurd, too, to say that jurors have no moral responsi-bility for the conviction and punishment of an innocent man,when they consent to render a verdict against him on thestrength of evidence, or laws of evidence, dictated to them bythe court, if any evidence or laws of evidence have beenexcluded, which they (the jurors) think ought to have beenadmitted in his defence.

It is absurd to say that jurors have no moral responsibilityfor rendering a verdict of "guilty" against a man, for an actwhich he did not know to be a crime, and in the commissionof which, therefore, he could have had no criminal intent, inobedience to the instructions of courts that " ignorance of thelaw (that is, of crime) excuses no one."

It is absurd, also, to say that jurors have no moral responsi-bility for any cruel or unreasonable sentence that may beinflicted even upon a guilty man, when they consent to rendera verdict which they have reason to believe will be used bythe government as a justification for the infliction of such sen-tence.

The consequence is, that jurors must have the whole casein their hands, and judge of law, evidence, and sentence, orthey incur the moral responsibility of accomplices in any injus-tice which they have reason to believe will be done by thegovernment on the authority of their verdict.

MORAL CONSIDERATIONS FOR JURORS. 1 9 1

The same principles apply to civil cases as to criminal. Ifa jury consent, at the dictation of the court, as to either law orevidence, to render a verdict, on the strength of which theyhave reason to believe that a man's property will be takenfrom him and given to another, against their own notions ofjustice, they make themselves morally responsible for thewrong.

Every man, therefore, ought to refuse to sit in a jury, andto take the oath of a juror, unless the form of the oath be suchas to allow him to use his own judgment, on every part of thecase, free of all dictation whatsoever, and to hold in his ownhand a veto upon any verdict that can be rendered against adefendant, and any sentence that can be inflicted upon himt

even if he be guilty.Of course, no man can rightfully take an oath as juror, to

try a case " according to law," (if by law be meant anythingother than his own ideas of justice,) nor " according to thelaw and the evidence, as they shall be given him" Nor canhe rightfully take an oath even to try a case " according to theevidence" because in all cases he may have good reason tobelieve that a party has been unable to produce all the evi-dence legitimately entitled to be received. The only oathwhich it would seem that a man can rightfully take as juror,in either a civil or criminal case, is, that he " will try the caseaccording to his conscience." Of course, the form may admitof variation, but this should be the substance. Such, we haveseen, were the ancient common law oaths.

CHAPTER XI.

AUTHORITY OF MAGNA CARTA.

PROBABLY no political compact between king and people wasever entered into in a manner to settle more authoritatively thefundamental law of a nation, than was Magna Carta. Proba-bly no people were ever more united and resolute in demand-ing from their king a definite and unambiguous acknowledg-ment of their rights and liberties, than were the English atthat time. Probably no king was ever more completelystripped of all power to maintain his throne, and at the sametime resist the demands of his people, than was John on the15th day of June, 1215. Probably no king every consented,more deliberately or explicitly, to hold his throne subject tospecific and enumerated limitations upon his power, than didJohn when he put his seal to the Great Charter of the Liber-ties of England. And if any political compact between kingand people was ever valid to settle the liberties of the people,or to limit the power of the crown, that compact is now to befound in Magna Carta. If, therefore, the constitutional author-ity of Magna Carta had rested solely upon the compact ofJohn with his people, that authority would have been entitledto stand forever as the supreme law of the land, unless revokedby the will of the people themselves.

But the authority of Magna Carta does not rest alone uponthe compact with John. When, in the next year, (1216,) hisson, Henry III., came to the throne, the charter was ratifiedby him, and again in 1217, and again in 1225, in substantiallythe same form, and especially without allowing any newpowers, legislative, judicial, or executive, to the king or hisjudges, and without detracting in the least from the powers ofthe jury. And from the latter date to this, the charter hasremained unchanged.

AUTHORITY OF MAGNA CARTA. 193

In the course of two hundred years the charter was con-firmed by Henry and his successors more than thirty times.And although they were guilty of numerous and almost con-tinual breaches of it, and were constantly seeking to evade it,yet such were the spirit, vigilance and courage of the nation,that the kings held their thrones only on the condition of theirrenewed and solemn promises of observance. And it was notuntil 1429, (as will be more fully shown hereafter,) when atruce between themselves, and a formal combination againstthe mass oi the people, had been entered into, by the king, thenobility, and the "forty shilling freeholders" (a class whomMackintosh designates as "a few freeholders then accountedwealthy"*) by the exclusion of all others than such freehold-ers from all voice in the election of knights to represent thecounties in the House of Commons, that a repetition of theseconfirmations of Magna Carta ceased to be demanded andobtained.f

The terms and the formalities of some of these " confirma-tions" make them worthy of insertion at length.

Hume thus describes one which took place in the 38th yearof Henry III. (1253):

" But as they (the barons) had experienced his (the king's)frequent breach of promise, they required that he should ratifythe Great Charter in a manner still more authentic and solemnthan any which he had hitherto employed. All the prelatesand abbots were assembled. They held burning tapers intheir hands. The Great Charter was read before them. Theydenounced the sentence of excommunication against every onewho should thenceforth violate that fundamental law. Theythrew their tapers on the ground, and exclaimed, May the soulof every one who incurs this sentence so stink and corrupt inhell! The king bore a part in this ceremony, and subjoined,'So help me God! I will keep all these articles inviolate, as Iam a man, as I am a Christian, as I am a knight, and as I ama king crowned and anointed.' " —Hume, ch. 12. See also

• Mackintosh's Hist, of Eng., oh. 3. 45 Lardner's Cab. Cyc, 354.t " Forty shilling freeholders " were those " people dwelling and resident in the same

counties, whereof every one of them shall have free land or tenement to the value offorty shillings by the year at the least above all charges." By statute 8 Henry 6, oh.7, (1429,) these freeholders only were allowed to vote for members of Parliament fromthe counties.

17

1 9 4 TRIAL BY JURT.

Blackstones Introd. to the Charters. Black. Law Tracts,Oxford ed., p. 332. Mackintosh's Hist, of Eng., ch. 3.Lardner's Cab. Cyc, voL 45, p. 233-4.

The following is the form of " the sentence of excommuni-cation " referred to by Hume :

" The Sentence of Curse, Given by the Bisfi&ps, againstthe Breakers of the Charters.

" The year of our Lord a thousand two hundred and fifty-three, the third day of May, in the great Hall of the King atWestminster, in the presence, and by the assent, of the LordHenry, by the Grace of God King of England, and the Lords*Richard, Earl of Cornwall, his brother, Roger (Bigot) Earl ofNorfolk and Suffolk, marshal of England, Humphrey, Ear*of Hereford, Henry, Earl of Oxford, John, Earl of Warwick,and other estates of the Realm of England: We, Boniface, bythe mercy of God Archbishop of Canterbury, Primate of allEngland, F. of London, H. of Ely, & of Worcester, E. ofLincoln, W. of Norwich, P. of Hereford, W. of Salisbury, W.of Durham, R. of Exeter, M. of Carlisle, W. of Bath, E. ofRochester, T. of Saint David's, Bishops, apparelled in Pontif-icals, with tapers burning, against the breakers of the Church'sLiberties, and of the Liberties or free customs of the Realm ofEngland, and especially of those which are contained in theCharter of the Common Liberties of the Realm, and the Char-ter of the Forest, have solemnly denounced the sentence ofExcommunication in this form. By the authority of AlmightyGod, the Father, the Son, and the Holy Ghost, and of the glo-rious Mother of God, and perpetual Virgin Mary, of the blessedApostles Peter and Paul, and of all apostles, of the blessedThomas, Archbishop and Martyr, and of all martyrs, of blessedEdward of England, and of all Confessors and virgins, andof all the saints of heaven: We excommunicate, accurse, andfrom the thresholds (liminibus) of our Holy Mother the ChurchrWe sequester, all those that hereafter willingly and maliciouslydeprive or spoil the Church of her right: And all those that byany craft or wiliness do violate, break, diminish, or change theChurch's Liberties, or the ancient approved customs of theRealm, and especially the Liberties and free Customs con-tained in the Charters of the Common Liberties, and of theForest, conceded by our Lord the King, to Archbishops, Bish-ops, and other Prelates of England; and likewise to the EarlsrBarons, Knights, and other Freeholders of the Realm: Andall that secretly, or openly, by deed, word, or counsel, do makestatutes, or observe them being made, and that bring in Cus-toms, or keep them when they be brought in, against the said

AUTHORITY OF MA<SNA CARTA. 3 9 5

Liberties, or any of them, the Writers and Counsellors of saidstatutes, and the Executors of them, and all those that shallpresume to judge according to them. All and every whichpersons before mentioned, that wittingly shall commit any-thing of the premises, let them well know that they incur theaforesaid sentence, ipso facto, (i. e.. upon the deed beingdone.) And those that ignorautly do so, and be admonished,except they reform themselves within fifteen days after thetime of the admonition, arid make full satisfaction for thatthey have done, at the will of the ordinary, shall be from thatlime forth included in the same sentence. And with the samesentence we burden all those that presume to perturb thejpeace of our sovereign Lord the King, and of the Realm. Tothe perpetual memory of which thing, We, the aforesaid Pre-lates, have put our seals to these presents." — Statutes of theRealm, vol, 1, p. 6. Ruff heads Statutes, vol. 1, p. 20.

One of the Confirmations of the Charters, by Edward I.,was by statute, in the 25th year of his reign, (1297,) in thefollowing terms. The statute is usually entitled " ConjirmatioCartarum" (Confirmation of the Charters.)

Ch. 1. " Edward, by the Grace of God, King of England,Lord of Ireland, and Duke of Guyan, To all those that thesepresents shall hear or see, Greeting. Know ye, that We, toihe honor of God, and of Holy Church, and to the profit ofour Realm, have granted, for us and our heirs, that the Char-ier of Liberties, and the Charter of the Forest, which weremade by common assent of all the Realm, in the time of KingHenry our Father, shall be kept in every point without breach.And we will that the same Charters shall be sent under ourseal, as well to our justices of the Forest, as to others, and toall Sheriffs of shires, and to all our other officers, and to all ourcities throughout the Realm, together with our writs, in thewhich it shall be contained, that they cause the aforesaid Char-ters to be published, and to declare to the people that We haveconfirmed them at all points; and to our Justices, Sheriffs,.Mayors, and other ministers, which under us have the Lawsof our Land to guide, that they allow the same Charters, inall their points, in pleas before them, and in judgment; thatas, to wit, the Great Charter as the Common Law. and theCharter of the Forest for the wealth of our Realm.

Cfi. 2. "And we will that if any judgment be given fromhenceforth contrary to the points of the charters aforesaid bythe justices, or by any others our ministers that hold pleabefore them, against the points of the Charters, it shall beundone and holden for naught.

196 TRIAL BY JURY.

Ch. 3. "And we will, that the same Charters shall he sent,under our seal, to Cathedral Churches throughout our Realm,there to remain, and shall he read before the people two timesin the year.

Ch. 4. "And that all Archbishops and Bishops shall pro-nounce the sentence of excommunication against all those thaiby word, deed, or counsel, do contrary to the foresaid char-ters, or that in any point break or undo them. And that thesaid Curses be twice a year denounced and published by theprelates aforesaid. And if the same prelates, or any of them,be remiss in the denunciation of the said sentences, the Arch-bishops of Canterbury and York, for the time being, shallcompel and distrain them to make the denunciation in theform aforesaid." — St. 25 Edward /., (1297.) Statutes of theRealm, vol. 1, p. 123.

It is unnecessary to repeat the tenns of the various confirm-ations, most of which weFe less formal than those that havebeen given, though of course equally authoritative. Most ofthem are brief, and in the form of a simple statute, or prom-ise, to the effect that " The Great Charter, and the Charter ofthe Forest, shall be firmly kept and maintained in all points."They are to be found printed with the other statutes of therealm. One of them, after having " again granted, renewedand confirmed" the charters, requires as follows:

" That the Charters be delivered to every sheriff of Englandunder the king's seal, to he read four times in the year beforethe people in the full county," (that is, at the county court,)" that is, to wit, the next county (court) after the feast of SaintMichael, and the next county (court) after Christmas, and atthe next county (court) after Easter, and at the next county(court) after the feast of Saint John." — 28 Edward /., ch. 1,(1300.)

Lingard says, "The Charter was ratified fonr times byHenry III., twice by Edward I., fifteen times by Edward III.,seven times by Richard II., six times by Henry IV., and onceby Henry V.;" making thirty-five times in all. — 3 Lxngardy50, note, Philad. ed.

Coke says Magna Carta was confirmed thirty-two times. —Preface to 2 InsL, p. 6.

Lingard calls these "thirty-five successive ratifications" ofthe charter, " a sufficient proof how much its provisions were

AUTHORITY OF MAGNA CARTA, 197

abhorred by the sovereign, and how highly they were prizedby the nation." — 3 Ldng-ard, 50.

Mackintosh says, "For almost five centuries (that is, until1688) it (Magna Carta) was appealed to as the decisive au-thority on behalf of the people, though commonly so far onlyas the necessities of each case demanded." — Mackintosh'sHist, of Eng. ch. 3. 45 Lardner's Cab. Cyc, 221.

Coke, who has labored so hard to overthrow the most vitalprinciples of Magna Carta, and who, therefore, ought to be con-sidered good authority when he speaks in its favor,* says :

" It is called Magna Carta, not that it is great in quantity,for there be many voluminous charters commonly passed, spec-ially in these later times, longer than this is; nor compara-tively in respect that it is greater than Ckarta de Foresta, butin respect of the great importance and weightiness of the mat-ter, as hereafter shall appear; and likewise for the same causeCharta de Foresta; and both of them are called Magnce Char-ice Libertatum Anglia, (The Great Charters of the Libertiesof England.) . .

" And it is also called Charta Libertatvm regni, (Charterof the Liberties of the kingdom;) and upon great reason it isso called of the effect, quialiberos facit, (because it makes menfree.) Sometime for the same cause (it is called) oommunisiibertas, (common liberty,) and le chartre des franchises, (thecharter of franchises.) . .

"It was for the most part declaratory of the principalgrounds of the fundamental laws of England, and for the res-idue it is additional to supply some defects of the commonlaw. . .

"Also,by the said act of 25 Edward I., (called ConfirmatioChartarum,) it is adjudged in parliament that the Great Char-ter and the Charter of the Forest shall be taken as the commoulaw. . .

"They (Magna Carta and Carta de Foresta) were, for themost part, but declarations of the ancient common laws ofEngland, to the observation and keeping whereof, the kingwas bound and sworn.

" After the making of Magna Charta, and Charta de For-esta, divers learned men in the laws, that I may use the wordsof the record, kept schools of the law in the city of London,and taught such as resorted to them the laws of the realm,

• He probably speaks in its favor only to blind the eyes of the people to the fraudshe has attempted upon its true meaning.

17*

198 TRIAL BY JURY.

taking their foundation of Magna Charta and Charta de Foiesta.

" And the said two charters have been confirmed, estab-lished, and commanded to be put in execution by thirty-twoseveral acts of parliament in all.

" This appeareth partly by that which hath been said, forthat it hath so often been confirmed by the wise providence ofso many acts of parliament.

" And albeit judgments in the king's courts are of highregard in law, and judicia (judgments) are accounted as juris-dicta, (the speech of the law itself,) yet it is provided by actof parliament, that if any judgment be given contrary to anyof the points of the Great Charter and Charta de Foresta, bythe justices, or by any other of the king's ministers, &c., itshall be undone, and holden for naught.

" And that both the said charters shall be sent under thegreat seal to all cathedral churches throughout the realm, thereto remain, and shall be read to the people twice every year.

" The highest and most binding laws are the statutes whichare established by parliament; and by authority of that high-est court it is enacted (only to show their tender care of MagnaCarta and Carta de Foresta) that if any statute be made con-trary to the Great Charter, or the Charter of the Forest, thatshall be holden for none; by which words all former statutesmade against either of those charters are now repealed ; andthe nobles and great officers were to be sworn to the observa-tion of Magna Charta and Charta de Foresta.

"Magna fait quondam magnce reverentia charted" (Greatwas formerly the reverence for Magna Carta.) — Coke'sProem to 2 Inst., p. 1 to 7.

Coke also says, " All pretence of prerogative against MagnaCharta is taken away." — 2 Inst., 36.

He also says, "That after this parliament (52 Henry III.,in 1267) neither Magna Carta nor Carta de Foresta was everattempted to be impugned or questioned."—2 List., 102.*

* It will be noticed that Coke calls these confirmations of the charter « aots of par-liament," instead of acts of the king alone. This needs explanation.

It was one of Coke's ridiculous pretences, that laws anciently enacted by the king, atthe request, or with the consent, or by the advice, of his parliament, was " an act of par-liament," instead of the act of the king. And in the extracts cited, he carries thisidea so far as to pretend that the various confirmations of the Great Charter were"acts of parliament," instead of the acts of the kings. He might as well have pre-tended that the original grant of the Charter was an " act of parliament;" because itwas not only granted at the request, and with the consent, and by the advice, but onthe compulsion even, of those who oommonly constituted bis parliaments. Yet this did


To give all the evidence of the authority of Magna Carta, itwould be necessary to give the constitutional history of Englandsince the year 1215. This history would show that Magna Carta,although continually violated and evaded, was still acknowl-

not make the grant of the charter " an act of parliament." It was simply an act of theking.

The object of Coke, in this pretence, was to furnish some color for the palpable false-hood that the legislative authority, which parliament was trying to assume in his ownday, and which it finally succeeded in obtaining, had a precedent in the ancient consti-tution of the kingdom.

There would be as much reason in saying that, because the ancient kings were in thehabit of passing laws in special answer to the petitions of their subjects, therefore thosepetitioners were a part of the legislative power of the kingdom.

One great objection to this argument of Coke, for the legislative authority of theancient parliaments, is that a very large — probably much the larger — number of leg-islative acts were done without the advice, consent, request, or even presence, of a par-liament. Not only were many formal statutes passed without any mention of theconsent or advice of parliament, but a simple order of the king in council, or a simpleproclamation, writ, or letter under seal, issued by his command, had the same force aswhat Coke calls " an act of parliament." And this practice continued, to a considera-ble extent at least, down to Coke's own time.

The kings were always in the habit of consulting their parliaments, more or less, inregard to matters of legislation, — not because their consent was constitutionally nec-essary, but in order to make influence in favor of their laws, and thus induce the peo-ple to observe them, and the juries to enforce them.

The general duties of the ancient parliaments were not legislative, but judicial, aswill be shown more fully hereafter. The people were not represented in the parliamentsat the time of Magna Carta, but only the archbishops, bishops, earls, barons, andknights; so that little or nothing would have been gained for liberty by Coke's ideathat parliament had a legislative power. He would only have substituted an aristoc-racy for a king. Even after the Commons were represented in parliament, they forsome centuries appeared only as petitioners, except in the matter of taxation, when theirconsent was asked. And almost the only source of their influence on legislation wasthis : that they would sometimes refuse their consent to the taxation, unless the kingwould pass such laws as they petitioned for; or, as would seem to have been muchmore frequently the case, unless he would abolish such laws and practices as theyremonstrated against.

The influence or power of parliament, and especially of the Commons, in the generallegislation of the country, was a thing of slow growth, having its origin in a device ofthe king to get money contrary to law, (as will be seen in the next volume,) and not atall a part of the constitution of the kingdom, nor having its foundation in the consentof the people. The power, as at present exercised, was not fully established until 1688,(near five hundred years after Magna Carta,) when the House of Commons (falsely socalled) had acquired such influence as the representative, not of the people, but of thewealth, of the nation, that they compelled the king to discard the oath fixed by theconstitution of the kingdom; (which oath has been already given in a former chapter,*and was, in substance, to preserve and execute the Common Law, the Law of the Land,

•See page 101.


edged as law by the government, and was held up by the peo-ple as the great standard and proof of their rights and liber-

— or, in the words of the oath, " the just laws and customs which the common people hadchosen;") and to swear that he would " govern the people of this kingdom of England,and the dominions thereto belonging, according to the statutes in parliament agreed on,and the laws and customs of the same."*

The passage and enforcement of this statute, and the assumption of this oath by theking, were plain violations of the English constitution, inasmuch as they abolished, sofar as such an oath could abolish, the legislative power of the king, and also " thosejust laws and customs which the common people (through their juries) had chosen,"and substituted the will of parliament in their stead.

Coke was a great advocate for the legislative power of parliament, as a means ofrestraining the power of the king. As he denied all power to juries to decide upon theobligation of laws, and as he held that the legislative power was " so transcendent andabsolute as (that) it cannot be confined, either for causes or persons, within any bounds,'* fhe was perhaps honest in holding that it was safer to trust this terrific power in thehands of parliament, than in the hands of the king. His error consisted in holdingthat either the king or parliament had any such power, or that they had any power atall to pass laws that should be binding upon a jury.

These declarations of Coke, that the charter was confirmed by thirty-two " acts ofparliament," have a mischievous bearing in another respect*. They tend to weaken theauthority of the charter, by conveying the impression that the charter itself might beabolished by "act of parliament." Coke himself admits that it could not be revokedor rescinded by the king; for he says, " All pretence of prerogative against MagnaCarta is taken away." (2 Inst., 36.)

He knew perfectly well, and the whole English nation knew, that the king could notlawfully infringe Magna Carta. Magna Carta, therefore, made it impossible that abso-lute power could ever be practically established in England, in the hands of the king.Hence, as Cuke was an advocate for absolute power, — that is, for a legislative power" so transcendent and absolute as (that) it cannot be confined, either for causes or per-sons, within any bounds," — there was no alternative for him but to vest this absolutepower in parliament. Had he not vested it in parliament, he would have been obligedto abjure it altogether, and to confess that the people, through their juries, had the rightto judge of the obligation of all legislation whatsoever; in other words, that they hadthe right to confine the government within the limits of " those just laws and customswhich the common people (acting as jurors) had chosen." True to his instincts, as ajudge, and as a tyrant, he assumed that this absolute power was vested in the hands ofparliament.

But the truth was that, as by the English constitution parliament had no authorityat all for general legislation, it could no more confirm, than it could abolish, MagnaCarta.

These thirty-two confirmations of Magna Carta, which Coke speaks of as " acts ofparliament," were merely acts of the king. The parliaments, indeed, by refusing togrant him money, except on that condition, and otherwise, had contributed to obligehim to make the confirmations; just as they had helped to oblige him by arms to grantthe charter in the first place. But the confirmations themselves were nevertheless con-stitution ally, as well as formally, the acts of the king alone.

• St. 1 William and Mary, ch. 6, QMS.) 14 Inst., 80.


ties. It would show also that the judicial tribunals, wheneverit suited their purposes to do so, were in the habit of referringto Magna Carta as authority, in the same manner, and withthe same real or pretended veneration, with which Americancourts now refer to the constitution of the United States, orthe constitutions of the states. And, what is equally to thepoint, it would show that these same tribunals, the mere toolsof kings and parliaments, would resort to the same artifices ofassumption, precedent, construction, and false interpretation, toevade the requirements of Magna Carta, and to emasculate itof all its power for the preservation of liberty, that are resortedto by American courts to accomplish the same work on ourAmerican constitutions.

I take it for granted, therefore, that if the authority ofMagna Carta had rested simply upon its character as a com-pact between the king and the people, it would have been for-ever binding upon the king, (that is, upon the government, forthe king was the government,) in his legislative, judicial, andexecutive character; and that there was no constitutional pos-sibility of his escaping from its restraints, unless the peoplethemselves should freely discharge him from them.

But the authority of Magna Carta does not rest, eitherwholly or mainly, upon its character as a compact. For cen-turies before the charter was granted, its main principles con-stituted "the Law of the Land," — the fundamental andconstitutional law of the realm, which the kings were swornto maintain. And the principal benefit of the charter was,that it contained a written description and acknowledgment, bythe king himself, of what the constitutional law of the king-dom was, which his coronation oath bound him to observe.Previous to Magna Carta, this constitutional law rested mainlyin precedents, customs, and the memories of the people. Andif the king could but make one innovation upon this law,without arousing resistance, and being compelled to retreatfrom his usurpation, he would cite that innovation as a prece-dent for another act of the same kind; next, assert a custom;and, finally, raise a controversy as to what the Law of theLand really was. The great object of the barons and people,in demanding from the king a written description and ac-


knowledgment of the Law of the Land, was to put an end toall disputes of this kind, and to put it out of the power of theking to plead any misunderstanding of the constitutional lawof the kingdom. And the charter, no doubt, accomplished very-much in this way. After Magna Carta, it required much moreaudacity, cunning, or strength, on the part of the king, than ithad before, to invade the people's liberties with impunity.Still, Magna Carta, like all other written constitutions, provedinadequate to the full accomplishment of its purpose; for whendid a parchment ever have power adequately to restrain a gov-ernment, that had either cunning to evade its requirements, orstrength to overcome those who attempted its defence? Thework of usurpation, therefore, though seriously checked, stillwent on, to a great extent, after Magna Carta. Innovationsupon the Law of the Land are still made by the government.One innovation was cited as a precedent; precedents madecustoms; and customs became laws, so far as practice wasconcerned; until the government, composed of the king, thehigh functionaries of the church, the nobility, a House of Com-mons representing the "forty shilling freeholders," and adependent and servile judiciary, all acting in conspiracyagainst the mass of the people, became practically absolute,as it is at this day.

As proof that Magna Carta embraced little else than whatwas previously recognized as the common law, or Law of theLand, I repeat some authorities that have been already cited.

Crabbe says, " It is admitted on all hands that it (MagnaCarta) contains nothing but what was confirmatory of thecommon law and the ancient usages of the realm; and is,properly speaking, only an enlargement of the charter ofHenry I. and his successors." — Crabbers Hist, of the Eng.Law, p. 127.

Blackstone says, " I t is agreed by all our historians that theGreat Charter of King John was, for the most part, compiledfrom the ancient customs of the realm, or the laws of Edwardthe Confessor; by which they mean the old common lawwhich was established under our Saxon princes." — Black-stone's Introd. to the Charters. See Blackstone's Law Tracts,Oxford ed., p. 289..

Coke says, " The common law is the most general and an-


cient law of the realm. . . The common law appeareth inthe statute of Magna Carta, and other ancient statutes, (whichfor the most part are affirmations of the common law,) in theoriginal writs, in judicial records, and in our books of termsand years." — 1 Inst., 115 b.

Coke also says, " I t (Magna Carta) was for the most partdeclaratory of the principal grounds of the fundamental lawsof England, and for the residue it was additional to supplysome defects of the common law. . . They (Magna Cartaand Carta de Foresta) were, for the most part, but declara-tions of the ancient common laws of England, to the observationand keeping-whereof the king was bound and sworn" — Pref-ace to 2 Inst., p. 3 and 5.

Hume says, " We may now, from the tenor of this charter,(Magna Carta,) conjecture what those laws were of KingEdward, (the Confessor,) which the English nation duringso many generations still desired, with such an obstinate per-severance, to have recalled and established. They werechiefly these latter articles of Magna Carta; and the baronswho, at the beginning of these commotions, demanded therevival of the Saxon laws, undoubtedly thought that they hadsufficiently satisfied the people, by procuring them this conces-sion, which comprehended the principal objects to which theyhad so long aspired."— Hume, ch. 11.

Edward the First confessed that the Great Charter was sub-stantially identical with the common law, as far as it went,when he commanded his justices to allow " the Great Charteras the Common Law," <'in pleas before them, and in judg-ment," as has been already cited in this chapter. —25 EdwardI., ch. 1, (1297.)

In conclusion of this chapter, it may be safely asserted thatthe veneration, attachment, and pride, which the English na-tion, for more than six centuries, have felt towards MagnaCarta, are in their nature among the most irrefragable of allproofs that it was the fundamental law of the land, and con-stitutionally binding upon the government; for, otherwise, itwould have been, in their eyes, an unimportant and worthlessthing. What those sentiments were I will use the words ofothers to describe, — the words, too, of men, who, like all mod-ern authors who have written on the same topic, had utterlyinadequate ideas of the true character of the instrument onwhich they lavished their eulogiums.


Hume, speaking of the Great Charter and the Charter of theForest, as they were confirmed by Henry III., in 1217, says:

" Thus these famous charters were brought nearly to theshape in which they have ever since stood; and they were,during many generations, the peculiar favorites of the Englishnation, and esteemed the most sacred rampart to national lib-erty and independence. As they secured the rights of allorders of men, they were anxiously defended by all, and be-came the basis, in a manner, of the English monarchy, and akind of original contract, which both limited the authority ofthe king and ensured the conditional allegiance of his subjects.Though often violated, they were still claimed by the nobilityand people; and, as no precedents were supposed valid thatinfringed them, they rather acquired than lost authority, fromthe frequent attempts made against them in several ages, byregal and arbitrary power." — Hume, ch. 12.

Mackintosh says, " It was understood by the simplest of theunlettered age for whom it was intended. It was rememberedby them. . . For almost five centuries it was appealed toas the decisive authority on behalf of the people. . . Tohave produced it, to have preserved it, to have matured it,constitute the immortal claim of England on the esteem ofmankind. Her Bacons and Shakspeares, her Miltons andNewtons, with all the truth which they have revealed, andall the generous virtues which they have inspired, are of infe-rior value when compared with the subjection of men andtheir rulers to the principles of justice; if, indeed, it be notmore true that these mighty spirits could not have been formedexcept under equal laws, nor roused to full activity withoutthe influence of that spirit which the Great Charter breathedover their forefathers." — Mackintosh's Hist, of Eng., ch. 3.*

Of the Great Charter, the trial by jury is the vital part, andthe only part that places the liberties of the people in theirown keeping. Of this Blackstone says:

" The trial by jury, or the country, per patriam, is also thattrial by the peers of every Englishman, which, as the grandbulwark of his liberties, is secured to him by the Great Char-ter ; nullus liber homo capiatur, vel imprisonetur, aut exuletur,aut aliquo modo deslruatur, nisi per legate judicium pariumsuorum, vel per legem ierrae. . .

The liberties of England cannot but subsist so long as thispalladium remains sacred and inviolate, not only from all

• Under the head of « John,**

AUTHORITY OF MAGNA CARTA. 2 0 5

open attacks, which none will be so hardy as to make, butalso from all secret machinations which may sap and under-mine it." *

" The trial by jury ever has been, and I trust ever will be,looked upon as the glory of the English law. . . It is themost transcendent privilege which any subject can enjoy orwish for, that he cannot be affected in his property, his lib-erty, or his person, but by the unanimous consent of twelve ofhis neighbors and equals." f

Hume calls the trial by jury " An institution admirable initself, and the best calculated for the preservation of libertyand the administration of justice, that ever was devised by thewit of man." %

An old book, called "English Liberties," says:

" English Parliaments have all along been most zealous forpreserving this great Jewel of Liberty, trials by juries havingno less than fifty-eight several times, since the Norman Con-quest, been established and confirmed by the legislative power,no one privilege besides having been ever so often rememberedin parliament." $

* 4 Blackstone, 349-50. f 3 Blackstone, 379. % Hume, ch. 2.

§ Page 203, 5th edition, 1721.

18

CHAPTER XII.

LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BYJURY.

THE principal objection, that will be made to the doctrine ofthis essay, is, that under it, a jury would paralyze the powerof the majority, and veto all legislation that was not inaccordance with the will of the whole, or nearly the whole,people.

The answer to this objection is, that the limitation, whichwould be thus imposed upon the legislative power, (whetherthat power be vested in the majority, or minority, of the peo-ple,) is the crowning merit of the trial by jury. It has othermerits; but, though important in themselves, they are utterlyinsignificant and worthless in comparison with this.

It is this power of vetoing all partial and oppressive legis-lation, and of restricting the government to the maintenanceof such laws as the whole, or substantially the whole, peopleare agreed in, that makes the trial by jury " the palladium ofliberty." Without this power it would never have deservedthat name.

The will, or the pretended will, of the majority, is the lastlurking place of tyranny at the present day. The dogma, thatcertain individuals and families have a divine appointment togovern the rest of mankind, is fast giving place to the one thatthe larger number have a right to govern the smaller; adogma, which may, or may not, be less oppressive in its prac-tical operation, but which certainly is no less false or tyranni-cal in principle, than the one it is so rapidly supplanting.Obviously there is nothing in the nature of majorities, thatinsures justice at their hands. They have the same passionsas minorities, and they have no qualities whatever that shouldbe expected to prevent them from practising the same tyranny

LIMITATIONS UPON THE MAJORITY. 207

as minorities, if they think it will be for their interest todo so.

There is no particle of truth in th£ notion that the majority-have a right to rule, or to exercise arbitrary power over, theminority, simply because the former are more numerous thanthe latter. Two men have no more natural right to rule one,than one has to rule two. Any single man, or any body offnen, many or few, have a natural right to maintain justicefor themselves, and for any others who may need their assist-ance, against the injustice of any and all other men, withoutregard to their numbers; and majorities have no right to doany more than this. The relative uumbers of the opposingparties have nothing to do with the question of right. Andno more tyrannical principle was ever avowed, than that thewill of the majority ought to have the force of law, withoutregard to its justice; or, what is the same thing, that the willof the majority ought always to be presumed to be in accord-ance with justice. Such a doctrine is only another form ofthe doctrine that might makes right.

When two men meet one upon the highway, or in the wil-derness, have they a right to dispose of his life, liberty, orproperty at their pleasure, simply because they are the morenumerous party? Or is he bound to submit to lose his life,liberty, or property, if they demand it, merely because he isthe less numerous party? Or, because they are more numer-ous than he, is he bound to presume that they are governedonly by superior wisdom, and the principles of justice, and byno selfish passion that can lead them to do him a wrong?Yet this is the principle, which it is claimed should governmen in all their civil relations to each other. Mankind fall incompany with each other on the highway or in the wildernessof life, and it is claimed that the more numerous party, simplyby virtue of their superior numbers, have the right arbitrarilyto dispose of the life, liberty, and property of the minority; andthat the minority are bound, by reason of their inferior num-bers, to practise abject submission, and consent to hold theirnatural rights,— any, all, or none, as the case may be,— atthe mere will and pleasure of the majority; as if all a man'stiatural rights expired, or were suspended by the operation of

208 TRIAL BY JURY.

a paramount law, the moment he came into the presence ofsuperior numbers.

If such be the true nature of the relations men hold to eachother in this world, it puts an end to all such things as crimes^unless they be perpetrated upon those who are equal or supe-rior, in number, to the actors. All acts committed againstpersons inferior in number to the aggressors, become but theexercise of rightful authority. And consistency with theirown principles requires that all governments, founded on thewill of the majority, should recognize this plea as a sufficientjustification for all crimes whatsoever.

If it be said that the majority should be allowed to rule, notbecause they are stronger than the minority, but because theirsuperior numbers furnish a probability that they are in theright; one answer is, that the lives, liberties, and properties ofmen are too valuable to them, and the natural presumptionsare too strong in their favor, to justify the destruction of themby their fellow-men on a mere balancing of probabilities, or onany ground whatever short of certainty beyond a reasonabledoubt. This last is the moral rule universally recognized tobe binding upon single individuals. And in the forum of con-science the same rule is equally binding upon governments,for governments are mere associations of individuals. This isthe rule on which the trial by jury is based. And it is plainlythe only rule that ought to induce a man to submit his rightsto the adjudication of his fellow-men, or dissuade him from aforcible defence of them.

Another answer is, that if two opposing parties could besupposed to have no personal interests or passions involved, towarp their judgments, or corrupt their motives, the fact thatone of the parties was more numerous than the other, (a factthat leaves the comparative intellectual competency of the twoparties entirely out of consideration,) might, perhaps, furnisha slight, but at best only a very slight, probability that suchparty was on the side of justice. But when it is consideredthat the parties are liable to differ in their intellectual capaci-ties, and that one, or the other, or both, are undoubtedly underthe influence of such passions as rivalry, hatred, avarice, andambition,— passions that are nearly certain to pervert their


judgments, and very likely to corrupt their motives,— allprobabilities founded upon a mere numerical majority, in oneparty, or the other, vanish at once; and the decision of themajority becomes, to all practical purposes, a mere decision ofchance. And to dispose of men's properties, liberties, andlives, by the mere process of enumerating such parties, is notonly as palpable gambling as was ever practised, but it is alsothe most atrocious that was ever practised, except in mattersof government. And where government is instituted on thisprinciple, (as in the United States, for example,) the nation isat once converted into one great gambling establishment;where all the rights of men are the stakes; a few bold badmen throw the dice—(dice loaded with all the hopes, fears,interests, and passions which rage in the breasts of ambitiousand desperate men,)—and all the people, from the intereststhey have depending, become enlisted, excited, agitated, andgenerally corrupted, by the hazards of the game.

The trial by jury disavows the majority principle altogether;and proceeds upon the ground that every man should be pre-sumed to be entitled to life, liberty, and such property as hehas in his possession; and that the government should lay itshand upon none of them, (except for the purpose of bringingthem before a tribunal for adjudication,) unless it be firstascertained, beyond a reasonable doubt, in every individualcase, that justice requires it.

To ascertain whether there be such reasonable doubt, ittakes twelve men by lot from the whole body of mature men.If any of these twelve are proved to be under the influence ofany special interest or passion, that may either pervert theirjudgments, or corrupt their motives, they are set aside asunsuitable for the performance of a duty requiring such abso-lute impartiality and integrity; and others substituted in theirstead. When the utmost practicable impartiality is attainedon the part of the whole twelve, they are sworn to the observ-ance of justice; and their unanimous concurrence is then heldto be necessary to remove that reasonable doubt, which, unre-moved, would forbid the government to lay its hand on itsvictim.

Such is the caution which the trial by jury both practises18*


and inculcates, against the violation of justice, on the part ofthe government, towards -the humblest individual, in thesmallest matter affecting his civil rights, his property, liberty,or life. And such is the contrast, which the trial by jury pre-sents, to that gambler's and robber's rule, that the majorityhave a right, by virtue of their superior numbers, and withoutregard to justice, to dispose at pleasure of the property andpersons of all bodies of men less numerous than themselves.

The difference, in short, between the two systems, is this.The trial by jury protects person and property, inviolate totheir possessors, from the hand of the law, unless justice,beyond a reasonable doubt, require them to be taken. Themajority principle takes person and property from their pos-sessors, at the mere arbitrary will of a majority, who areliable and likely to be influenced, in taking them, by motivesof oppression, avarice, and ambition.

If the relative numbers of opposing parties afforded suffi-cient evidence of the comparative justice of their claims, thegovernment should carry the principle into its courts of justice;and instead of referring controversies to impartial and disin-terested men,— to judges and jurors, sworn to do justice, andbound patiently to hear and weigh all the evidence and argu-ments that can be offered on either side,— it should simplycount the plaintiffs and defendants in each case, (where therewere more than one of either,) and then give the case to themajority; after ample opportunity had been given to the plain-tiffs and defendants to reason with, flatter, cheat, threaten, andbribe each other, by way of inducing them to change sides.Such a process would be just as rational in courts of justice,as in halls of legislation; for it is of no importance to a man,who has his rights taken from him, whether it be done by alegislative enactment, or a judicial decision.

In legislation, the people are all arranged as plaintiffs anddefendants in their own causes; (those who are in favor of aparticular law, standing as plaintiffs, and those who areopposed to the same law, standing as defendants); and toallow these causes to be decided by majorities, is plainly asabsurd as it would be to allow judicial decisions to be deter-mined by the relative number of plaintiffs and defendants.

LIMITATIONS UPON THE MAJORITY. 2 1 1

If this mode of decision were introduced into courts of jus-tice, we should see a parallel, and only a parallel, to that sys-tem of legislation which we witness daily. We should seelarge bodies of men conspiring to bring perfectly groundlesssuits, against other bodies of men, for large sums of money, andto carry them by sheer force of numbers; just as we now con-tinually see large bodies of men conspiring to carry, by mereforce of numbers, some scheme of legislation that will, directlyor indirectly, take money out of other men's pockets, and putit into their own. And we should also see distinct bodies ofmen, parties in separate suits, combining and agreeing all toappear and be counted as plaintiffs or defendants in eachother's suits, for the purpose of ekeing out the necessarymajority; just as we now see distinct bodies of men, interestedin separate schemes of ambition or plunder, conspiring to carrythrough a batch of legislative enactments, that shall accomplishtheir several purposes.

This system of combination and conspiracy would go on,until at length whole states and a whole nation would becomedivided into two great litigating parties, each party composedof several smaller bodies, having their separate suits, but allconfederating for the purpose of making up the necessarymajority in each case. The individuals composing each ofthese two great parties, would at length become so accustomedto acting together, and so well acquainted with each others'schemes, and so mutually dependent upon each others' fidelityfor success, that they would become organized as permanentassociations; bound together by that kind of honor that pre-vails among thieves; and pledged by all their interests, sym-pathies, and animosities, to mutual fidelity, and to unceasinghostility to their opponents; and exerting all their arts andall their resources of threats, injuries, promises, and bribes, todrive or seduce from the other party enough to enable theirown to retain or acquire such a majority as would be neces-sary to gain their own suits, and defeat the suits of theiropponents. All the wealth and talent of the country wouldbecome enlisted in the service of these rival associations;and both would at length become so compact, so well organ-ized, so powerful, and yet always so much in need of recruits,


that a private person would be nearly or quite unable toobtain justice in the most paltry suit with his neighbor, excepton the condition of joining one of these great litigating associ-ations, who would agree to carry through his cause, on con-dition of his assisting them to carry through all the others,good and bad, which they had already undertaken. If herefused this, they would threaten to make a similar offer tohis antagonist, and suffer their whole numbers to be countedagainst him.

Now this picture is no caricature, but a true and honestlikeness. And such a system of administering justice, wouldbe no more false, absurd, or atrocious, than that system ofworking by majorities, which seeks to accomplish, by legisla-tion, the same ends which, in the case supposed, would beaccomplished by judicial decisions.

Again, the doctrine that the minority ought to submit tothe will of the majority, proceeds, not upon the principle thatgovernment is formed by voluntary association, and for anagreed purpose, on the part of all who contribute to its sup-port, but upon the presumption that all government must bepractically a state of war and plunder between opposing par-ties; and that, in order to save blood, and prevent mutualextermination, the parties come to an agreement that they willcount their respective numbers periodically, and the one partyshall then be permitted quietly to rule and plunder, (restrainedonly by their own discretion,) and the other submit quietlyto be ruled and plundered, until the time of the next enumer-ation.

Such an agreement may possibly be wiser than unceasingand deadly conflict; it nevertheless partakes too much of theludicrous to deserve to be seriously considered as an expedientfor the maintenance of civil society. It would certainly seemthat mankind might agree upon a cessation of hostilities, uponmore rational and equitable terms than that of unconditionalsubmission on the part of the less numerous body. Uncondi-tional submission is usually the last act of one who confesseshimself subdued and enslaved. How any one ever came toimagine that condition to be one of freedom, has never beenexplained. And as for the system being adapted to the main-

LIMITATIONS UrON THE MAJORITY. 213

tenance of justice among men, it is a mystery that any humanmind could ever have been visited with an insanity wildenough to originate the idea.

If it be said that other corporations, than governments, sur-render their affairs into the hands of the majority, the answeris, that they allow majorities to determine only trifling mat-ters, that are in their nature mere questions of discretion, andwhere there is no natural presumption of justice or right onone side rather than the other. They never surrender to themajority the power to dispose of, or, what is practically thesame thing, to determine, the rights of any individual member.The rights of every member are determined by the writtencompact, to which all the members have voluntarily agreed.

For example. A banking corporation allows a majority todetermine such questions of discretion as whether the note ofA or of B shall be discounted; whether notes shall be dis-counted on one, two, or six days in the week ; how manyhours in a day their banking-house shall be kept open ; howmany clerks shall be employed; what salaries they shallreceive, and such like matters, which are in their nature meresubjects of discretion, and where there are no natural presump-tions of justice or right in favor of one course over the other.But no banking corporation allows a majority, or any othernumber of its members less than the whole, to divert the fundsof the corporation to any other purpose than the one to whichevery member of the corporation has legally agreed that iheymay be devoted; nor to take the stock of one member andgive it to another; nor to distribute the dividends among thestockholders otherwise than to each one the proportion whichhe has agreed to accept, and all the others have agreed thathe shall receive. Nor does any banking corporation allow amajority to impose taxes upon the members for the paymentof the corporate expenses, except in such proportions asevery member has consented that they may be imposed. Allthese questions, involving the rights of the members as againsteach other, are fixed by the articles of the association,— thatis, by the agreement to which every member has personallyassented.

What is also specially to be noticed, and what constitutes a


vital difference between the banking corporation and the polit-ical corporation, or government, is, that in case of controversyamong the members of the banking corporation, as to therights of any member, the question is determined, not by anynumber, either majority, or minority, of the corporation itself,but by persons out of the corporation ; by twelve men acting'asjurors, or by other tribunals of justice, of which no memberof the corporation is allowed to be a part. But in the case ofthe political corporation, controversies among the parties to it,as to the rights of individual members, must of necessity besettled by members of the corporation itself, because there areno persons out of the corporation to whom the question can bereferred.

Since, then, all questions as to the rights of the members ofthe political corporation, must be determined by members ofthe corporation itself, the trial by jury says that no man'srights,— neither his right to his life, his liberty, nor his prop-erty,— shall be determined by any such standard as the merewill and pleasure of majorities; but only by the unanimousverdict of a tribunal fairly representing the whole people,—that is, a tribunal of twelve men, taken at random from thewhole body, and ascertained to be as impartial as the natureof the case will admit, and sworn to the observance of justice.Such is the difference in the two kinds of corporations; andthe custom of managing by majorities the mere discretionarymatters of business corporations, (the majority having no powerto determine the rights of any member,) furnishes no analogyto the practice, adopted by political corporations, of disposingof all the rights of their members by the arbitrary will ofmajorities.

But further. The doctrine that the majority have a rightto rule, proceeds upon the principle that minorities have norights in the government; for certainly the minority cannotbe said to have any rights in a government, so long as themajority alone determine what their rights shall be. Theyhold everything, or nothing, as the case may be, at the merewill of the majority.

It is indispensable to a ufree government," (in the politicalsense of that term,) that the minority, the weaker party, have


a veto upon the acts of the majority. Political liberty is lib-erty for the weaker party in a nation. It is only the weakerparty that lose their liberties, when a government becomesoppressive. The stronger party, in all governments, are freeby virtue of their superior strength. They never oppressthemselves.

Legislation is the work of this stronger party; and if, inaddition to the sole power of legislating, they have the solepower of determining what legislation shall be enforced, theyhave all power in their hands, and the weaker party are thesubjects of an absolute government.

Unless the weaker party have a veto, either upon the mak-ing, or the enforcement of laws, they have no power whateverin the government, and can of course have no liberties exceptsuch as the stronger party, in their arbitrary discretion, see n'tto permit them to enjoy.

In England and the United States, the trial by jury is theonly institution that gives the weaker party any veto upon thepower of the stronger. Consequently it is the only institution,that gives them any effective voice in the government, or anyguaranty against oppression.

Suffrage, however free, is of no avail for this purpose;because the suffrage of the minority is overborne by the suf-frage of the majority, and is thus rendered powerless for pur-poses of legislation. The.responsibility of officers can be madeof no avail, because they are responsible only to the majority.The minority, therefore, are wholly without rights in the gov-ernment, wholly at the mercy of the majority, unless, throughthe trial by jury, they have a veto upon such legislation asthey think unjust.

Government is established for the protection of the weakagainst the strong. This is the principal, if not the sole,motive for the establishment of all legitimate government.Laws, that are sufficient for the protection of the weaker party,are of course sufficient for the protection of the stronger party jbecause the strong can certainly need no more protection thanthe weak. It is, therefore, right that the weaker party shouldbe represented in the tribunal which is finally to determinewhat legislation may be enforced; and that no legislation shall


be enforced against their consent. They being presumed tobe competent judges of what kind of legislation makes fortheir safety, and what for their injury, it must be presumedthat any legislation, which they object to enforcing, tends totheir oppression, and not to their security.

There is still another reason why the weaker party, or theminority, should have a veto upon all legislation which theydisapprove. That reason is, that that is the only means bywhich the government can be kept within the limits of the con-tract, compact, or co?istitution, by which the whole people agreeto establish government. If the majority were allowed tointerpret the compact for themselves, and enforce it accordingto their own interpretation, they would, of course, make itauthorize them to do whatever they wish to do.

The theory of free government is that it is formed by thevoluntary contract of the people individually with each other.This is the theory, (although it is not, as it ought to be, thefact,) in all the governments in the United States, as also inthe government of England. The theory assumes that eachman, who is a party to the government, and contributes to itssupport, has individually and freely consented to it. Other-wise the government would have no right to tax him for itssupport,— for taxation without consent is robbery. This the-ory, then, necessarily supposes that this government, which isformed by the free consent of all, has no powers except suchas all the parties to it have individually agreed that it shallhave; and especially that it has no power to pass any laws,except such as all the parties have agreed that it may pass.

This theory supposes that there may be certain laws thatwill be beneficial to all,— so beneficial that all consent to betaxed for their maintenance. For the maintenance of thesespecific laws, in which all are interested, all associate. Andthey associate for the maintenance of those laws only, in whichall are interested. It would be absurd to suppose that allwould associate, and consent to be taxed, for purposes whichwere beneficial only to a part; and especially for purposes thatwere injurious to any. A government of the whole, therefore,can have no powers except such as all the parties consent thatit may have. It can do nothing except what all have con-


sented that it may do. And if any portion of the people,— nomatter how large their number, if it be less than the whole,—desire a government for any purposes other than those thatare common to all, and desired by all, they must form a sep-arate association for those purposes. They have no right,—by perverting this government of the whole, to the accom-plishment of purposes desired only by a part,— to compel anyone to contribute to purposes that are either useless or injuri-ous to himself.

Such being the principles on which the government isformed, the question arises, how shall this government, whenformed, be kept within the limits of the contract by which itwas established ? How shall this government, instituted bythe whole people, agreed to by the whole people, supported bythe contributions of the whole people, be confined to theaccomplishment of those purposes alone, which the wholepeople desire ? How shall it be preserved from degenerating intoa mere government for the benefit of a part only of those whoestablished, and who support it? How shall it be preventedfrom even injuring a part of its own members, for the aggran-dizement of the rest? Its laws must be, (or at least noware,) passed, and most of its other acts performed, by mereagents.— agents chosen by a part of the people, and not bythe whole. How can these agents be restrained from seekingtheir own interests, and the interests of those who elected them,at the expense of the rights of the remainder of the people,by the passage and enforcement of laws that shall be partial,unequal, and unjust in their operation? That is the greatquestion. And the trial by jury answers it. And how doesthe trial by jury answer it? It answers it, as has alreadybeen shown throughout this volume, by saying that thesemere agents and attorneys, who are chosen by a part only ofthe people, and are liable to be influenced by partial andunequal purposes,-shall not have unlimited authority in theenactment and enforcement of laws; that they shall not exer-cise all the functions of government. It says that they shallnever exercise that ultimate power of compelling obedience tothe laws by punishing for disobedience, or of executing thelaws against the person or property of any man, without first

19


getting the consent of the people, through a tribunal that mayfairly be presumed to represent the whole, or substantiallythe whole, people. It says that if the power to make laws,and the power also to enforce them, were committed to theseagents, they would have all power,— would be absolutemasters of the people, and could deprive them of their rightsat pleasure. It says, therefore, that the people themselveswill hold a veto upon the enforcement of any and every law,which these agents may enact, and that whenever the occa-sion arises for them to give or withhold their consent,— inas-much as the whole people cannot assemble, or devote the timeand attention necessary to the investigation of each case,—twelve of their number shall be taken by lot, or otherwise atrandom, from the whole body; that they shall not be chosenby majorities, (the same majorities that elected the agents whoenacted the laws to be put in issue,) nor by any interested orsuspected party; that they shall not be appointed by, or be inany way dependent upon, those who enacted the law; thattheir opinions, whether for or against the law that is in issue,shall not be inquired of beforehand; and that if these twelvemen give their consent to the enforcement of the law, theirconsent shall stand for the consent of the whole.

This is the mode, which the trial by jury provides, for keep-ing the government within the limits designed by the wholepeople, who have associated for its establishment. And it isthe only mode, provided either by the English or Americanconstitutions, for the accomplishment of that object.

But it will, perhaps, be said that if the minority can defeatthe will of the majority, then the minority rule the majority.But this is not true in any unjust sense. The minority enactno laws of their own. They simply refuse their assent to suchlaws of the majority as they do not approve. The minorityassume no authority over the majority; they simply defendthemselves. They do not interfere with the right of themajority to seek their own happiness in their own way, solong as they (the majority) do not interfere with the minority.They claim simply not to be oppressed, and not to be com-pelled to assist in doing anything which they do not approve.They say to the majority, " We will unite with you, if you


desire it, for the accomplishment of all those purposes, inwhich we have a common interest with you. You can cer-tainly expect us to do nothing more. If you do not choose toassociate with us on those terms, there must be two separateassociations. You must associate for the accomplishment ofyour purposes; we for the accomplishment of ours."

In this case, the minority assume no authority over themajority; they simply refuse to surrender their own libertiesinto the hands of the majority. They propose a union; butdecline submission. The majority are still at liberty to refusethe connection, and to seek their own happiness in their ownway, except that they cannot be gratified in their desire tobecome absolute masters of the minority.

But, it may be asked, how can the minority be trusted toenforce even such legislation as is equal and just? Theanswer is, that they are as reliable for that purpose as are themajority; they are as much presumed to have associated, andare as likely to have associated, for that object, as are themajority; and they have as much interest in such legislationas have the majority. They have even more interest in it;for, being the weaker party, they must rely on it for theirsecurity, — having no other security on which they can rely.Hence their consent to the establishment of government, andto the taxation required for its support, is presumed, (althoughit ought not to be presumed,) without any express consentbeing given. This presumption of their consent to be taxedfor the maintenance of laws, would be absurd, if they couldnot themselves be trusted to act in good faith in enforcingthose laws. And hence they cannot be presumed to haveconsented to be taxed for the maintenance of any laws, exceptsuch as they are themselves ready to aid in enforcing. It istherefore unjust to tax them, unless they are eligible to seatsin a jury, with power to judge of the justice of the laws.Taxing them for the support of the laws, on the assumptionthat they are in favor of the laws, and at the same time refus-ing them the right, as jurors, to judge of the justice of thelaws, on the assumption that they are opposed to the laws, areflat contradictions.

But, it will be asked, what motive have the majority, when


they have all power in their own hands, to submit their willto the veto of the minority 1

One answer is, that they have the motive of justice. Itwould be unjust to compel the minority to contribute, by tax-ation, to the support of any laws which they did not approve.

Another answer is, that if the stronger party wish to usetheir power only for purposes of justice, they have no occasionto fear the veto of the weaker party; for the latter have asstrong motives for the maintenance of just government, ashave the former.

Another answer is, that if the stronger party use their powerunjustly, they will hold it by an uncertain tenure, especiallyin a community where knowledge is diffused; for knowledgewill enable the weaker party to make itself in time thestronger party. It also enables the weaker party, even whileit remains the weaker party, perpetually to annoy, alarm, andinjure their oppressors. Unjust power,— or rather power thatis grossly unjust, and that is known to be so by the minority,— can be sustained only at the expense of standing armies,and all the other machinery of force; for the oppressed partyare always ready to risk their lives for purposes of vengeance,and the acquisition of their rights, whenever there is any tol-erable chance of success. Peace, safety, and quiet for all, canbe enjoyed only under laws that obtain the consent of all.Hence tyrants frequently yield to the demands of justice fromthose weaker than themselves, as a means of buying peaceand safety.

Still another answer is, that those who are in the majorityon one law, will be in the minority on another. All, there-fore, need the benefit of the veto, at some time or other, toprotect themselves from injustice.

That the limits, within which legislation would, by thisprocess, be confined, would be exceedingly narrow, in com-parison with those it at present occupies, there can be nodoubt. All monopolies, all special privileges, all sumptuarylaws, all restraints upon any traffic, bargain, or contract, thatwas naturally lawful,* all restraints upon men's natural

* Such as restraints upon banking, upon the rates of interest, upon traffio with for-

eigners, A c , &o.


rights, the whole catalogue of mala prohibita, and all taxa-tion to which the taxed parties had not individually, severally,and freely consented, would be at an end; because all suchlegislation implies a violation of the rights of a greater or lessminority. This minority would disregard, trample upon, orresist, the execution of such legislation, and then throw them-selves upon a jury of the whole people for justification andprotection. In this way all legislation would be nullified,except the legislation of that general nature which impartiallyprotected the rights, and subserved the interests, of all. Theonly legislation that could be sustained, would probably besuch as tended directly to the maintenance of justice and lib-erty ; such, for example, as should contribute to the enforce-ment of contracts, the protection of property, and the preven-tion and punishment of acts intrinsically criminal. In short,government in practice would be brought to the necessity of astrict adherence to natural law, and natural justice, instead ofbeing, as it now is, a great battle, in which avarice and ambi-tion are constantly fighting for and obtaining advantages overthe natural rights of mankind.

19*

APPENDIX.

T A X A T I O N .

IT was a principle of the Common Law, as it is of the law of nature, and ofcommon sense, that no man can be taxed without his personal consent. TheCommon Law knew nothing of that system, which now prevails in England, ofassuming a man's own consent to be taxed, because some pretended representa-tive, whom he never authorized to act for him, has taken it upon himself toconsent that he may be taxed. That is one of the many frauds on the CommonLaw, and the English constitution, which have been introduced since MagnaCarta. Having finally established itself in England, it has been stupidly andservilely copied and submitted to in the United States.

If the trial by jury were reestablished, the Common Law principle of taxationwould be reestablished with i t ; for it is not to be supposed that juries wouldenforce a tax upon an individual which he had never agreed to pay. Taxationwithout consent is as plainly robbery, when enforced against one man, as whenenforced against millions.; and it is not to be imagined that juries could be blindto so self-evident a principle. Taking a man's money without his consent, is alsoas much robbery, when i t is done by millions of men, acting in concert, andcalling themselves a government, as when it is done by a single individual, act-ing on his own responsibility, and calling himself a highwayman. Neither thenumbers engaged in the act, nor the different characters they assume as a coverfor the act, alter the nature of the act itself.

If the government can take a man's money without his consent,.there is nolimit to the additional tyranny it may practise upon him ; for, with his money,it can hire soldiers to stand over him, keep him in subjection, plunder him atdiscretion, and kill him if he resists. And governments always will do this, asthey everywhere and always have done it, except where the Common Law prin-ciple has been established. It is therefore a first principle, a very sine qua nonof political freedom, that a man can be taxed only by his personal consent Andthe establishment of this principle, with trial by jury., insures freedom of course ;because : 1. No man would pay his money unless he had first contracted for sucha government as he was willing to support; and, 2. Unless the government thenkept itself within the terms of its contract, juries would not enforce the paymentof the tax. Besides, the agreement to be taxed would probably be entered intobut for a year at a time. If, in that year, the government proved itself eitherinefficient or tyrannical, to any serious degree, the contract would not be renewed.

APPENDIX. 2 2 3

The dissatisfied parties, if sufficiently numerous for a new organization, wouldform themselves into a separate association for mutual protection. If not suffi-ciently numerous for that purpose, those who were conscientious would forego allgovernmental protection, rather than contribute to the support of a governmentwhich they deemed unjust.

All legitimate government is a mutual insurance company, voluntarily agreedupon by the parties to it, for the protection of their rights against wrong-doers.In its voluntary character it is precisely similar to an association for mutualprotection against fire or shipwreck. Before a man will join an association forthese latter purposes, and pay the premium for being insured, he will, if he be aman of sense, look at the articles of the association ; see what the company prom-ises to do ; what it is likely to do ; and what are the rates of insurance. If hebe satisfied on all these points, he will become a member, pay his premium for ayear, and then hold the company to its contract. If the conduct of the companyprove unsatisfactory, he will let his policy expire at the end of the year for whichhe has paid ; will decline to pay any further premiums, and either seek insur-ance elsewhere, or take his own risk without any insurance. And as men act inthe insurance of their ships and dwellings, they would act in the insurance oftheir properties, liberties and lives, in the political association, or government.

The political insurance company, or government, have no more right, in natureor reason, to assume a man's consent to be protected by them, and to be taxedfor that protection, when he has given no actual consent, than a fire or marineinsurance company have to assume a man's consent to be protected by them, andto pay the premium, when his actual consent has never been given. To take aman's property without his consent is robbery ; and to assume his consent, whereno actual consent is given, makes the taking none the less robbery. If it did,the highwayman has the same right to assume a man's consent to part with hispurse, that any other man, or body of men, can have. And his assumption wouldafford as much moral justification for his robbery as does a like assumption, onthe part of the government, for taking a man's property without his consent.The government's pretence of protecting him, as an equivalent for the taxation,affords no justification. It is for himself to decide whether he desires such pro-tection as the government offers him. If he do not desire it, or do not bargainfor it, the government has no more right than any other insurance company toimpose it upon him, or make him pay for it.

Trial by the country, and no taxation without consent, were the two pillars ofEnglish liberty, (when England had any liberty,) and the first principles of theCommon Law. They mutually sustain each other ; and neither can stand with-out the other. Without both, no people have any guaranty for their freedom ;with both, no people can be otherwise than free.*

* Trial by the country, and no taxation without consent, mutually sustain each other, and can besustained only by each other, for these reasons: 1. Juries would refuse to enforce a tax againsta man who had never agreed to pay it. They would also protect men in forcibly resisting thecollection of taxes to which they had never consented. Otherwise the jurors would authorize thegovernment to tax themselves without their consent, — a thing which no jury would be likely to do.In these two ways, then, trial by the country would sustain the principle of no taxation withoutconsent. 2. On the other hand, the principle of no taxation without consent would sustain thetrial by the country, because men in general would not consent to be taxed for the support of a

224 APPENDIX.

By what force, fraud, and conspiracy, on the part of kings, nobles, and " afew wealthy freeholders," these pillars have been prostrated in England, it isdesigned to show more fully in the next volume, if it should be necessary.

government under which trial by the country was not secured. Thus these two principles mutuallysustain each other.

But, if either of these principles were broken down, the other would fall with it, and for thesereasons: 1. If trial by the country were broken down, the principle of no taxation withoutconsent would fall with it, because the government would then be able to tax the people withouttheir consent, inasmuch as the legal tribunals would be mere tools of the government, and wouldenforce such taxation, and punish men for resisting such taxation, as the government ordered.2. On the other hand, if the principle of no taxation without consent were broken down, trial bythe country would fell with it, because the government, if it could tax people without their consent,would, of course, take enough of their money to enable it to employ all the force necessary for«ustaining its own tribunals, (in the place of juries,) and carrying their decrees into execution.

A LETTER

TO

GROVER CLEVELAND,

His FALSE INAUGURAL ADDRESS, THE USURPATIONS AND

CRIMES OF LAWMAKERS AND JUDGES, AND THE

CONSEQUENT POVERTY, IGNORANCE, AND

SERVITUDE OF THE PEOPLE.

BY

LTSANDEE SPOONEE.

BOSTON:

BENJ. R. TUCKER, PUBLISHER.

188G.

The author reserves his copyright in this letter.

First pamphlet edition published in July, 1886.*

* Under a somewhat different title, to wit, "A Letter to Grover Cleveland, on his False, Absurd,Self-contradictory, and Ridiculous Inaugural Address," this letter was first published, in instalments,in "LIBERTY" (a paper published in Boston); the instalments commencing June 20, 1885, and con-tinuing to May 22,1886: notice being given, in each paper, of the reservation of copyright.

A LETTER TO GROVER CLEVELAND.

SECTION I.

To Grover Cleveland:

SIR,—Your inaugural address is probably as honest, sensible, and consistent aone as that of any president within the last fifty years, or, perhaps, as any since thefoundation of the government. If, therefore, it is false, absurd, self-contradictory,and ridiculous, it is not (as I think) because you are personally less honest, sensible,or consistent than your predecessors, but because the government itself—accordingto your own description of it, and according to the practical administration of it fornearly a hundred years—is an utterly and palpably false, absurd, and criminal one.Such praises as you bestow upon it are, therefore, necessarily false, absurd, andridiculous.

Thus you describe it as " a government pledged to do equal and exact justice toall men."

Did you stop to think what that means? Evidently you did not; for nearly, orquite, all the rest of your address is in direct contradiction to it.

Let me then remind you that justice is an immutable, natural principle; and notanything that can be made, unmade, or altered by any human power.

It is also a subject of science, and is to be learned, like mathematics, or any otherscience. It does not derive its authority from the commands, will, pleasure, ordiscretion of any possible combination of men, whether calling themselves a govern-ment, or by any other name.

It is also, at all times, and in all places, the supreme law. And being everywhereand always the supreme law, it is necessarily everywhere and always the only law.

Lawmakers, as they call themselves, can add nothing to it, nor take anythingfrom it. Therefore all their laws, as they call them,—that is, all the laws of theirown making,—have no color of authority or obligation. It is a falsehood to callthem laws; for there is nothing in them that either creates men's duties or rights,or enlightens them as to their duties or rights. There is consequently nothingbinding or obligatory about them. And nobody is bound to take the least notice

4 A Letter to Grover Cleveland,

of them, unless it be to trample them under foot, as usurpations. If they commandmen to do justice, they add nothing to men's obligation to do it, or to any man'sright to enforce it. They are therefore mere idle wind, such as would be commandsto consider the day as day, and the night as night. If they command or licenseany man to do injustice, they are criminal on their face. If they command anyman to do anything which justice does not require him to do, they are simple, nakedusurpations and tyrannies. If they forbid any man to do anything, which justicewould permit him to do, they are criminal invasions of his natural and rightful lib-erty. In whatever light, therefore, they are viewed, they are utterly destitute ofeverything like authority or obligation. They are all necessarily either the impu-dent, fraudulent, and criminal usurpations of tyrants, robbers, and murderers, orthe senseless work of ignorant or thoughtless men, who do not know, or certainlydo not realize, what they are doing.

This science of justice, or natural law, is the only science that tells us what are,and what are not, each man's natural, inherent, inalienable, individual rights, asagainst any and all other men. And to say that any, or all, other men may right-fully compel him to obey any or all such other laws as they may see fit to make, isto say that he has no rights of his own, but is their subject, their property, andtheir slave.

For the reasons now given, the simple maintenance of justice, or natural law, isplainly the one only purpose for which any coercive power—or anything bearingthe name of government—has a right to exist.

It is intrinsically just as false, absurd, ludicrous, and ridiculous to say that law-makers, so-called, can invent and make any laws, of their own, authoritatively fixing,or declaring, the rights of individuals, or that shall be in any manner authoritativeor obligatory upon individuals, or that individuals may rightfully be compelled toobey, as it would be to say that they can invent and make such mathematics, chem-istry, physiology, or other sciences, as they see fit, and rightfully compel individualsto conform all their actions to them, instead of conforming them to the mathema-tics, chemistry, physiology, or other sciences of nature.

Lawmakers, as they call themselves, might just as well claim the right to abolish,by statute, the natural law of gravitation, the natural laws of light, heat, and elec-tricity, and all the other natural laws of matter and mind, and institute laws oftheir own in the place of them, and compel conformity to them, as to claim theright to set aside the natural law of justice, and compel obedience to such otherlaws as they may see fit to manufacture, and set up in its stead.

Let me now ask you how you imagine that your so-called lawmakers can "doequal and exact justice to all men," by any so-called laws of their own making. Iftheir laws command anything but justice, or forbid anything but injustice, theyare themselves unjust and criminal. If they simply command justice, and forbidinjustice, they add nothing to the natural authority of justice, or to men's obliga-

A Letter to Grover Cleveland. 5

tion to obey it. It is, therefore, a simple impertinence, and sheer impudence, ontheir part, to assume that their commands, as such, are of any authority whatever.It is also sheer impudence, on their part, to assume that their commands are at allnecessary to teach other men what is, and what is not, justice. The science of jus-tice is as open to be learned by all other men, as by themselves; and it is, in gene-ral, so simple and easy to be learned, that there is no need of, and no place for, anyman, or body of men, to teach it, declare it, or command it, on their own authority.

For one, or another, of these reasons, therefore, each and every law, so-called,that forty-eight different congresses have presumed to make, within the last ninety-six years, have been utterly destitute of all legitimate authority. That is to say,they have either been criminal, as commanding or licensing men to do what justiceforbade them to do, or as forbidding them to do what justice would have permittedthem to do; or else they have been superfluous, as adding nothing to men's knowl-edge of justice, or to their obligation to do justice, or abstain from injustice.

What excuse, then, have you for attempting to enforce upon the people that greatmass of superfluous or criminal laws (so-called) which ignorant and foolish, or im-pudent and criminal, men have, for so many years, been manufacturing, and 'pro-mulgating, and enforcing, in violation of justice, and of all men's natural, inherent,and inalienable rights?

SECTION II.

Perhaps you will say that there is no such science as that of justice. If you dosay this, by what right, or on what reason, do you proclaim your intention "to doequal and exact justice to all men"? If there is no science of justice, how do youknow that there is any such principle as justice? Or how do you know what is,and what is not, justice? If there is no science of justice,—such as the people canlearn and understand for themselves,—why do you say anything about justice tothem? Or why do you promise them any such thing as "equal and exact justice," ifthey do not know, and are incapable of learning, what justice is? Do you use thisphrase to deceive those whom you look upon as being so ignorant, so destitute ofreason, as to be deceived by idle, unmeaning words? If you do not, you are plainlybound to let us all know what you do mean, by doing "equal and exact justice toall men."

I can assure you, sir, that a very large portion of the people of this country donot believe that the government is doing "equal and exact justice to all men."And some persons are earnestly promulgating the idea that the government is notattempting to do, and has no intention of doing, anything like "equal and exactjustice to all men "; that, on the contrary, it is knowingly, deliberately, and wil-fully doing an incalculable amount of injustice; that it has always been doing thisin the past, and that it has no intention of doing anything else in the future; that

6 A Letter to Grover Cleveland.

it is a mere tool in the hands of a few ambitious, rapacious, and unprincipledmen; that its purpose, in doing all this injustice, is to keep—so far as they canwithout driving the people to rebellion — all wealth, and all political power, in asfew hands as possible; and that this injustice is the direct cause of all the wide-spread poverty, ignorance, and servitude among the great body of the people.

Now, Sir, I wish I could hope that you would do something to show that you arenot a party to any such scheme as that; something to show that you are neithercorrupt enough, nor blind enough, nor coward enough, to be made use of for anysuch purpose as that; something to show that when you profess your intention"to do equal and exact justice to all men," you attach some real and definitemeaning to your words. Until you do that, is it not plain that the people have aright to consider you a tyrant, and the confederate and tool of tyrants, and to getrid of you as unceremoniously as they would of any other tyrant?

SECTION III.

Sir, if any government is to be a rational, consistent, and honest one, it mustevidently be based on some fundamental, immutable, eternal principle; such asevery man may reasonably agree to, and such as every man may rightfully becompelled to abide by, and obey. And the whole power of the government mustbe limited to the maintenance of that single principle. And that one principle isjustice. There is no other principle that any man can rightfully enforce uponothers, or ought to consent to have enforced against himself. Every man claimsthe protection of this principle for himself, whether he is willing to accord it toothers, or not. Yet such is the inconsistency of human nature, that some men —in fact, many men—who will risk their lives for this principle, when their ownliberty or property is at stake, will violate it in the most flagrant manner, if theycan thereby obtain arbitrary power over the persons or property of others. Wehave seen this fact illustrated in this country, through its whole history—espe-cially during the last hundred years—and in the case of many of the most con-spicuous persons. And their example and influence have been employed topervert the whole character of the government. It is against such men, that allothers, who desire nothing but justice for themselves, and are willing to unite tosecure it for all others, must combine, if we are ever to have justice establishedfor any.

SECTION IV.

It is self-evident that no number of men, by conspiring, and calling themselvesa government, can acquire any rights whatever over other men, or other men'sproperty, which they had not before, as individuals. And whenever any number


of men, calling themselves a government, do anything to another man, or to hisproperty, which they had no right to do as individuals, they thereby declare them-selves trespassers, robbers, or murderers, according to the nature of their acts.

Men, as individuals, may rightfully compel each other to obey this one law of jus-tice. And it is the only law which any man can rightfully be compelled, by hisfellow men, to obey. All other laws, it is optional with each man to obey, or not,as he may choose. But this one law of justice he may rightfully be compelled toobey; and all the force that is reasonably necessary to compel him, may right-fully be used against him.

But the right of every man to do anything, and everything, which justice does notforbid him to do, is a natural, inherent, inalienable right. It is his right, as againstany and all other men, whether they be many, or few. It is a right indispensableto every man's highest happiness; and to every man's power of judging and de-termining for himself what will, and what will not, promote his happiness. Anyrestriction upon the exercise of this right is a restriction upon his rightful powerof providing for, and accomplishing, his own well-being.

Sir, these natural, inherent, inalienable, individual rights are sacred things.They are the only human rights. They are the only rights by which any man canprotect his own property, liberty, or life against any one who may be disposed'totake it away. Consequently they are not things that any set of either blockheadsor villains, calling themselves a government, can rightfully take into their ownhands, and dispose of at their pleasure, as they have been accustomed to do inthis, and in nearly or quite all other countries.

SECTION V.

Sir, I repeat that individual rights are the only human rights. Legally speaking,there are no such things as "public rights," as distinguished from individual rights.Legally speaking, there is no such creature or thing as "thepublic." The term "thepublic" is an utterly vague and indefinite one, applied arbitrarily and at randomto a greater or less number of individuals, each and-every one of whom have theirown separate, individual rights, and none others. And the protection of theseseparate, individual rights is the one only legitimate purpose, for which anythingin the nature of a governing, or coercive, power has a right to exist. And theseseparate, individual rights all rest upon, and can be ascertained only by, the onescience of justice.

Legally speaking, the term "public rights" is as vague and indefinite as are theterms "public health," "public good" "public welfare" and the like. It has nolegal meaning, except when used to describe the separate, private, individual rightsof a greater or less number of individuals.

In so far as the separate, private, natural rights of individuals are secured, in


just so far, and no farther, are the "public rights"*secured. In so far as the sepa-rate, private, natural rights of individuals are disregarded or violated, in just so farare "public rights" disregarded or violated. Therefore all the pretences of so-called lawmakers, that they are protecting "public rights," by violating privaterights, are sheer and utter contradictions and frauds. They are just as false andabsurd as it would be to say that they are protecting the public healthy by arbitra-rily poisoning and destroying the health of single individuals.

The pretence of the lawmakers, that they are promoting the "public good,"by violating individual "rights" is just as false and absurd as is the pretence thatthey are protecting "public rights" by violating "private rights." Sir, the great-est "public good" of which any coercive power, calling itself a government, or byany other name, is capable, is the protection of each and every individual in thequiet and peaceful enjoyment and exercise of all his own natural, inherent, inali-enable, individual "rights." This is a "good" that comes home to each and everyindividual, of whom " the public" is composed. It is also a " good," which eachand every one of these individuals, composing "the public," can appreciate. It isa "good," for the loss of which governments can make no compensation whatever.It is a universal and impartial "good" of the highest importance to each and everyhuman being; and not any such vague, false, and criminal thing as the lawmakers—when violating private rights—tell us they are trying to accomplish, under thename of "the public good." It is also the only "equal and exact justice," whichyou, or anybody else, are capable of securing, or have any occasion to secure, toany human being. Let but this "equal and exact justice" be secured "to allmen," and they will then be abundantly able to take care of themselves, and se-cure their own highest "good." Or if any one should ever chance to need any-thing more than this, he may safely trust to the voluntary kindness of his fellowmen to supply it.

It is one of those things not easily accounted for, that men who would scornto do an injustice to a fellow man, in a private transaction,—who would scorn tousurp any arbitrary dominion over him, or his property,—who would be in thehighest degree indignant, if charged with any private injustice,—and who, at amoment's warning, would take their lives in their hands, to defend their own rights,and redress their own wrongs,—will, the moment they become members of whatthey call a government, assume that they are absolved from all principles and allobligations that were imperative upon them, as individuals; will assume that theyare invested with a right of arbitrary and irresponsible dominion over other men,and other men's property. Yet they are doing this continually. And all the lawsthey make are based upon the assumption that they have now become investedwith rights that are more than human, and that those, on whom their laws are tooperate, have lost even their human rights. They seem to be utterly blind to thefact, that the only reason there can be for their existence as a government, is that


they may protect those very "rights," which they before scrupulously respected,but which they now unscrupulously trample upon.

SECTION VI.

But you evidently believe nothing of what I have now been saying. You evi-dently believe that justice is no law at all, unless in cases where the lawmakersmay chance to prefer it to any law which they themselves can invent.

You evidently believe that a certain paper, called the constitution, which no-body ever signed, which few persons ever read, which the great body of the peo-ple never saw, and as to the meaning of which no two persons were ever agreed, isthe supreme law of this land, anything in the law of nature—anything in thenatural, inherent, inalienable, individual rights ofjfrfty millions of people—to thecontrary notwithstanding.

Did folly, falsehood, absurdity, assumption, or criminality ever reach a higherpoint than that?

You evidently believe that those great volumes of statutes, which the people atlarge have never read, nor even seen, and never will read, nor see, but which suchmen as you and your lawmakers have been manufacturing for nearly a hundredyears, to restrain them of their liberty, and deprive them of their natural rights,were all made for their benefit, by men wiser than they—wiser even than justiceitself—and having only their welfare at heart!

You evidently believe that the men who made those laws were duly authorizedto make them; and that you yourself have been duly authorized to enforce them.But in this you are utterly mistaken. You have not so much as the honest,responsible scratch of one single pen, to justify you in the exercise of the poweryou have taken upon yourself to exercise. For example, you have no such evi-dence of your right to take any man's property for the support of your govern-ment, as would be required of you, if you were to claim pay for a single day'shonest labor.

It was once said, in this country, that taxation without consent was robbery.And a seven years' war was fought to maintain that principle. But if that prin-ciple were a true one in behalf of three millions of men, it is an equally true onein behalf of three men, or of one man.

Who are ever taxed ? Individuals only. Who have property that can be taxed?Individuals only. Who can give their consent to be taxed? Individuals only.Who are ever taxed without their consent? Individuals only. Who, then, arerobbed, if taxed without their consent ? Individuals only.

If taxation without consent is robbery, the United States government has neverhad, has not now, and is never likely to have, a single honest dollar in its treasury.


If taxation without consent is not robbery, then any band of robbers have onlyto declare themselves a government, and all their robberies are legalized.

If any man's money can be taken by a so-called government, without his ownpersonal consent, all his other rights are taken with it; for with his money thegovernment can, and will, hire soldiers to stand over him, compel him to submitto its arbitrary will, and kill him if he resists.

That your whole claim of a right to any man's money for the support of yourgovernment, without his consent, is the merest farce and fraud, is proved by thefact that you have no such evidence of your right to take it, as would be requiredof you, by one of your own courts, to prove a debt of five dollars, that might behonestly due you.

You and your lawmakers have no such evidence of your right of dominion overthe people of this country, as would be required to prove your right to any mate-rial property, that you might have purchased.

When a man parts with any considerable amount of such material property ashe has a natural right to part with,—as, for example, houses, or lands, or food, orclothing, or anything else of much value,—he usually gives, and the purchaserusually demands, some written acknowledgment, receipt, bill of sale, or other evi-dence, that will prove that he voluntarily parted with it, and that the purchaser isnow the real and true owner of it. But you hold that fifty millions of people havevoluntarily parted, not only with their natural right of dominion over all their ma-terial property, but also with all their natural right of dominion over their ownsouls and bodies; when not one of them has ever given you a scrap of writing, oreven " made his mark," to that effect.

You have not so much as the honest signature of a single human being, grant-ing to you or your lawmakers any right of dominion whatever over him or hisproperty.

You hold your place only by a title, which, on no just principle of law or reason,is worth a straw. And all who are associated with you in the government—whether they be called senators, representatives, judges, executive officers, or whatnot—all hold their places, directly or indirectly, only by the same worthless title.That title is nothing more nor less than votes given in secret (by secret ballot),by not more than one-fifth of the whole population. These votes were given insecret solely because those who gave them did not dare to make themselves per-sonally responsible, either for their own acts, or the acts of their agents, the law-makers, judges, etc.

These voters, having given their votes in secret (by secret ballot), have put itout of your power—and out of the power of all others associated with you in thegovernment—to designate your principals individually. That is to say, you haveno legal knowledge as to who voted for you, or who voted against you. And beingunable to designate your principals individually, you have no right to say that you


have any principals. And having no right to say that you have any principals,you are bound, on every just principle of law or reason, to confess that you aremere usurpers, making laws, and enforcing them, upon your own authority alone.

A secret ballot makes a secret government; and a secret government is nothingelse than a government by conspiracy. And a government by conspiracy is theonly government we now have.

You say that " every voter exercises a public trust"Who appointed him to that trust? Nobody. He simply usurped the power;

he never accepted the trust. And because he usurped the power, he dares exerciseit only in secret. Not one of all the ten millions of voters, who helped to placeyou in power, would have dared to do so, if he had known that he was to be heldpersonally responsible, before any just tribunal, for the acts of those for whom hevoted.

Inasmuch as all the votes, given for you and your lawmakers, were given in se-cret, all that you and they can say, in support of your authority as rulers, is thatyou venture upon your acts as lawmakers, etc., not because you have any open,authentic, written, legitimate authority granted you by any human being,—foryou can show nothing of the kind,—but only because, from certain reports- madeto you of votes given in secret, you have reason to believe that you have at yourbacks a secret association strong enough to sustain you by force, in case yourauthority should be resisted.

Is there a government on earth that rests upon a more false, absurd, or tyranni-cal basis than that?

SECTION VII.

But the falsehood and absurdity of your whole system of government do notresult solely from the fact that it rests wholly upon votes given in secret, or bymen who take care to avoid all personal responsibility for their own acts, or theacts of their agents. On the contrary, if every man, woman, and child in theUnited States had openly.signed, sealed, and delivered to you and your associates,a written document, purporting to invest you with all the legislative, judicial, andexecutive powers that you now exercise, they would not thereby have given youthe slightest legitimate authority. Such a contract, purporting to surrender intoyour hands all their natural rights of person and property, to be disposed of atyour pleasure or discretion, would have been simply an absurd and void contract,giving you no real authority whatever.

It is a natural impossibility for any man to make a binding contract, by whichhe shall surrender to others a single one of what are commonly called his "natu-ral, inherent, inalienable rights."

It is a natural impossibility for any man to make a binding contract, that shallinvest others with any right whatever of arbitrary, irresponsible dominion over him.

12 A. Letter to Graver Cleveland,

The right of arbitrary, irresponsible dominion is the right of property; and theright of property is the right of arbitrary, irresponsible dominion. The two areidentical. There is no difference between them. Neither can exist without theother. If, therefore, our so-called lawmakers really have that right of arbitrary,irresponsible dominion over us, which they claim to have, and which they habitu-ally exercise, it must be because they own us as property. If they own us as pro-perty, it must be because nature made us their property; for, as no man can sellhimself as a slave, we could never make a binding contract that should make ustheir property—or, what is the same thing, give them any right of arbitrary, irre-sponsible dominion over us.

As a lawyer, you certainly ought to know that all this is true.

SECTION VIII.

Sir, consider, for a moment, what an utterly false, absurd, ridiculous, and crimi-nal government we now have.

It all rests upon the false, ridiculous, and utterly groundless assumption, thatfifty millions of people not only could voluntarily surrender, but actually havevoluntarily surrendered, all their natural rights, as human beings, into the custodyof some four hundred men, called lawmakers, judges, etc., who are to be heldutterly irresponsible for the disposal they may make of them.*

The only right, which any individual is supposed to retain, or possess, under thegovernment, is a purely fictitious one,—one that nature never gave him,—to wit, hisright (so-called), as one of some ten millions of male adults, to give away, by hisvote, not only all his own natural, inherent, inalienable, human rights, but also;all the natural, inherent, inalienable, human rights of forty millions of otherhuman beings—that is, women and children.

To suppose that any one of all these ten millions of male adults would volunta-rily surrender a single one of all his natural, inherent, inalienable, human rightsinto the hands of irresponsible men, is an absurdity; because, first, he has no

*The irresponsibility of the senators and representatives is guaranteed to them in this wise:For any speech or debate [or vote] in either house, they [the senators and representatives] shall not

be questioned [held to any legal responsibility] in any other place—Constitution, Art. 1, Sec. 6.The judicial and executive officers are all equally guaranteed against all responsibility to the people.

They are made responsible only to the senators and representatives, whose laws they are to administerand execute. So long as they sanction and execute all these laws, to the satisfaction of the law-makers, they are safe against all responsibility. In no case, can the people, whose rights they are con-tinually denying and trampling upon, Jtold them to any accountability whatever.

Thus it will be seen that all departments of the government, legislative, judicial, and executive, areplaced entirely beyond any responsibility to the people, whose agents they profess to be, and whoserights they assume to dispose of at pleasure.

Was a more absolute, irresponsible government than that ever invented ?


power to do so, any contract he may make for that purpose being absurd, andnecessarily void; and, secondly, because he can have no rational motive for doingso. To suppose him to do so, is to suppose him to be an idiot, incapable of makingany rational and obligatory contract. It is to suppose he would voluntarily giveaway everything in life that was of value to himself, and get nothing in return.To suppose that he would attempt to give away all the natural rights of other per-sons—that is, the women and children—as well as his own, is to suppose him toattempt to do something that he has no right, or power, to do. It is to supposehim to be both a villain and a fool.

And yet this government now rests wholly upon the assumption that some tenmillions of male adults—men supposed to be compos mentis—have not only at-tempted to do, but have actually succeeded in doing, these absurd and impossiblethings.

It cannot be said that men put all their rights into the hands of the government,in order to have them protected; because there can be no such thing as a man's be-ing protected in his rights, any longer than he is allowed to retain them in his own pos-session. The only possible way, in which any man can be protected in his rights,is to protect him in his own actual possession and exercise of them. And yet our govern-ment is absurd enough to assume that a man can be protected in his rights, afterhe has surrendered them altogether into other hands than his own.

This is just as absurd as it would be to assume that a man had given himselfaway as a slave, in order to be protected in the enjoyment of his liberty.

A man wants his rights protected, solely that he himself may possess and usethem, and have the full benefit of them. But if he is compelled to give them up tosomebody else,—to a government, so-called, or to any body else,—he ceases to haveany rights of his own to be protected.

To say, as the advocates of our government do, that a man must give up some ofhis natural rights, to a government, in order to have the rest of them protected—the government being all the while the sole and irresponsible judge as to what rightshe does give up, and what he retains, and what are to be protected—is to say thathe gives up all the rights that the government chooses, at any time, to assume thathe has given up; and that he retains none, and is to be protected in none, exceptsuch as the government shall, at all times, see fit to protect, and to permit him toretain. This is to suppose that he has retained no rights at all, that he can, at anytime, claim as his own, as against the government. It is to say that he has reallygiven up every right, and reserved none.

For a still further reason, it is absurd to say that a man must give up some of hisrights to a government, in order that government may protect him in the rest.That reason is, that every right he gives up diminishes his own power of self-protection, and makes it so much more difficult for the government to protect him.And yet our government says a man must give up all his rights, in order that it


may protect him. It might just as well be said that a man must consent to bebound hand and foot, in order to enable a government, or his friends, to protecthim against an enemy. Leave him in full possession of his limbs, and of all hispowers, and he will do more for his own protection than he otherwise could, andwill have less need of protection from a government, or any other source.

Finally, if a man, who is compos mentis, wants any outside protection for his rights,he is perfectly competent to make his own bargain for such as he desires; and otherpersons have no occasion to thrust their protection upon him, against his will; orto insist, as they now do, that he shall give up all, or any, of his rights to them, inconsideration of such protection, and only such protection, as they may afterwardschoose to give him.

It is especially noticeable that those persons, who are so impatient to protect othermen in their rights that they cannot wait until they are requested to do so, have asomewhat inveterate habit of killing all who do not voluntarily accept their protec-tion ; or do not consent to give up to them all their rights in exchange for it.

If A were to go to B, a merchant, and say to him, " Sir, I am a night-watchman,and I insist upon your employing me as such in protecting your property againstburglars; and to enable me to do so more effectually, I insist upon your letting metie your own hands and feet, so that you cannot interfere with me; and also uponyour delivering up to me all your keys to your store, your safe, and to all your valua-bles ; and that you authorize me to act solely and fully according to my own will,pleasure, and discretion in the matter; and I demand still further, that you shallgive me an absolute guaranty that you will not hold me to any accountability what-ever for anything I may do, or for anything that may happen to your goods whilethey are under my protection; and unless you comply with this proposal, I will nowkill you on the spot," — if A were to say all this to B, B would naturally concludethat A himself was the most impudent and dangerous burglar that he (B) had tofear; and that if he (B) wished to secure his property against burglars, his best waywould be to kill A in the first place, and then take his chances against all suchother burglars as might come afterwards.

Our government constantly acts the part that is here supposed to be acted by A.And it is just as impudent a scoundrel as A is here supposed to be. It insiststhat every man shall give up all his rights unreservedly into its custody, and thenhold it wholly irresponsible for any disposal it may make of them. And it giveshim no alternative but death.

If by putting a bayonet to a man's breast, and giving him his choice, to die, orbe "protected in his rights," it secures his consent to the latter alternative, it thenproclaims itself a free government, — a government resting on consent!

You yourself describe such a government as "the best government ever vouch-safed to man."

Can you tell me of one that is worse in principle?


But perhaps you will say that ours is not so bad, in principle, as the others, forthe reason that here, once in two, four, or six years, each male adult is permitted tohave one vote in ten millions, in choosing the public protectors. Well, if you thinkthat that materially alters the case, I wish you joy of your remarkable discernment.

SECTION IX.

Sir, if a government is to "do equal and exact justice to all men," it must dosimply that, and nothing more. If it does more than that to any, — that is, if it givesmonopolies, privileges, exemptions, bounties, or favors to any,—it can do so onlyby doing injustice to more or less others. It can give to one only what it takes fromothers; for it has nothing of its own to give to any one. The best that it can do for all,and the only honest thing it can do for any, is simply to secure to each and everyone his own rights,—the rights that nature gave him,—his rights of person, andhis rights of property; leaving him, then, to pursue his own interests, and secure hisown welfare, by the free and full exercise of his own powers of body and mind; solong as he trespasses upon the equal rights of no other person.

If he desires any favors from any body, he must, I repeat, depend upon the vol-untary kindness of such of his fellow men as may be willing to grant them. Nogovernment can have any right to grant them; because no government can have aright to take from one man any thing that is his, and give it to another.

If this be the only true idea of an honest government, it is plain that it can havenothing to do with men's "interests," "welfare," or "prosperity," as distinguishedfrom their " rights." Being secured in their rights, each and all must take the solecharge of, and have the sole responsibility for, their own "interests," "welfare,"and "prosperity."

By simply protecting every man in his rights, a government necessarily keepsopen to every one the widest possible field, that he honestly can have, for such in-dustry as he may choose to follow. It also insures him the widest possible fieldfor obtaining such capital as he needs for his industry, and the widest possiblemarkets for the products of his labor. With the possession of these rights, hemust be content.

No honest government can go into business with any individuals, be they many,or few. It cannot furnish capital to any, nor prohibit the loaning of capital to any.It can give to no one any special aid to competition; nor protect any one fromcompetition. It must adhere inflexibly to the principle of entire freedom for allhonest industry, and all honest traffic. It can do to no one any favor, nor renderto any one any assistance, which it withholds from another. It must hold thescales impartially between them; taking no cognizance of any man's "interests,""welfare," or "prosperity," otherwise than by simply protecting him in his "rights.1*

In opposition to this view, lawmakers profess to have weighty duties laid upon


them, to promote men's "interests," "welfare," and "prosperity," as distinguishedfrom their "rights" They seldom have any thing to say about men's "rights." Onthe contrary, they take it for granted that they are charged with the duty of pro-moting, superintending, directing, and controlling the "business" of the country.In the performance of this supposed duty, all ideas of individual "rights" are castaside. Not knowing any way—because there is no way—in which they can im-partially promote all men's "interests," "welfare," and "prosperity," otherwise thanby protecting impartially all men's rights, they boldly proclaim that " individual rightsmust not he permitted to stand in the toay of the public good, the public welfare, and thebusiness interests of the country"

Substantially all their lawmaking proceeds upon this theory; for there is noother theory, on which they can find any justification whatever for any lawmakingat all. So they proceed to give monopolies, privileges, bounties, grants, loans, etc.,etc., to particular persons, or classes of persons; justifying themselves by sayingthat these privileged persons will "give employment" to the unprivileged; and thatthis employment, given by the privileged to the unprivileged, will compensate thelatter for the loss of their "rights." And they carry on their lawmaking of thiskind to the greatest extent they think is possible, without causing rebellion andrevolution, on the part of the injured classes.

Sir, I am sorry to see that you adopt this lawmaking theory to its fullest ex-tent; that although, for once only, and in a dozen words only, — and then merelyincidentally, — you describe the government as "a government pledged to do equaland exact justice to all men," you show, throughout the rest of your address, thatyou have no thought of abiding by that principle; that you are either utterly igno-rant, or utterly regardless, of what that principle requires of you; that the govern-ment, so far as your influence goes, is to be given up to the business of lawmaking,— that is, to the business of abolishing justice, and* establishing injustice in itsplace; that you hold it to be the proper duty and function of the government to beconstantly looking after men's "interests," "welfare," "prosperity," etc., etc., asdistinguished from their rights; that it must consider men's "rights" as no guide tothe promotion of their " interests "; that it must give favors to some, and withholdthe same favors from others; that in order to give these favors to some, it musttake from others their rights; that, in reality, it must traffic in both men's interestsand their rights; that it must keep open shop, and sell men's interests and rightsto the highest bidders; and that this is your only plan for promoting " the generalwelfare," "the common interest," etc., etc.

That such is your idea of the constitutional duties and functions of the govern-ment, is shown by different parts of your address: but more fully, perhaps, by this:

The large variety of diverse and competing interests subject to federal control, persistentlyseeking recognition of their claims, need give us no fear that the greatest good of the great-


est number will fail to be accomplished, if, in the halls of national legislation, that spirit ofamity and mutual concession shall prevail, in which the constitution had its birth. If thisinvolves the surrender or postponement of private interests, and the abandonment of localadvantages, compensation will be found in the assurance that thus the common interest issubserved, and the general welfare advanced.

What is all this but saying that the government is not at all an institution for"doing equal and exact justice to all men," or for the impartial protection of allmen's rights; but that it is its proper business to take sides, for and against, a"large variety of diverse and competing interests"; that it has this "large variety ofdiverse and competing interests" under its arbitrary "control"; that it can, at itspleasure, make such laws as will give success to some of them, and insure the de-feat of others; that these "various, diverse, and competing interests" will be#"per-sistently seeking recognition of their claims . . . . in the halls of national legislation" —that is, will be " persistently" clamoring for laws to be made in their favor; that,in fact, " the halls of national legislation" are to be mere arenas, into which thegovernment actually invites the advocates and representatives of all the selfishschemes of avarice and ambition that unprincipled men can devise; that theseschemes will there be free to " compete " with each other in their corrupt offers forgovernment favor and support; and that it is to be the proper and ordinary busi-ness of the lawmakers to listen to all these schemes; to adopt some of them, andsustain them with all the money and power of the government; and to "postpone,""abandon," oppose, and defeat all others; it being well known, all the while, thatthe lawmakers will, individually, favor, or oppose, these various schemes, accordingto their own irresponsible will, pleasure, and discretion,—that is, according as theycan better serve their own personal interests and ambitions by doing the one orthe other.

Was a more thorough scheme of national villainy ever invented?Sir, do you not know that in this conflict, between these "various, diverse, and

competing interests" all ideas of individual "rights"—all ideas of "equal and exactjustice to all men"—will be cast to the winds; that the boldest, the strongest, themost fraudulent, the most rapacious, and the most corrupt, men will have controlof the government, and make it a mere instrument for plundering the great bodyof the people?

Your idea of the real character of the government is plainly this: The law-makers are to assume absolute and irresponsible "control" of all the financial re-sources, all the legislative, judicial, and executive powers, of the government, andemploy them all for the promotion of such schemes of plunder and ambition asthey may select from all those that may be submitted to them for their approval;that they are to keep "the halls of national legislation" wide open for the admis-sion of all persons having such schemes to offer; and that they are to grant mono-polies, privileges, loans, and bounties to all such of these schemes as they can make

18 A. Letter to Grover Cleveland.

subserve their own individual interests and ambitions, and reject or "postpone"all others. And that there is to be no limit to their operations of this kind, excepttheir fear of exciting rebellion and resistance on the part of the plundered classes.

And you are just fool enough to tell us that such a government as this may berelied on to "accomplish the greatest good to the greatest number," "to subservethe common interest," and "advance the general welfare," "if," only, "in the hallsof national legislation, that spirit of amity and mutual concession shall prevail, inwhich the constitution had its birth."

You here assume that "the general welfare" is to depend, not upon the freeand untrammelled enterprise and industry of the whole people, acting individually,and each enjoying and exercising all his natural rights; but wholly or principallyupon.the success of such particular schemes as the government may take under itsspecial "control." And this means that "the general welfare " is to depend, whollyor principally, upon such privileges, monopolies, loans, and bounties as the govern-ment may grant to more or less of that "large variety of diverse and competinginterests"—that is, schemes—that maybe "persistently" pressed upon its attention.

But as you impliedly acknowledge that the government cannot take all these"interests" (schemes) under its "control," and bestow its favors upon all alike, youconcede that some of them must be "surrendered," "postponed," or "abandoned";and that, consequently, the government cannot get on at all, unless, " in the hallsof national legislation, that spirit of amity and mutual concession shall prevail, inwhich the constitution had its birth."

This " spirit of amity and mutual concession in the halls of legislation," you ex-plain to mean this: a disposition, on the part of the lawmakers respectively—whose various schemes of plunder cannot all be accomplished, by reason of theirbeing beyond the financial resources of the government, or the endurance of thepeople—to "surrender" some of them, "postpone" others, and "abandon" others,in order that the general business of robbery may go on to the greatest extent pos-sible, and that each one of the lawmakers may succeed with as many of theschemes he is specially intrusted with, as he can carry through by means of suchbargains, for mutual help, as he may be able to make with his fellow lawmakers.

Such is the plan of government, to which you say that you "consecrate" your-self, and " engage your every faculty and effort."

Was a more shameless avowal ever made?You cannot claim to be ignorant of what crimes such a government will commit.

You have had abundant opportunity to know—and if you have kept your eyesopen, you do know—what these schemes of robbery have been in the past; andfrom these you can judge what they will be in the future.

You know that under such a system, every senator and representative—probablywithout an exception—will come to the congress as the champion of the dominantscoundrelisms of his own State or district; that he will be elected solely to serve

A Letter to Grover Cleveland, 19

those " interests," as you call them; that in offering himself as a candidate, he willannounce the robbery, or robberies, to which all his efforts will be directed; thathe will call these robberies his " policy "; or if he be lost to all decency, he will callthem his "principles"; that they will always be such as he thinks will best subservehis own interests, or ambitions; that he will go to "the halls of national legisla-tion" with his head full of plans for making bargains with other lawmakers — ascorrupt as himself—for mutual help in carrying their respective schemes.

Such has been the character of our congresses nearly, or quite, from the begin-ning. It can scarcely be said that there has ever been an honest man in one ofthem. A man has sometimes gained a reputation for honesty, in his own State ordistrict, by opposing some one or more of the robberies that were proposed bymembers from other portions of the country. But such a man has seldom, ornever, deserved his reputation; for he has, generally, if not always, been the advo-cate of some one or more schemes of robbery, by which more or less of his ownconstituents were to profit, and which he knew it would be indispensable that heshould advocate, in order to give him votes at home.

If there have ever been any members, who were consistently honest throughout,—who were really in favor of "doing equal and exact justice to all men,"—and,of course, nothing more than that to any,—their numbers have been few; so fewas to have left no mark upon the general legislation. They have but constitutedthe exceptions that proved the rule. If you were now required to name such alawmaker, I think you would search our history in vain to find him.

That this is no exaggerated description of our national lawmaking, the followingfacts will prove.

For the first seventy years of the government, one portion of the lawmakerswould be satisfied with nothing less than permission to rob one-sixth, or one-seventh, of the whole population, not only of their labor, but even of their right totheir own persons. In 1860, this class of lawmakers comprised all the senators andrepresentatives from fifteen, of the then thirty-thre.e, States.*

This body of lawmakers, standing always firmly together, and capable of turn-ing the scale for, or against, any scheme of robbery, in which northern men wereinterested, but on which northern men were divided,—such as navigation acts,tariffs, bounties, grants, war, peace, etc.,—could purchase immunity for their owncrime, by supporting such, and so many, northern crimes—second only to theirown in atrocity—as could be mutually agreed on.

*In the Senate they stood thirty to thirty-six, in the house ninety to one hundred and forty-seven, inthe two branches united one hundred and twenty to one hundred and eighty-three, relatively to thenon-slaveholding members.

From the foundation of the government—without a single interval, I think—the lawmakers fromthe slaveholding States had been, relatively, as strong, or stronger, than in 1860.


In this way the slaveholders bargained for, and secured, protection for slaveryand the slave trade, by consenting to such navigation acts as some of the northernStates desired, and to such tariffs on imports—such as iron, coal, wool, woollengoods, etc., — as should enable the home producers of similar articles to make for-tunes by robbing everybody else in the prices of their goods.

Another class of lawmakers have been satisfied with nothing less than such amonopoly of money, as should enable the holders of it to suppress, as far as possi-ble, all industry and traffic, except such as they themselves should control; such amonopoly of money as would put it wholly out of the power of the great body ofwealth-producers to hire the capital needed for their industries; and thus compelthem—especially the mechanical portions of them—by the alternative of starva-tion—to sell their labor to the monopolists of money, for just such prices as theselatter should choose to pay. This monopoly of money has also given, to the hold'ers of it, a control, so nearly absolute, of all industry—agricultural as well as me-chanical—and all traffic, as has enabled them to plunder all the producing classesin the prices of their labor, or the products of their labor.

Have you been blind, all these years, to the existence, or the effects, of this mo-nopoly of money ?

Still another class of lawmakers have demanded unequal taxation on the variouskinds of home property, that are subject to taxation; such unequal taxation aswould throw heavy burdens upon some kinds of property, and very light burdens,or no burdens at all, upon other kinds.

And yet another class of lawmakers have demanded great appropriations, orloans, of money, or grants of lands, to enterprises intended to give great wealth toa few, at the expense of everybody else.

These are some of the schemes of downright and outright robbery, which youmildly describe as "the large variety of diverse and competing interests, subjectto federal control, persistently seeking recognition of their claims in thehalls of national legislation "; and each having its champions and representativesamong the lawmakers.

You know that all, or very nearly all, the legislation of congress is devoted tothese various schemes of robbery; and that little, or no, legislation goes through,except by means of such bargains as these lawmakers may enter into with eachother, for mutual support of their respective robberies. And yet you have themendacity, or the stupidity, to tell us that so much of this legislation as does gothrough, may be relied on to " accomplish the greatest good to the greatest num-ber," to "subserve the common interest," and "advance the general welfare."

And when these schemes of robbery become so numerous, atrocious, and unen-durable that they can no longer be reconciled "in the halls of national legislation,"by "surrendering" some of them, "postponing" others, and "abandoning" others,you assume—for such has been the prevailing opinion, and you say nothing to

A Letter to Grower Cleveland. 21

the contrary—that it is the right of the strongest party, or parties, to murder ahalf million of men, if that be necessary,—and as we onoe did,—not to secureliberty or justice to any body,—but to compel the weaker of these would-be rob-bers to submit to all such robberies as the stronger ones may choose to practiseupon them.

SECTION X.

Sir, your idea of the true character of our government is plainly this: you as-sume that all the natural, inherent, inalienable, individual, human rights of fiftymillions of people—all their individual rights to preserve their own lives, andpromote their own happiness—have been thrown into one common heap,—intohotchpotch, as the lawyers say: and that this hotchpotch has been given into thehands of some four hundred champion robbers, each of whom has pledged himselfto carry off as large a portion of it as possible, to be divided among those men—well known to himself, but who—to save themselves from all responsibility forhis acts—have secretly (by secret ballot) appointed him to be their champion.

Sir, if you had assumed that all the people of this country had thrown all theirwealth, all their rights, all their means of living, into hotchpotch; and that thishotchpotch had been given over to four hundred ferocious hounds; and that eachof these hounds had been selected and trained to bring to his masters so much ofthis common plunder as he, in the general fight, or scramble, could get off with,you would scarcely have drawn a more vivid picture of the true character of thegovernment of the United States, than you have done in your inaugural address.

No wonder that you are obliged to confess that such a government can be car-ried on only "amid the din of party strife"; that it will be influenced—youshould have said directed—by "purely partisan zeal"; and that it will be attendedby "the animosities of political strife, the bitterness of partisan defeat, and theexultation of partisan triumph."

What gang of robbers, quarrelling over the division of their plunder, couldexhibit a more shameful picture than you thus acknowledge to be shown by thegovernment of the United States ?

Sir, nothing of all this "din," and "strife," and "animosity," and "bitterness,"is caused by any attempt, on the part of the government, to simply "do equal andexact justice to all men,"—to simply protect every man impartially in all hisnatural rights to life, liberty, and property. It is all caused simply and solely bythe government's violation of some men's "rights," to promote other men's "inter-ests." If you do not know this, you are mentally an object of pity.

Sir, men's "rights" are always harmonious. That is to say, each man's "rights"are always consistent and harmonious with each and every other man's "rights."But their "interests" as you estimate them, constantly clash; especially such


"interests" as depend on government grants of monopolies, privileges, loans, andbounties. And these "interests," like the interests of other gamblers, clash witha fury proportioned to the amounts at stake. It is these clashing " interests," andnot any clashing "rights," that give rise to all the strife you have here depicted,and to all this necessity for "that spirit of amity and mutual concession," whichyou hold to be indispensable to the accomplishment of such legislation as you sayis necessary to the welfare of the country.

Each and every man's "rights" being consistent and harmonious with each andevery other man's "rights"; and all men's rights being immutably fixed, and easilyascertained, by a science that is open to be learned and known by all; a govern-ment that does nothing but "equal and exact justice to all men"—that simplygives to every man his own, and nothing more to any—has no cause and no occa-sion for any "political parties." What are these "political parties" but'standingarmies of robbers, each trying to rob the other, and to prevent being itself robbedby the other? A government that seeks only to "do equal and exact justice to allmen," has no cause and no occasion to enlist all the fighting men in the nation intwo hostile ranks; to keep them always in battle array, and burning with hatredtowards each other. It has no cause and no occasion for any " political warfare,"any "political hostility," any "political campaigns," any "political contests," any"political fights," any "political defeats," or any "political triumphs." It has nocause and no occasion for any of those "political leaders" so called, whose wholebusiness is to invent new schemes of robbery, and organize the people into oppos-ing bands of robbers; all for their own aggrandizement alone. It has no causeand no occasion for the toleration, or the existence, of that vile horde of politicalbullies, and swindlers, and blackguards, who enlist on one side or the other, andfight for pay; who, year in and year out, employ their lungs and their ink inspreading lies among ignorant people, to excite their hopes of gain, or their fearsof loss, and thus obtain their votes. In short, it has no cause and no occasion forall this "din of party strife," for all this "purely partisan zeal," for all "the bitter-ness of partisan defeat," for all "the exultation of partisan triumph," nor, worstof all, for any of "that spirit of amity and mutual concession [by which you evi-dently mean that readiness, " in the halls of national legislation," to sacrifice somemen's "rights" to promote other men's "interests"] in which [you say] the con-stitution had its birth."

If the constitution does really, or naturally, give rise to all this "strife," andrequire all this "spirit of amity and mutual concession,"—and I do not care nowto deny that it does, — so much the worse for the constitution. And so much theworse for all those men who, like yourself, swear to "preserve, protect, anddefend it."

And yet you have the face to make no end of professions, or pretences, that theimpelling power, the real motive, in all this robbery and strife, is nothing else


than "the service of the people," "their interests," "the promotion of their wel-fare," "good government," "government by the people," "the popular will," "thegeneral weal," "the achievements of our national destiny," "the benefits whichour happy form of government can bestow," "the lasting welfare of the country,""the priceless benefits of the constitution," "the greatest good to the greatestnumber," "the common interest," "the general welfare," "the people's will," "themission of the American people," "our civil policy," "the genius of our institu-tions," "the needs of our people in their home life," "the settlement and develop-ment of the resources of our vast territory," "the prosperity of our republic," "theinterests and prosperity of all the people," "the safety and confidence of businessinterests," "making the wage of labor sure and steady," "a due regard to the in-terests of capital invested and workingmen employed in American industries,""reform in the administration of the government," "the application of businessprinciples to public affairs," "the constant and ever varying wants of an activeand enterprising population," "a firm determination to secure to all the people ofthe land the full benefits of the best form of government ever vouchsafed to man,""the blessings of our national life," etc., etc.

Sir, what is the use of such a deluge of unmeaning words, unless it be to glossover, and, if possible, hide, the true character of the acts of the government?

Such "generalities" as these do not even "glitter." They are only the stalephrases of the demagogue, who wishes to appear to promise everything, but commitshimself to nothing. Or else they are the senseless talk of a mere political parrot,who repeats words he has been taught to utter, without knowing their meaning. Atbest, they are the mere gibberish of a man destitute of all political ideas, but whoimagines that "good government," "the general welfare," "the common interest,""the best form of government ever vouchsafed to man," etc., etc., must be verygood things, if anybody can ever find out what they are. There is nothing definite,nothing real, nothing tangible, nothing honest, about them. Yet they constituteyour entire stock in trade. In resorting to them—in holding them up to publicgaze as comprising your political creed—you assume that they have a meaning;that they are matters of overruling importance; that they require the action of anomnipotent, irresponsible, lawmaking government; that all these "interests" mustbe represented, and can be secured, only "in the halls of national legislation"; andby such political hounds as have been selected and trained, and sent there, solelythat they may bring off, to their respective masters, as much as possible of the pub-lic plunder they hold in their hands; that is, as much as possible of the earningsof all the honest wealth-producers of the country.

And when these masters count up the spoils that their hounds have thus broughthome to them, they set up a corresponding shout that "the public prosperity," "thecommon interest," and "the general welfare" have been "advanced." And thescoundrels by whom the work has been accomplished, "in the halls of national


legislation," are trumpeted to the world as "great statesmen." And you are juststupid enough to be deceived into the belief, or just knave enough to pretend tobe deceived into the belief, that all this is really the truth.

One would infer from your address that you think the people of this country in-capable of doing anything for themselves, individually; that they would all perish,but for the employment given them by that " large variety of diverse and compet-ing interests"—that is, such purely selfish schemes—as may be "persistently seek-ing recognition of their claims in the halls of national legislation," andsecure for themselves such monopolies and advantages as congress may see fit togrant them.

Instead of your recognizing the right of each and every individual to judge of,and provide for, his own well-being, according to the dictates of his own judgment,and by the free exercise of his own powers of body and mind,—so long as he in-fringes the equal rights of no other person,—you assume that fifty millions of peo-ple, who never saw you, and never will see you, who know almost nothing aboutyou, and care very little about you, are all so weak, ignorant, and degraded as tobe humbly and beseechingly looking to you—and to a few more lawmakers (socalled) whom they never saw, and never will see, and of whom they know almostnothing'—to enlighten, direct, and "control" them in their daily labors to supplytheir own wants, and promote their own happiness!

You thus assume that these fifty millions of people are so debased, mentally andmorally, that they look upon you and your associate lawmakers as their earthlygods, holding their destinies in your hands, and anxiously studying their welfare;instead of looking upon you—as most of you certainly ought to be looked upon —as a mere cabal of ignorant, selfish, ambitious, rapacious, and unprincipled men,who know very little, and care to know very little, except how you can get fame,and power, and money, by trampling upon other men's rights, and robbing themof .the fruits of their labor.

Assuming yourself to be the greatest of these gods, charged with the "welfare"of fifty millions of people, you enter upon the mighty task with all the mock solem-nity, and ridiculous grandiloquence, of a man ignorant enough to imagine that heis really performing a solemn duty, and doing an immense public service, insteadof simply making a fool of himself. Thus you say:

Fellow citizens: In the presence of this vast assemblage of my countrymen, I am about tosupplement and seal, by the oath which I shall take, the manifestation of the will of a greatand free people. In the exercise of their power and right of self-government, they have com-mitted to one of their fellow citizens a supreme and sacred trust, and he here consecrateshimself to their service. This impressive ceremony adds little to the solemn sense of respon-sibility with which I contemplate the duty I owe to all the people of the land. Nothing canrelieve me from anxiety lest by any act of mine their interests [not their rights] may suffer,and nothing is needed to strengthen my resolution to engage every faculty and effort in the

A. Letter to Grover Cleveland. 25

promotion of their welfare. [Not in "doing equal and exact justice to all men." Afterhaving once described the government as one "pledged to do equal and exact justice to allmen," you drop that subject entirely, and wander off into "interests," and "welfare," andan astonishing number of other equally unmeaning things.]

Sir, you would have no occasion to take all this tremendous labor and responsi-bility upon yourself, if you and your lawmakers would but keep your hands off the"rights" of your "countrymen." Your "countrymen" would be perfectly compe-tent to take care of their own "interests" and provide for their own "welfare" iftheir hands were not tied, and their powers crippled, by such fetters as men likeyou and your lawmakers have fastened upon them.

Do you know so little of your "countrymen," that you need to be told that theirown strength and skill must be their sole reliance for their own well-being? Orthat they are abundantly able, and willing, and anxious above all other things, tosupply their own "needs in their home life," and secure their own "welfare"? Orthat they would do it, not only without jar or friction, but as their highest duty andpleasure, if their powers were not manacled by the absurd and villainous laws youpropose to execute upon them? Are you so stupid as to imagine that puttingchains on men's hands, and fetters on their feet, and insurmountable obstacles intheir paths, is the way to supply their " needs," and promote their " welfare " ? Doyou think your " countrymen" need to be told, either by yourself, or by any suchgang of ignorant or unprincipled men as all lawmakers are, what to do, and whatnot to do, to supply their own " needs in their home life " ? Do they not know howto grow their own food, make their own clothing, build their own houses, printtheir own books, acquire all the knowledge, and create all the wealth, they desire,without being domineered over, and thwarted in all their efforts, by any set ofeither fools or villains, who may call themselves their lawmakers? And do youthink they will never get their eyes open to see what blockheads, or impostors, youand your lawmakers are? Do they not now—at least so far as you will permitthem to do it — grow their own food, build their own houses, make their ownclothing, print their own books? Do they not make all the scientific discoveriesand mechanical inventions, by which all wealth is created? Or are all these thingsdone by "the government"? Are you an idiot, that you can talk as you do, aboutwhat you and your lawmakers are doing to provide for the real wants, and promotethe real "welfare," of fifty millions of people?

SECTION XL

But perhaps the most brilliant idea in your whole address, is this:

Every citizen owes the country a vigilant watch and close scrutiny of its public servants,and a fair and reasonable estimate of their fidelity and usefulness. Thus is the people's will


impressed upon the whole framework of our civil policy, municipal, State, and federal; andthis is the price of our liberty, and the inspiration of our faith in the republic.

The essential parts of this declaration are these :" Every citizen owes the country a vigilant watch and close scrutiny of its public ser-

vants, and this is the price of our liberty."Who are these "public servants," that need all this watching? Evidently they

are the lawmakers, and the lawmakers only. They are not only the chief "publicservants," but they are absolute masters of all the other "public servants." Theseother "public servants," judicial and executive,—the courts, the army, the navy,the collectors of taxes, etc., etc.,—have no function whatever, except that of sim-ple obedience to the lawmakers. They are appointed, paid, and have their dutiesprescribed to them, by the lawmakers; and are made responsible only to the law-makers. They are mere puppets in the hands of the lawmakers. Clearly, then,the lawmakers are the only ones we have any occasion to watch.

Your declaration, therefore, amounts, practically, to this, and this only:Every citizen owes the country a vigilant watch and close scrutiny of ITS LA W-

MAKERS, and this is the price of our liberty.Sir, your declaration is so far true, as that all the danger to " our liberty" comes

solely from the lawmakers.And why are the lawmakers dangerous to "our liberty"? Because it is a natu-

ral impossibility that they can make any law—that is, any law of their owninvention—that does not violate "our liberty."

The law of justice is the one only law that does not violate " our liberty." And thatis not a law that was made by the lawmakers. It existed before they were born,and will exist after they are dead. It derives not one particle of its authorityfrom any commands of theirs. It is, therefore, in no sense, one of their laws. Onlylaws of their own invention are their laws. And as it is naturally impossible thatthey can invent any law of their own, that shall not conflict with the law ofjustice, it is naturally impossible that they can make a law—that is, a law of theirown invention — that shall not violate " our liberty."

The law of justice is the precise measure, and the only precise measure, of therightful "liberty" of each and every human being. Any law—made by law-makers—that should give to any man more liberty than is given him by the lawof justice, would be a license to commit an injustice upon one or more other per-sons. On the other hand, any law —made by lawmakers—that should take fromany human being any "liberty" that is given him by the law of justice, would betaking from him a part of his own rightful "liberty."

Inasmuch, then, as every possible law, that can be made by lawmakers, musteither give to some one or more persons more "liberty" than the law of nature —or the law of justice—gives them, and more "liberty" than is consistent with thenatural and equal "liberty" of all other persons; or else must take from some one


or more persons some portion of that "liberty" which the law of nature—or thelaw of justice—gives to every human being, it is inevitable that every law, thatcan be made by lawmakers, must be a violation of the natural and rightful " lib-erty" of some one or more persons.

Therefore the very idea of a law-making government—a government that is tomake laws of its own invention—is necessarily in direct and inevitable conflictwith "our liberty." In fact, the whole, sole, and only real purpose of any lawmak-ing government whatever is to take from some one or more persons their "liberty."Consequently the only way in which all men can preserve their " liberty," is not tohave any lawmaking government at all.

We have been told, time out of mind, that " Eternal vigilance is the price of lib-erty." But this admonition, by reason of its indefiniteness, has heretofore fallendead upon the popular mind. It, in reality, tells us nothing that we need to know,to enable us to preserve "our liberty." It does not even tell us what "our liberty"is, or how, or when, or through whom, it is endangered, or destroyed.

1. It does not tell us that individual liberty is the only human liberty. It doesnot tell us that "national liberty," "political liberty," "republican liberty,""democratic liberty," "constitutional liberty," "liberty under law," and all theother kinds of liberty that men have ever invented, and with which tyrants, aswell as demagogues, have amused and cheated the ignorant, are not liberty at all,unless in so far as they may, under certain circumstances, have chanced to con-tribute something to, or given some impulse toward, individual liberty.

2. It does not tell us that individual liberty means freedom from all compulsionto do anything whatever, except what justice requires us to do, and freedom to doeverything whatever that justice permits us to do. It does not tell us that indi-vidual liberty means freedom from all human restraint or coercion whatsoever, solong as we " live honestly, hurt nobody, and give to every one his due."

3. It does not tell us that there is any science of liberty; any science, whichevery man may learn, and by which every man may know, what is, and what isnot, his own, and every other man's, rightful "liberty."

4. It does not tell us that this right of individual liberty rests upon an immu-table, natural principle, which no human power can make, unmake, or alter; northat all human authority, that claims to set it aside, or modify it, is nothing butfalsehood, absurdity, usurpation, tyranny, and crime.

5. It does not tell us that this right of individual liberty is a natural, inherent,inalienable right; that therefore no man can part with it, or delegate it to another, if hewould; and that, consequently, all the claims that have ever been made, by govern-ments, priests, or any other powers, that individuals have voluntarily surrendered,or " delegated," their liberty to others, are all impostures and frauds.

6. It does not tell us that all human laws, so called, and all human lawmaking,— all commands, either by one man, or any number of men, calling themselves a


government, or by any other name—requiring any individual to do this, or for-bidding him to do that—so long as he "lives honestly, hurts no one, and gives toevery one his due"—are all false and tyrannical assumptions of a right of authorityand dominion over him; are all violations of his natural, inherent, inalienable,rightful, individual liberty; and, as such, are to be resented and resisted to theutmost, by every one who does not choose to be a slave.

7. And, finally, it does not tell us that all lawmaking governments whatsoever—whether called monarchies, aristocracies, republics, democracies, or by any othername—are all alike violations of men's natural and rightful liberty.

We can now see why lawmakers are the only enemies, from whom " our liberty "has anything to fear, or whom we have any occasion to watch. They are to bewatched, because they claim the right to abolish justice, and establish injustice inits stead; because they claim the right to command us to do things which justicedoes not require us to do, and to forbid us to do things which justice permits us todo; because they deny our right to be, individually, and absolutely, our own mastersand owners, so long as we obey the one law of justice towards all other persons;because they claim to be our masters, and that their commands, as such, are au-thoritative and binding upon us as law; and that they may rightfully compel usto obey them.

"Our liberty" is in danger only from the lawmakers, because it is only throughthe agency of lawmakers, that anybody pretends to be able to take away "ourliberty." It is only the lawmakers that claim to be above all responsibility fortaking away "our liberty." Lawmakers are the only ones who are impudentenough to assert for themselves the right to take away "our liberty." They arethe only ones who are impudent enough to tell us that we have voluntarily surren-dered "our liberty" into their hands. They are the only ones who have the inso-lent condescension to tell us that, in consideration of our having surrendered intotheir hands "our liberty," and all our natural, inherent, inalienable rights as hu-man beings, they are disposed to give us, in return, "good government," "the bestform of government ever vouchsafed to man"; to "protect" us, to provide for our" welfare," to promote our " interests," etc., etc.

And yet you are just blockhead enough to tell us that if "Every citizen"—fiftymillions and more of them—will but keep "a vigilant watch and close scrutiny"upon these lawmakers, " our liberty " may be preserved!

Don't you think, sir, that you are really the wisest man that ever told " a greatand free people" how they could preserve "their liberty"?

To be entirely candid, don't you think, sir, that a surer way of preserving " ourliberty" would be to have no lawmakers at all?


SECTION XII.

But, in spite of all I have said, or, perhaps, can say, you will probably persist inyour idea that the world needs a great deal of lawmaking; that mankind in gene-ral are not entitled to have any will, choice, judgment, or conscience of their own ;that, if not very wicked, they are at least very ignorant and stupid; that they knowvery little of what is for their own good, or how to promote their own " interests,""welfare," or "prosperity"; that it is therefore necessary that they should be putunder guardianship to lawmakers; that these lawmakers, being a very superior raceof beings,—wise beyond the rest of their species,—and entirely free from all thoseselfish passions which tempt common mortals to do wrong,—must be intrustedwith absolute and irresponsible dominion over the less favored of their kind; mustprescribe to the latter, authoritatively, what they may, and may not, do; and, ingeneral, manage the affairs of this world according to their discretion, free of allaccountability to any human tribunals.

And you seem to be perfectly confident that, under this absolute and irresponsi-ble dominion of the lawmakers, the affairs of this world will be rightly managed;that the "interests," "welfare," and "prosperity" of "agreat and free people" willbe properly attended to; that "the greatest good of the greatest number" will beaccomplished, etc., etc.

And yet you hold that all this lawmaking, and all this subjection of the greatbody of the people to the arbitrary, irresponsible dominion of the lawmakers, willnot interfere at all with "our liberty," if only "every citizen" will but keep "a vig-ilant watch and close scrutiny " of the lawmakers.

Well, perhaps this is all so; although this subjection to the arbitrary will of anyman, or body of men, whatever, and under any pretence whatever, seems, on theface of it, to be much more like slavery, than it does like " liberty."

If, therefore, you really intend to continue this system of lawmaking, it seemsindispensable that you should explain to us what you mean by the term "ourliberty."

So far as your address gives us any light on the subject, you evidently mean, bythe term "our liberty," just such, and only such, "liberty," as the lawmakers maysee fit to allow us to have.

You seem to have no conception of any other "liberty" whatever.You give us no idea of any other "liberty" that we can secure to ourselves, even

though "every citizen"—fifty millions and more of them — shall all keep "a vigi-lant watch and close scrutiny" upon the lawmakers.

Now, inasmuch as the human race always have had all the "liberty" their law-makers have seen fit to permit them to have; and inasmuch as, under your systemof lawmaking, they always will have as much "liberty" as their lawmakers shallsee fit to give them; and inasmuch as you apparently concede the right, which the


lawmakers have always claimed, of killing all those who are not content with somuch "liberty" as their lawmakers have seen fit to allow them,—it seems veryplain that you have not added anything to our stock of knowledge on the subjectof "our liberty."

Leaving us thus, as you do, in as great darkness as we ever were, on this all-important subject of "our liberty," I think you ought to submit patiently to alittle questioning on the part of those of us, who feel that all this lawmaking —each and every separate particle of it—is a violation of "our liberty."

Will you, therefore, please tell us whether any, and, if any, how much, of thatnatural liberty—of that natural, inherent, inalienable, individual right to liberty—with which it has generally been supposed that God, or Nature, has endowed everyhuman being, will be left to us, if the lawmakers are to continue, as you wouldhave them do, the exercise of their arbitrary, irresponsible dominion over us ?

Are you prepared to answer that question?No. You appear to have never given a thought to any such question as that.I will therefore answer it for you.And my answer is, that from the moment it is conceded that any man, or body

of men, whatever,, under any pretence whatever, have the right to make laws of theirown invention, and compel other men to obey them, every vestige of man's naturaland rightful liberty is denied him.

That this is so is proved by the fact that all a man's natural rights stand uponone and the same basis, viz., that they are the gift of God, or Nature, to him, as anindividual, for his own uses, and for his own happiness. If any one of these naturalrights may be arbitrarily taken from him by other men, all of them may be takenfrom him on the same reason. No one of these rights is any more sacred or invi-olable in its nature, than are all the others. The denial of any one of these rightsis therefore equivalent to a denial of all the others. The violation of any one ofthese rights, by lawmakers, is equivalent to the assertion of a right to violate allof them.

Plainly, unless all a man's natural rights are inviolable by lawmakers, none ofthem are. It is an absurdity to say that a man has any rights of his own, if othermen, whether calling themselves a government, or by any other name, have theright to take them from him, without his consent. Therefore the very idea of alawmaking government necessarily implies a denial of all such things as individualliberty, or individual rights.

From this statement it does not follow that every lawmaking government will,in practice, take from every man all his natural rights. It will do as it pleasesabout it. It will take some, leaving him to enjoy others, just as its own pleasureor discretion shall dictate at the time. It would defeat its own ends, if it werewantonly to take away all his natural rights, — as, for example, his right to live,and to breathe,—for then he would be dead, and the government could then get


nothing more out of him. The most tyrannical government will, therefore, if ithave any sense, leave its victims enough liberty to enable them to provide for theirown subsistence, to pay their taxes, and to render such military or other service asthe government may have need of. But it will do this for its own good, and not fortheirs. In allowing them this liberty, it does not at all recognize their right to it,but only consults its own interests.

Now, sir, this is the real character of the government of the United States, as itis of all other lawmaking governments. There is not a single human right, whichthe government of the United States recognizes as inviolable. It tramples uponany and every individual right, whenever its own will, pleasure, or discretion shallso dictate. It takes men's property, liberty, and lives whenever it can serve itsown purposes by doing so.

All these things prove that the government does not exist at all for the protec-tion of men's rights; but that it absolutely denies to the people any rights, or anyliberty, whatever, except such as it shall see fit to permit them to have for the timebeing. It virtually declares that it does not itself exist at all for the good of thepeople, but that the people exist solely for the use of the government.

All these things prove that the government is not one voluntarily establishedand sustained by the people, for the protection of their natural, inherent, individualrights, but that it is merely a government of usurpers, robbers, and tyrants, whoclaim to own the people as their slaves, and claim the right to dispose of them, andtheir property, at their (the usurpers') pleasure or discretion.

Now, sir, since you may be disposed to deny that such is the real character ofthe government, I propose to prove it, by evidences so numerous and conclusivethat you cannot dispute them.

My proposition, then, is, that there is not a single natural, human right, that thegovernment of the United States recognizes as inviolable; that there is not a singlenatural, human right, that it hesitates to trample under foot, whenever it thinks itcan promote its own interests by doing so.

The proofs of this proposition are so numerous, that only a few of the most im-portant can here be enumerated.

1. The government does not even recognize a man's natural right to his ownlife. If it have need of him, for the maintenance of its power, it takes him, againsthis will (conscripts him), and puts him before the cannon's mouth, to be blown inpieces, as if he were a mere senseless thing, having no more rights than if he werea shell, a canister, or a torpedo. It considers him simply as so much senselesswar material, to be consumed, expended, and destroyed for the maintenance of itspower. It no more recognizes his right to have anything to say in the matter, thanif he were but so much weight of powder or ball. It does not recognize him at allas a human being, having any rights whatever of his own, but only as an instru-ment, a weapon, or a machine, to be used in killing other men.


2. The government not only denies a man's right, as a moral human being, tohave any will, any judgment, or any conscience of his own, as to whether he him-self will be killed in battle, but it equally denies his right to have any will, anyjudgment, or any conscience of his own, as a moral human being, as to whether heshall be used as a mere weapon for killing other men. If he refuses to kill any, orall, other men, whom it commands him to kill, it takes his own life, as unceremo-niously as if he were but a dog.

Is it possible to conceive of a more complete denial of all a man-'s natural, humanrights, than is the denial of his right to have any will, judgment, or conscience ofhis own, either as to his being killed himself, or as to his being used as a mereweapon for killing other men?

3. But in still another way, than by its conscriptions, the government denies aman's right to any will, choice, judgment, or conscience of his own, in regard eitherto being killed himself, or used as a weapon in its hands for killing other people.

If, in private life, a man enters into a perfectly voluntary agreement to work foranother, at some innocent and useful labor, for a day, a week, a month, or a year,he cannot lawfully be compelled to fulfil that contract; because such compulsionwould be an acknowledgment of his right to sell his own liberty. And this iswhat no one can do.

This right of personal liberty is inalienable. No man can sell it, or transfer itto another; or give to another any right of arbitrary dominion over him. All con-tracts for such a purpose are absurd and void contracts, that no man can rightfullybe compelled to fulfil.

But when a deluded or ignorant young man has once been enticed into a con-tract to kill others, and to take his chances of being killed himself, in the serviceof the government, for any given number of years, the government holds that sucha contract to sell his liberty, his judgment, his conscience, and his life, is a validand binding contract; and that if he fails to fulfil it, he may rightfully be shot.

All these things prove that the government recognizes no right of the individual,to his own life, or liberty, or to the exercise of his own will, judgment, or conscience,in regard to his killing his fellow-men, or to being killed himself, if the govern-ment sees fit to use him as mere war material, in maintaining its arbitrary domin-ion over other human beings.

4. The government recognizes no such thing as any natural right of property,on the part of individuals.

This is proved by the fact that it takes, for its own uses, any and every man'sproperty—when it pleases, and as much of it as it pleases—without obtaining, oreven asking, his consent.

This taking of a man's property, without his consent, is a denial of his right ofproperty; for the right of property is the right of supreme, absolute, and irrespon-sible dominion over anything that is naturally a subject of property,—that is, of


ownership. It is a right against all the world. And this right of property—thisright of supreme, absolute, and irresponsible dominion over anything that is natu-rally a subject of ownership—is subject only to this qualification-, viz., that eachman must so use his own, as not to injure another.

If A uses his own property so as to injure the person or property of B, his ownproperty may rightfully be taken to any extent that is necessary to make repara-tion for the wrong he has done.

This is the only qualification to which the natural right of property is subject.When, therefore, a government takes a man's property, for its own support, or

for its own uses, without his consent, it practically denies his right of property alto-gether ; for it practically asserts that its right of dominion is superior to his.

No man can be said to have any right of property at all, in any thing—that is,any right of supreme, absolute, and irresponsible dominion over any thing—ofwhich any other men may rightfully deprive him at their pleasure.

Now, the government of the United States, in asserting its right to take at pleas-ure the property of individuals, without their consent, virtually denies their right ofproperty altogether, because it asserts that its right of dominion over it, is supe-rior to theirs.

5. The government denies the natural right of human beings to live on thisplanet. This it does by denying their natural right to those things that are indis-pensable to the maintenance of life. It says that, for every thing necessary to themaintenance of life, they must have a special permit from the government; andthat the government cannot be required to grant them any other means of livingthan it chooses to grant them.

All this is shown as follows, viz.:The government denies the natural right of individuals to take possession of

wilderness land, and hold and cultivate it for their own subsistence.It asserts that wilderness land is the property of the government; and that' indi-

viduals have no right to take possession of, or cultivate, it, unless by special grantof the government. And if an individual attempts to exercise this natural right,the government punishes him as a trespasser and' a criminal.

The government has no more right to claim the ownership of wilderness lands,than it has to claim the ownership of the sunshine, the water, or the atmosphere.And it has no more right to punish a man for taking possession of wilderness land,and cultivating it, without the consent of the government, than it has to punishhim for breathing the air, drinking the water, or enjoying the sunshine, without aspecial grant from the government.

In thus asserting the government's right of property in wilderness land, and indenying men's right to take possession of and cultivate it, except on first obtaininga grant from the government,—which grant the government may withhold if itpleases,—the government plainly denies the natural right of men to live on this


planet, by denying their natural right to the means that are indispensable to theirprocuring the food that is necessary for supporting life.

In asserting its right of arbitrary dominion over that natural wealth that is in-dispensable to the support of human life, it asserts its right to withhold that wealthfrom those whose lives are dependent upon it. In this way it denies the naturalright of human beings to live on the planet. It asserts that government owns theplanet, and that men have no right to live on it, except by first getting a permitfrom the government.

This denial of men's natural right to take possession of and cultivate wildernessland is not altered at all by the fact that the government consents to sell as muchland as it thinks it expedient or profitable to sell; nor by the fact that, in certaincases, it gives outright certain lands to certain persons. Notwithstanding thesesales and gifts, the fact remains that the government claims the original ownershipof the lands; and thus denies the natural right of individuals to take possession ofand cultivate them. In denying this natural right of individuals, it denies theirnatural right to live on the earth; and asserts that they have no other right to lifethan the government, by its own mere will, pleasure, and discretion, may see fit togrant them.

In thus denying man's natural right to life, it of course denies every other naturalright of human beings; and asserts that they have no natural right to anything;but that, for all other things, as well as for life itself, they must depend whollyupon the good pleasure and discretion of the government.

SECTION XIII.

In still another way, the government denies men's natural right to life. Andthat is by denying their natural right to make any of those contracts with eachother, for buying and selling, borrowing and lending, giving and receiving, pro-perty, which are necessary, if men are to exist in any considerable numbers on theearth.

Even the few savages, who contrive to live, mostly or wholly, by hunting, fish-ing, and gathering wild fruits, without cultivating the earth, and almost whollywithout the use of tools or machinery, are yet, at times, necessitated to buy andsell, borrow and lend, give and receive, articles of food, if no others, as their onlymeans of preserving their lives. But, in civilized life, where but a small portionof men's labor is necessary for the production of food, and they employ themselvesin an almost infinite variety of industries, and in the production of an almost infi-nite variety of commodities, it would be impossible for them to live, if they werewholly prohibited from buying and selling, borrowing and lending, giving andreceiving, the products of each other's labor.

Yet the government of the United States—either acting separately, or jointly


with the State governments—has heretofore constantly denied, and still con-stantly denies, the natural right of the people, as individuals, to make their owncontracts, for such buying and selling, borrowing and lending, and giving andreceiving, such commodities as they produce for each other's uses.

I repeat that both the national and State governments have constantly deniedthe natural right of individuals to make their own contracts. They have donethis, sometimes by arbitrarily forbidding them to make particular contracts, andsometimes by arbitrarily qualifying the obligations of particular contracts, whenthe contracts themselves were naturally and intrinsically as just and lawful as anyothers that men ever enter into; and were, consequently, such as men have as per.feet a natural right to make, as they have to make any of those contracts which theyare permitted to make.

The laws arbitrarily prohibiting, or arbitrarily qualifying, certain contracts,that are naturally and intrinsically just and lawful, are so numerous, and so wellknown, that they need not all be enumerated here. But any and all such prohi-bitions, or qualifications, are a denial of men's natural right to make their owncontracts. They are a denial of men's right to make any contracts whatever, ex-cept such as the governments shall see fit to permit them to make.

It is the natural right of any and all human beings, who are mentally compe-tent to make reasonable contracts, to make any and every possible contract, thatis naturally and intrinsically just and honest, for buying and selling, borrowingand lending, giving and receiving, any and all possible commodities, that are nat-urally vendible, loanable, and transferable, and that any two or more individualsmay, at any time, without force or fraud, choose to buy and sell, borrow and lend,give and receive, of and to each other.

And it is plainly only by the untrammelled exercise of this natural right, thatall the loanable capital, that is required by men's industries, can be lent and bor-rowed, or that all the money can be supplied for the purchase and sale of thatalmost infinite diversity and amount of commodities, that men are capable of pro-ducing, and that are to be transferred from the hands of the producers to those ofthe consumers.

But the government of the United States—and also the governments of theStates—utterly deny the natural right of any individuals whatever to make anycontracts whatever, for buying and selling, borrowing and lending, giving andreceiving, any and all such commodities, as are naturally vendible, loanable, andtransferable, and as the producers and consumers of such commodities may wishto buy and sell, borrow and lend, give and receive, of and to each other.

These governments (State and national) deny this natural right of buying andselling, etc., by arbitrarily prohibiting, or qualifying, all such, and so many, ofthese contracts, as they choose to prohibit, or qualify.

The prohibition, or qualification, of any one of these contracts—that are intrin-


sically just and lawful—is a denial of all individual natural right to make any ofthem. For the right to make any and all of them stands on the same grounds ofnatural law, natural justice, and men's natural rights. If a government has theright to prohibit, or qualify, any one of these contracts, it has the same right toprohibit, or qualify, all of them. Therefore the assertion, by the government, ofa right to prohibit, or qualify, any one of them, is equivalent to a denial of allnatural right, on the part of individuals, to make any of them.

The power that has been thus usurped by governments, to arbitrarily prohibitor qualify all contracts that are naturally and intrinsically just and lawful, hasbeen the great, perhaps the greatest, of all the instrumentalities, by which, in this,as in other countries, nearly all the wealth, accumulated by the labor of the many,has been, and is now, transferred into the pockets of the few.

It is by this arbitrary power over contracts, that the monopoly of money is sustained.Few people have any real perception of the power, which this monopoly gives tothe holders of it, over the industry and traffic of all other persons. And the oneonly purpose of the monopoly is to enable the holders of it to rob everybody elsein the prices of their labor, and the products of their labor.

The theory, on which the advocates of this monopoly attempt to justify it, issimply this : That it is not at all necessary that money should be a bona Jide equivalentof the labor or property that is to be bought with it; tha t if the government will butspecially license a small amount of money, and prohibit all other money, the hold-ers of the licensed money will then be able to buy with it the labor and propertyof all other persons for a half, a tenth, a hundredth, a thousandth, or a millionth,of what such labor and property are really and truly worth.

David A. Wells, one of the most prominent—perhaps at this time, the mostprominent—advocate of the monopoly, in this country, states the theory thus :

A three-cent piece, if it could be divided into a sufficient number of pieces, with each piececapable of being handled, would undoubtedly, suffice for doing all the business of the countryin the way of facilitating exchanges, if no other better instrumentality was available. —NewYork Herald, February 13,1875.

He means here to say, that " a three-cent piece " contains as much real, true, andnatural market value, as it would be necessary that all the money of the countryshould have, if the government would but prohibit all other money; tha t is, if the gov-ernment, by its arbitrary legislative power, would but make all other and bettermoney unavailable.

And this is the theory, on which John Locke, David Hume, Adam Smith, DavidRicardo, J. R. McCulloch, and John Stuart Mill, in England, and Amasa Walker,Charles H. Carroll, Hugh McCulloch, in this country, and all the other conspicuousadvocates of the monopoly, both in this country and in England, have attemptedto justify it. They have all held that it was not necessary that money should be


a bona Jide equivalent of the labor or property to be bought with it; but that, bythe prohibition of all other money, the holders of a comparatively worthless amountof licensed money would be enabled to buy, at their own prices, the labor and pro-perty of all other men.

And this is the theory on which the governments of England and the UnitedStates have always, with immaterial exceptions, acted, in prohibiting all but suchsmall amounts of money as they (the governments) should specially license. Andit is the theory upon which they act now. And it is so manifestly a theory of purerobbery, that scarce a word can be necessary to make it more evidently so than itnow is.

But inasmuch as your mind seems to be filled with the wildest visions of theexcellency of this government, and to be strangely ignorant of its wrongs; andinasmuch as this monopoly of money is, in its practical operation, one of thegreatest—possibly the greatest—of all these wrongs, and the one that is most re-lied upon for robbing the great body cf the people, and keeping them in povertyand servitude, it is plainly important that you should have your eyes opened onthe subject. I therefore submit, for your consideration, the following self-evidentpropositions:

1. That to make all traffic just and equal, it is indispensable that, in each sepa-rate purchase and sale, the money paid should be a bona Jide equivalent of thelabor or property bought with it.

Dare you, or any other man, of common sense and common honesty, dispute thetruth of that proposition ? If not, let us consider that principle established. Itwill then serve as one of the necessary and infallible guides to the true settlementof all the other questions that remain to be settled.

2. That so long as no force or fraud is practised by either party, the partiesthemselves, to each separate contract, have the sole, absolute, and unqualified rightto decide for themselves, what money, and how much of it, shall be considered a bonaJide equivalent of the labor or property that is to be exchanged for it. All this isnecessarily implied in the natural right of men to make their own contracts, forbuying and selling their respective commodities.

Will you dispute the truth of that proposition ?3. That any one man, who has an honest dollar, of any kind whatsoever, has as

perfect a right, as any other man can have, to offer it in the market, in competi-tion with any and all other dollars, in exchange for such labor or property as maybe in the market for sale.

Will you dispute the truth of that proposition ?4. That where no fraud is practised, every person, who is mentally competent

to make reasonable contracts, must be presumed to be as competent to judge ofthe value of the money that is offered in the market, as he is to judge of the valueof all the other commodities that are bought and sold for money.


Will you dispute the truth of that proposition ?5. That the free and open market, in which all honest money and all honest

commodities are free to be given and received in exchange for each other, is thetrue, final, absolute, and only test of the true and natural market value of allmoney, as of all the other commodities that are bought and sold for money.

Will you dispute the truth of that proposition ?6. That any prohibition, by a government, of any such kind or amount of

money—provided it be honest in itself—as the parties to contracts may volunta-rily agree to give and receive in exchange for labor or property, is a palpable vio-lation of their natural right to make their own contracts, and to buy and sell theirlabor and property on such terms as they may find to be necessary for the supplyof their wants, or may think most beneficial to their interests.

Will you dispute the truth of that proposition ?7. That any government, that licenses a small amount of an article of such

universal necessity as money, and that gives the control of it into a few hands,selected by itself, and then prohibits any and all other money—that is intrinsi-cally honest and valuable—palpably violates all other men's natural right to maketheir own contracts, and infallibly proves its purpose to be to enable the few hold-ers of the licensed money to rob all other persons in the prices of their labor andproperty.

Will you dispute the truth of that proposition ?Are not all these propositions so self-evident, or so easily demonstrated, that

they cannot, with any reason, be disputed ?If you feel competent to show the falsehood of any one of them, I hope you

will attempt the task.

SECTION XIV.

If, now, you wish to form some rational opinion of the extent of the robberypractised in this country, by the holders of this monopoly of money, you have onlyto look at the following facts.

There are, in this country, I think, at least twenty-five millions of persons, maleand female, sixteen years old, and upwards, mentally and physically capable ofrunning machinery, producing wealth, and supplying their own needs for an inde-pendent and comfortable subsistence.

To make their industry most effective, and to enable them, individually, to putinto their own pockets as large a portion as possible of their own earnings, they need,on an average, one thousand dollars each of money capital. Some need one, two,three, or five hundred dollars, others one, two, three, or five thousand. Thesepersons, then, need, in the aggregate, twenty-five thousand millions of dollars ($25,-000,000,000), of money capital.

A Letter to Grower Cleveland. 39

They need all this money capital to enable them to buy the raw materials uponwhich to bestow their labor, the implements and machinery with which to labor,and their means of subsistence while producing their goods for the market.

Unless they can get this capital, they must all either work at a disadvantage, ornot work at all. A very large portion of them, to save themselves from starvation,have no alternative but to sell their labor to others, at just such prices as theseothers choose to pay. And these others choose to pay only such prices as are farbelow what the laborers could produce, if they themselves had the necessary capi-tal to work "with.

But this needed capital your lawmakers arbitrarily forbid them to have; andfor no other reason than to reduce them to the condition of servants; and sub-ject them to all such extortions as their employers—the holders of the privilegedmoney—may choose to practise u.pon them.

If, now, you ask me where these twenty-live thousand millions of dollars ofmoney capital, which these laborers need, are to come from, I answer:

Theoretically there are, in this country, fifty thousand millions of dollars ofmoney capital ($50,000,000,000) —or twice as much as I have supposed these labor-ers to need—NOW LYING IDLE 1 And it is lying idle, solely because the circulation ofit, as money, is prohibited by the lawmakers.

If you ask how this can be, I will tell you.Theoretically, every dollar's worth of "material property, that is capable of being

taken by law, and applied to the payment of the owner's debts, is capable of beingrepresented by a promissory note, that shall circulate as money.

But taking all this material property at only half its actual value, it is still capa-ble of supplying the twenty-five thousand millions of dollars — or one thousand dol-lars each—which these laborers need.

Now, we know — because experience has taught us—that solvent promissorynotes, made payable in coin on demand, are the best money that mankind haveever had; (although probably not the best they ever will have).

To make a note solvent, and suitable for circulation as money, it is only neces-sary that it should be made payable in coin on demand, and be issued by a person,or persons, who are known to have in their hands abundant material property,that can be taken by lawT, and applied to the payment of the note, with all costsand damages for non-payment on demand.

Theoretically, I repeat, all the material property in the country, that can be takenby law, and applied to the payment of debts, can be used as banking capital; andbe represented by promissory notes, made payable in coin on demand. And, prac-tically, so much of it can be used as banking capital as may be required for supply-ing all the notes that can be kept in circulation as money.

Although these notes are made legally payable in coin on demand, it is seldomthat such payment is demanded, if only it be publicly known that the notes are solvent:


that is, if it be publicly known that they are issued by persons who have so muchmaterial property, that can be taken by law, and sold, as may be necessary to bringthe coin that is needed to pay the notes. In such cases, the notes are preferred tothe coin, because they are so much more safe and convenient for handling, count-ing, and transportation, than is the coin; and also because we can have so manytimes more of them. ?

These notes are also a legal tender, to the banks that issue them, in payment ofthe notes discounted; that is, in payment of the notes given by the borrowersto the banks. And, in the ordinary course of things, all the notes, issued by thebanks for circulation, are wanted, and come back to the banks, in payment of thenotes discounted; thus saving all necessity for redeeming them with coin, exceptin rare cases. For meeting these rare cases, the banks find it necessary to keep onhand small amounts of coin; probably not more than one per cent, of the amountof notes in circulation.

As the, notes discounted have usually but a short time to run,—say three monthson an average, — the bank notes issued for circulation will all come back, on anaverage, once in three months, and be redeemed by the bankers, by being acceptedin payment of the notes discounted.

Then the bank notes will be re-issued, by discounting new notes, and will gointo circulation again; to be again brought back, at the end of another threemonths, and redeemed, by being accepted in payment of the new notes discounted.

In this way the bank notes will be continually re-issued, and redeemed, in thegreatest amounts that can be kept in circulation long enough to earn such anamount of interest as will make it an object for the bankers to issue them.

' Each of these notes, issued for circulation, if known to be solvent, will alwayshave the same value in the market, as the same nominal amount of coin. Andthis value is a just one, because the notes are in the nature of a lien, or mortgage,upon so much property of the bankers as is necessary to pay the notes, and as canbe taken by law, and sold, and the proceeds applied to their payment.

There is no danger that any more of these notes will be issued than will bewanted for buying and selling property at its true and natural market value, re-latively to coin; for as the notes are all made legally payable in coin on demand, ifthey should ever fall below the value of coin in the market, the holders of themwill at once return them to the banks, and demand coin for them; and thus takethem out of circulation.

The bankers, therefore, have no motive for issuing more of them than will re-main long enough in circulation, to earn so much interest as will make it an objectto issue them; the only motive for issuing them being to draw interest on themwhile they are in circulation.

The bankers readily find how many are wanted for circulation, by the timethose issued remain in circulation, before coming back for redemption. If they


come back immediately, or very quickly, after being issued, the bankers know thatthey have over-issued, and that they must therefore pay in coin—to their incon-venience, and perhaps loss—notes that would otherwise have remained in circula-tion long enough to earn so much interest as would have paid for issuing them;and would then have come back to them in payment of notes discounted, insteadof coming back on a demand for redemption in coin.

Now, the best of all possible banking capital is real estate. It is the best, be-cause it is visible, immovable, and indestructible. It cannot, like coin, be re-moved, concealed, or carried out of the country. And its aggregate value, in allcivilized countries, is probably a hundred times greater than the amount of coin incirculation. It is therefore capable of furnishing a hundred times as much moneyas we can have in coin.

The owners of this real estate have the greatest inducements to use it as bankingcapital, because all the banking profit, over and above expenses, is a clear profit;inasmuch as the use of the real estate as banking capital does not interfere at allwith its use for other purposes.

Farmers have a double, and much more than a double, inducement to use theirlands as banking capital; because they not only get a direct profit from the loanof their notes, but, by loaning them, they furnish the necessary capital for thegreatest variety of manufacturing purposes. They thus induce a much larger por-tion of the people, than otherwise would, to leave agriculture, and engage in me-chanical employments; and thus become purchasers, instead of producers, ofagricultural commodities. They thus get much higher prices for their agriculturalproducts, and also a much greater variety and amount of manufactured commodi-ties in exchange.

The amount of money, capable of being furnished by this system, is so great thatevery man, woman, and child, who is worthy of credit, could get it, and do busi-ness for himself, or herself — either singly, or in partnerships — and be under nonecessity to act as a servant, or sell his or her labor to others. All the great es-tablishments, of every kind, now in the hands of a few proprietors, but employinga great number of wage laborers, would be broken up; for few, or no persons,who could hire capital, and do business for themselves, would consent to labor forwages for another.

The credit furnished by this system would always be stable; for the system isprobably capable of furnishing, at all times, all the credit, and all the money, thatcan be needed. It would also introduce a substantially universal system of cashpayments. Everybody, who could get credit at all, would be able to get it atbank, in money. With the money, he would buy everything he needed for cash.He would also sell everything for cash; for when everybody buys for cash, every-body sells for cash; since buying for cash, and selling for cash, are necessarily oneand the same thing.


We should, therefore, never have another crisis, panic, revulsion of credit, stag-nation of industry, or fall of prices; for these are all caused by the lack of money,and the consequent necessity of buying and selling on credit; whereby the amountof indebtedness becomes so great, so enormous, in fact, in proportion to the amountof money extant, with which to meet it, that the whole system of credit breaksdown; to the ruin of everybody, except the few holders of the monopoly of money,who reap a harvest in the fall of prices, and the consequent bankruptcy of every-body who is dependent on credit for his means of doing business.

It would be inadmissible for me, in this letter, to occupy the space that wouldbe necessary, to expose all the false, absurd, and ridiculous pretences, by which theadvocates of the monopoly of money have attempted to justify it. The only realargument they ever employed has been that, by means of the monopoly, the fewholders of it were enabled to rob everybody else in the prices of their labor andproperty.

And our governments, State and national, have hitherto acted together in main-taining this monopoly, in flagrant violation of men's natural right to make theirown contracts, and in flagrant violation of the self-evident truth, that, to make alltraffic just and equal, it is indispensable that the money paid should be, in allcases, a bonajide equivalent of the labor or property that is bought with it.

The holders of this monopoly now ruleoand rob this nation; and the government,in all its branches, is simply their tool. And being their tool for this giganticrobbery, it is equally their tool for all the lesser robberies, to which it is supposedthat the people at large can be made to submit.

SECTION XV.

But although the monopoly of money is one of the most glaring violations ofmen's natural right to make their own contracts, and one of the most effective—perhaps the most effective—for enabling a few men to rob everybody .else, andfor keeping the great body of the people in poverty and servitude, it is not theonly one that our government practises, nor the only one that has the same robberyin view.

The so-called taxes or duties, which the government levies upon imports, are apractical violation both of men's natural right of property, and of their naturalright to make their own contracts.

A man has the same natural right to traffic with another, who lives on the oppo-site side of the globe, as he has to traffic with his next-door neighbor. And anyobstruction, price, or penalty, interposed by the government, to the exercise ofthat right, is a practical violation of the right itself.

The ten, twenty, or fifty per cent, of a man's property, which is taken from him,for the reason that he purchased it in a foreign country, must be considered either


as the price he is required to pay for the privilege of buying property in that coun-try, or else as a penalty for having exercised his natural right of buying it in thatcountry. Whether it be considered as a price paid for a privilege, or a penalty forhaving exercised a natural right, it is a violation both of his natural right of pro-perty, and of his natural right to make a contract in that country.

In short, it is nothing but downright robbery.And when a man seeks to avoid this robbery, by evading the government robbers

who are lying in wait for him,—that is, the so-called revenue officers,—whom he hasas perfect a right to evade, as he has to evade any other robbers, who may be lyingin wait for him,—the seizure of his whole property,—instead of the ten, twenty,or fifty per cent, that would otherwise have been taken from him, — is not merelyadding so much to the robbery itself, but is adding insult to the robbery. It ispunishing a man as a criminal, for simply trying to save his property fromrobbers.

But it will be said that these taxes or duties are laid to raise revenue for thesupport of the government.

Be it so, for the sake of the argument. All taxes, levied upon a man's propertyfor the support of government, without his consent, are mere robbery; a violationof his natural right of property. And when a government takes ten, twenty, orfifty per cent, of a man's property, for the reason that he bought it in a foreigncountry, such taking is as much a violation of his natural right of property, or ofhis natural right to purchase property, as is the taking of property which he hashimself produced, or which he has bought in his own village.

A man's natural right of property, in a commodity he has bought in a foreigncountry, is intrinsically as sacred and inviolable as it is in a commodity producedat home. The foreign commodity is bought with the commodity produced athome; and therefore stands on the same footing as the commodity produced athome. And it is a plain violation of one's right, for a government to make anydistinction between them.

Government assumes to exist for the impartial protection of all rights of pro-perty. If it really exists for that purpose, it is plainly bound to make each kindof property pay its proper proportion, and only its proper proportion, of the costof protecting all kinds. To levy upon a few kinds the cost of protecting all, is anaked robbery of the holders of those few kinds, for the benefit of the holders of allother kinds.

But the pretence that heavy taxes are levied upon imports, solely, or mainly, forthe support of government, while light taxes, or no taxes at all, are levied uponproperty at home, is an utterly false pretence. They are levied upon the importedcommodity, mainly, if not solely, for the purpose of enabling the producers ofcompeting home commodities to extort from consumers a higher price than thehome commodities would bring in free and open market. And this additional


price is sheer robbery, and is known to be so. And the amount of this robbery—which goes into the pockets of the home producers — is five, ten, twenty, or fiftytimes greater than the amount that goes into the treasury, for the support of thegovernment, according as the amount of the home commodities is five, ten, twenty,or fifty times greater than the amount of the imported competing commodities.

Thus the amounts that go to the support of the government, and also theamounts that go into the pockets of the home producers, in the higher prices theyget for their goods, are all sheer robberies; and nothing else.

But it will be said that the heavy taxes are levied upon the foreign commodity,not to put great wealth into a few pockets, but " to protect the home laborer againstthe competition of the pauper labor of other countries'*

This is the great argument that is relied on to justify the robbery.This argument must have originated with the employers of home labor, and not

with the home laborers themselves.The home laborers themselves could never have originated it, because they must

have seen that, so far as they were concerned, the object of the "protection," so-called, was, at best, only to benefit them, by robbing others who were as poor asthemselves, and who had as good a right as themselves to live by their labor. Thatis, they must have seen that the object of the "protection" was to rob the foreignlaborers, in whole, or in part, of the pittances on which they were already necessi-tated to live; and, secondly, to rob consumers at home,—in the increased pricesof the protected commodities,—when many or most of these home consumerswere also laborers as poor as themselves.

Even if any class of laborers would have been so selfish and dishonest as to wishto thus benefit themselves by injuring others, as poor as themselves, they couldhave had no hope of carrying through such a scheme, if they alone were to profitby it; because they could have had no such influence with governments, as wouldbe necessary %o enable them to carry it through, in opposition to the rightsand interests of consumers, both rich and poor, and much more numerous thanthemselves.

For these reasons it is plain that the argument originated with the employers ofhome labor, and not with the home laborers themselves.

And why do the employers of home labor advocate this robbery ? Certainly notbecause they have such an intense compassion for their own laborers, that they arewilling to rob everybody else, rich and poor, for their benefit. Nobody will sus-pect them of being influenced by any such compassion as that. But they advocateit solely because they put into their own pockets a very large portion certainly —probably three-fourths, I should judge—of the increased prices their commoditiesare thus made to bring in the market. The home laborers themselves probablyget not more than one-fourth of these increased prices.

Thus the argument for "protection" is really an argument for robbing foreign


laborers—as poor as our own—of their equal and rightful chances in our mar-kets; and also for robbing all the home consumers of the protected article—thepoor as well as the rich — in the prices they are made to pay for it. And all this isdone at the instigation, and principally for the benefit, of the employers of homelabor, and not for the benefit of the home laborers themselves.

Having now seen that this argument—of "protecting our home laborers againstthe competition of the pauper labor of other countries "—is, of itself, an utterly dis-honest argument; that it is dishonest towards foreign laborers and home consum-ers ; that it must have originated with the employers of home labor, and not withthe home laborers themselves; and that the employers of home labor, and not thehome laborers themselves, are to receive the principal profits of the robbery, let usnow see how utterly false is the argument itself.

1. The pauper laborers (if there are any such) of other countries have just asgood a right to live by their labor, and have an equal chance in our own markets,and in all the markets of the world, as have the pauper laborers, or any other la-borers, of our own country.

Every human being has the same natural right to buy and sell, of and to, anyand all other people in the world, as he has to buy and sell, of and to, the peopleof his own country. And none but tyrants and robbers deny that right. And theydeny it for their own benefit solely, and not for the benefit of their laborers.

And if a man, in our own country—either from motives of profit to himself, orfrom motives of pity towards, the pauper laborers of other countries — chooses tobuy the products of the foreign pauper labor, rather than the products of the la-borers of his own country, he has a perfect legal right to do so. And for any gov-ernment to forbid him to do so, or to obstruct his doing so, or to punish him fordoing so, is a violation of his natural right of purchasing property of whom hepleases, and from such motives as he pleases.

2. To forbid our own people to buy in the best markets, is equivalent to for-bidding them to sell the products of their own labor in the best markets; for theycan buy the products of foreign labor, only by giving the products of their own la-bor in exchange. Therefore to deny our right to buy in foreign markets, is to for-bid us to sell in foreign markets. And this is a plain violation of men's naturalrights.

If, when a producer of cotton, tobacco, grain, beef, pork, butter, cheese, or anyother commodity, in our own country, has carried it abroad, and exchanged it foriron or woolen goods, and has brought these latter home, the government seizesone-half of them, because they were manufactured abroad, the robbery committedupon the owner is the same as if the government had seized one-half of his cotton,tobacco, or other commodity, before he exported it; because the iron or woolengoods, which he purchased abroad with the products of his own home labor, are asmuch his own property, as was the commodity with which he purchased them.


Therefore the tax laid upon foreign commodities, that have been bought withthe products of our home labor, is as much a robbery of the home laborer, as thesame tax would have been, if laid directly upon the products of our home labor.It is, at best, only a robbery of one home laborer—the producer of cotton, tobacco,grain, beef, pork, butter, or cheese—for the benefit of another home laborer—theproducer of iron or woolen goods.

3. But this whole argument is a false one, for the further reason that our homelaborers do not have to compete with " the pauper labor " of any country on earth;since the actual paupers of no country on earth are engaged in producing commod-ities for export to any other country. They produce few, or no, other commoditiesthan those they themselves consume; and ordinarily not even those.

There are a great many millions of actual paupers in the world. In some of thelarge provinces of British India, for example, it is said that nearly half the popu-lation are paupers. But I think that the commodities they are producing for ex-port to other countries than their own, have never been heard of.

The term, "pauper labor," is therefore a false one. And when these robbers —the employers of home labor—talk of protecting their laborers against the compe-tition of "the pauper labor" of other countries, they do not mean that they areprotecting them against the competition of actual paupers; but only against thecompetition of that immense body of laborers, in all parts of the world, who arekept constantly on the verge of pauperism, or starvation; who have little, or no, meansof subsistence, except such as their employers see fit to give them,—which meansare usually barely enough to keep them in a condition to labor.

These are the only "pauper laborers," from whose competition our own laborersare sought to be protected. They are quite as badly off as our own laborers; andare in equal need of "protection."

What, then, is to be done? This policy of excluding foreign commodities fromour markets, is a game that all other governments can play at, as well as our own.And if it is the duty of our government to "protect" our laborers against the com-petition of "the pauper labor," so-called, of all other countries, it is equally theduty of every other government to "protect" its laborers against the competitionof the so-called "pauper labor" of all other countries. So that, according to thistheory, each nation must either shut out entirely from its markets the products ofall other countries; or, at least, lay such heavy duties upon them, as will, in somemeasure, "protect" its own laborers from the competition of the "pauper labor" ofall other countries.

This theory, then, is that, instead of permitting all mankind to supply eachother's wants, by freely exchanging their respective products with each other, thegovernment of each nation should rob the people of every other, by imposing heavyduties upon all commodities imported from them.

The natural effect of this scheme is to pit the so-called "pauper labor" of each


country against the So-called "pauper labor" of every other country; and all forthe benefit of their employers. And as it holds that so-called "pauper labor" ischeaper than free labor, it gives the employers in each country a constant motivefor reducing their own laborers to the lowest condition of poverty, consistent withtheir ability to labor at all. In other words, the theory is, that the smaller theportion of the products of labor, that is given to the laborers, the larger will be theportion that will go into the pockets of the employers.

Now, it is not a very honorable proceeding for any government to pit its own so-called "pauper laborers"—or laborers that are on the verge of pauperism—againstsimilar laborers in all other countries: and all for the sake of putting the principalproceeds of their labor into the pockets of a few employers.

To set two bodies of "pauper laborers"—or of laborers on the verge of pauper-ism—to robbing each other, for the profit of their employers, is the next thing, inpoint of atrocity, to setting them to killing each other, as governments have hereto-fore been in the habit of doing, tor the benefit of their rulers.

The laborers, who are paupers, or on the verge of'pauperism—who are destitute,or on the verge of destitution—comprise (with their families) doubtless nine-tenths,probably nineteen-twentieths, of all the people on the globe. They are not all wagelaborers. Some of them are savages, living only as savages do. Others are barba-rians, living only as barbarians do. But an immense number are mere wage labor-ers. Much the larger portion of these have been reduced to the condition of wagelaborers, by the monopoly of land, which mere bands of robbers have succeeded insecuring for themselves by military power. This is the condition of nearly all theAsiatics, and of probably one-half the Europeans. But in those portions of Europeand the United States, where manufactures have been most extensively introduced,and where, by science and machinery, great wealth has been created, the laborershave been kept in the condition of wage laborers, principally, if not wholly, by themonopoly of money. This monopoly, established in all these manufacturing coun-tries, has made it impossible for the manufacturing laborers to hire the moneycapital that was necessary to enable them to do business for themselves; and hasconsequently compelled them to sell their labor to the monopolists of money, forjust such prices as these latter should choose to give.

It is, then, by the monopoly of land, and the monopoly of money, that more thana thousand millions of the earth's inhabitants—as savages, barbarians, and wagelaborers—are kept in a state of destitution, or on the verge of destitution. Hun-dreds of millions of them are receiving, for their labor, not more than three, five,or, at most, ten cents a day.

In western Europe, and in the United States, where, within the last hundredand fifty years, machinery has been introduced, and where alone any considerablewealth is now created, the wage laborers, although they get so small a portion ofthe wealth they create, are nevertheless in a vastly better condition than are thelaboring classes in other parts of the world.


If, now, the employers of wage labor, in this country,—who are also the monopo-lists of money, — and who are ostensibly so distressed lest their own wage laborersshould suffer from the competition of the pauper labor of other countries,—havereally any of that humanity, of which they make such profession, they have beforethem a much wider field for the display of it, than they seem to desire. That isto say, they have it in their power, not only to elevate immensely the condition ofthe laboring classes in this country, but also to set an example that will be veryrapidly followed in all other countries; and the result will be the elevation of alloppressed laborers throughout the world. This they can do, by simply abolishingthe monopoly of money. The real producers of wealth, with few or no exceptions,will then be able to hire all the capital they need for their industries, and will dobusiness for themselves. They will also ~he able to hire their capital at very lowrates of interest; and will then put into their own pockets all the proceeds of theirlabor, except what they pay as interest on their capital. And this amount will betoo small to obstruct materially their rise to independence and wealth.

SECTION XVI.

But will the monopolists of money give up their monopoly? Certainly not vol-untarily. They will do it only upon compulsion. They will hold on to it as longas they own and control governments as they do now. And why will they do so?Because to give up their monopoly would be to give up their control of those greatarmies of servants—the wage laborers—from whom all their wealth is derived,and whom they can now coerce by the alternative of starvation, to labor for themat just such prices as they (the monopolists of money) shall choose to pay.

Now these monopolists of money have no plans whatever for making their "cap-ital," as they call it—that is, their money capital—their privileged money capital —profitable to themselves, otherwise than by using it to employ other men's labor. Andthey can keep control of other men's labor only by depriving the laborers them-selves of all other means of subsistence. And they can deprive them of all othermeans of subsistence only by putting it out of their power to hire the money thatis necessary to enable them to do business for themselves. And they can put itout of their power to hire money, only by forbidding all other men to lend themtheir credit, in the shape of promissory notes, to be circulated as money.

If the twenty-five or fifty thousand millions of loanable capital—promissorynotes—which, in this country, are now lying idle, were permitted to be loaned,these wage laborers would hire it, and do business for themselves, instead of labor-ing as servants for others; and would of course retain in their own hands all thewealth they should create, except what they should pay as interest for their capital.

And what is true of this country, is true of every other where civilization exists;for wherever civilization exists, land has value, and can be used as banking capi-


tal, and be made to furnish all the money that is necessary to enable the producersof wealth to hire the capital necessary for their industries, and thus relieve themfrom their present servitude to the few holders of privileged money.

Thus it is that the monopoly of money is the one great obstacle to the libera-tion of the laboring classes all over the world, and to their indefinite progress inwealth.

But we are now to show, more definitely, what relation this monopoly of moneyis made to bear to the freedom of international trade; and why it is that the hold-ers of this monopoly, in this country, demand heavy tariffs on imports, on the lyingpretence of protecting our home labor against the competition of the so-called pau-per labor of other countries.

The explanation of the whole matter is as follows.1. The holders of the monopoly of money, in each country,—more especially

in the manufacturing countries like England, the United States, and some others,—assume that the present condition of poverty, for the great mass of mankind,all over the world, is to be perpetuated forever; or at least for an indefinite period.From this assumption they infer that, if free trade between all countries is to beallowed, the so-called pauper labor of each country is to be forever pitted againstthe so-called pauper labor of every other country. Hence they infer that it is theduty of each government—or certainly of our government—to protect the so-calledpauper labor of our own country—that is, the class of laborers who are constantly onthe verge of pauperism—against the competition of the so-called pauper labor ofall other countries, by such duties on imports as will secure to our own laborers amonopoly of our own home market.

This is, on the face of it, the most plausible argument—and almost, if not really,the only argument—by which they now attempt to sustain their restrictions uponinternational trade.

If this argument is a false one, their whole case falls to the ground. That it is afalse one, will be shown hereafter.

2. These monopolists of money assume that pauper labor, so-called, is the cheap-est labor in the world; and that therefore each nation, in order to compete withthe pauper labor of all other nations, must itself have "cheap labor." In fact,"cheap labor" is, with them, the great sine qua non of all national industry. Tocompete with "cheap labor," say they, we must have "cheap labor." This is, withthem, a self-evident proposition. And this demand for "cheap labor" means, ofcourse, that the laboring classes, in this country, must be kept, as nearly as possi-ble, on a level, with the so-called pauper labor of all other countries.

Thus their whole scheme of national industry is made to depend upon "cheaplabor." And to secure "cheap labor," they hold it to be indispensable that the la-borers shall be kept constantly either in actual pauperism, or on the verge of pau-perism. And, in this country, they know of no way of keeping the laborers on the


verge of pauperism, but by retaining in their (the monopolists') own hands such amonopoly of money as will put it out of the power of the laborers to hire money,and do business for themselves; and thus compel them, by the alternative of star-vation, to sell their labor to the monopolists of money at such prices as will enablethem (the monopolists) to manufacture goods in competition with the so-calledpauper laborers of all other countries.

Let it be repeated—as a vital proposition — that the whole industrial pro-gramme of these monopolists rests upon, and implies, such a degree of poverty, onthe part of the laboring classes, as will put their labor in direct competition withthe so-called pauper labor of all other countries. So long as they (the monopolists)can perpetuate this extreme poverty of the laboring classes, in this country, theyfeel safe against all foreign competition; for, in all other things than "cheap la-bor," we have advantages equal to those of any other nation.

Furthermore, this extreme poverty, in which the laborers are to be kept, neces-sarily implies that they are to receive no larger share of the proceeds of their ownlabor, than is necessary to keep them in a condition to labor. It implies thattheir industry—which is really the national industry—is not to be carried on atall for their own benefit, but only for the benefit of their employers, the monopo-lists of money. It implies that the laborers are to be mere tools and machines inthe hands of their employers; that they are to be kept simply in running order,like other machinery; but that, beyond this, they are to have no more rights, andno more interests, in the products of their labor, than have the wheels, spindles,and other machinery, with which the work is done.

In short, this whole programme implies that the laborers—the real producers ofwealth—are not to be considered at all as human beings, having rights and inter-ests of their own; but only as tools and machines, to be owned, used, and consumedin producing such wealth as their employers — the monopolists of money—maydesire for their own subsistence and pleasure.

What, then, is the remedy? Plainly it is to abolish the monopoly of money.Liberate all this loanable capital—promissory notes—that is now lying idle, andwe liberate all labor, and furnish to all laborers all the capital they need for theirindustries. We shall then have no longer, all over the earth, the competition ofpauper labor with pauper labor, but only the competition of free labor with freelabor. And from this competition of free labor with free laborvno people on earthhave anything to fear, but all peoples have everything to hope.

And why have all peoples everything to hope from the competition of free laborwith free labor? Because when every human being, who labors at all, has, as nearlyas possible, all the fruits of his labor, and all the capital that is necessary to makehis labor most effective, he has all needed inducements to the best use of both hisbrains and his muscles, his head and his hands. He applies both his head and hishands to his work. He not only acquires, as far as possible, for his own use, all the


scientific discoveries and mechanical inventions, that are made by others, but hehimself makes scientific discoveries and mechanical inventions. He thus multi-plies indefinitely his powers of production. And the more each one produces ofhis own particular commodity, the more he can buy of every other man's products,and the more he can pay for them.

With freedom in money, the scientific discoveries and mechanical inventions,made in each country, will not only be used to the utmost in that country, but willbe carried into all other countries. And these discoveries and inventions, givenby each country to every other, and received by each country from every other,will be of infinitely more value than all the material commodities that will be ex-changed between these countries.

In this way each country contributes to the wealth of every other, and the wholehuman race are enriched by the increased power and stimulus given to each man'slabor of body and mind.

But it is to be kept constantly in mind, that there can be no such thing as freelabor, unless there be freedom in money; that is, unless everybody, who can fur-nish money, shall be at liberty to do so. Plainly labor cannot be free, unless thelaborers are free to hire all the money capital that is necessary for their industries.And they cannot be free to hire all this money capital, unless all who can lend itto them, shall be at liberty to do so.

In short, labor cannot be free, unless each laborer is free to hire all the capital— money capital, as well as all other capital—that he honestly can hire; free tobuy, wherever he can buy, all the raw material he needs for his labor; and free tosell, wherever he can sell, all the products of his labor. Therefore labor cannot befree, unless we have freedom in money, and free trade with all mankind.

We can now understand the situation. In the most civilized nations—such asWestern Europe and the United States—labor is utterly crippled, robbed, and en-slaved by the monopoly of money; and also, in some of these countries, by themonopoly of land. In nearly or quite all the other countries of the world, labor isnot only robbed and enslaved, but to a great extent paralyzed, by the monopoly ofland, and by what may properly be called the utter absence of money. There is, con-sequently, in these latter countries, almost literally, no diversity of industry, no sci-ence, no skill, no invention, no machinery, no manufactures, no production, and nowealth; but everywhere miserable poverty, ignorance, servitude, and wretchedness.

In this country, and in Western Europe, where the uses of money are known,there is no excuse to be offered for the monopoly of money. It is maintained, ineach of these countries, by a small knot of tyrants and robbers, who have got con-trol of the governments, and use their power principally to maintain this monopoly;understanding, as they do, that this one monopoly of money gives them a substan-tially absolute control of all other men's property and labor.

But not satisfied with this substantially absolute control of all other men's pro-


perty and labor, the monopolists of money, in this country, —feigning great pity fortheir laborers, but really seeking only to make their monopoly more profitable tothemselves,—cry out for protection against the competition of the pauper labor ofall other countries; when they alone, and such as they, are the direct cause of all thepauper labor in the world. But for them, and others like them, there would beneither poverty, ignorance, nor servitude on the face of the earth.

But to all that has now been said, the advocates of the monopoly of money willsay that, if all the material property of the country were permitted to be repre-sented by promissory notes, and these promissory notes were permitted to be lent,bought, and sold as money, the laborers would not be able to hire them, for thereason that they could not give the necessary security for repayment.

But let those who would say this, tell us why it is that, in order to prevent menfrom loaning their promissory notes, for circulation as money, it has always beennecessary for governments to prohibit it, either by penal enactments, or prohibitorytaxation. These penal enactments and prohibitory taxation are acknowledgmentsthat, but for them, the notes would be loaned to any extent that would be profit-able to the lenders. What this extent would be, nothing but experience of freedomcan determine. But freedom would doubtless give us ten, twenty, most likely fifty,times as much money as we have now, if so much could be kept in circulation.And laborers would at least have ten, twenty, or fifty times better chances for hir-ing capital, than they have now. And, furthermore, all labor and property wouldhave ten, twenty, or fifty times better chances of bringing their full value in themarket, than they have now.

But in the space that is allowable in this letter, it is impossible to say all, ornearly all, of what might be said, to show the justice, the utility, or the necessity,for perfect freedom in the matters of money and international trade. To pursuethese topics further would exclude other matters of great importance, as showinghow the government acts the part of robber and tyrant in all its legislation on con-tracts; and that the whole purpose of all its acts is that the earnings of the manymay be put into the pockets of the few.

SECTION XVII.

Although, as has already been said, the constitution is a paper that nobody eversigned, that few persons have ever read, and that the great body of the peoplenever saw; and that has, consequently, no more claim to be the supreme law of theland, or to have any authority whatever, than has any other paper, that nobodyever signed, that few persons ever read, and that the great body of the peoplenever saw; and although it purports to authorize a government, in which the law-makers, judges, and executive officers are all to be secured against any responsi-bility whatever to the people, whose liberty and rights are at stake; and although


this government is kept in operation only by votes given in secret (by secret bal-lot), and in a way to save the voters from all personal responsibility for the actsof their agents,—the lawmakers, judges, etc.; and although the whole affair is soaudacious a fraud and usurpation, that no people could be expected to agree to it,or ought to submit to it, for a moment; yet, inasmuch as the constitution declaresitself to have been ordained and established by the people of the United States,for the maintenance of liberty and justice for themselves and their posterity; andinasmuch as all its supporters — that is, the voters, lawmakers, judges, etc. — pro-fess to derive all their authority from it; and inasmuch as all lawmakers, and alljudicial and executive officers, both national and State, swear to support it; andinasmuch as they claim the right to kill, and are evidently determined to kill, andesteem it the highest glory to kill, all who do not submit to its authority; wemight reasonably expect that, from motives of common decency, if from no other,those who profess to administer it, would pay some deference to its commands, atleast in those particular cases where it explicitly forbids any violation of the naturalrights of the people.

Especially might we expect that the judiciary—whose courts claim to be courtsof justice—and who profess to be authorized and sworn to expose and condemnall such violations of individual rights as the constitution itself expressly forbids—would, in spite of all their official dependence on, and responsibility to, the law-makers, have sufficient respect for their personal characters, and the opinions ofthe world, to induce them to pay some regard to all those parts of the constitutionthat expressly require any rights of the people to be held inviolable.

If the judicial tribunals cannot be expected to do justice, even in those caseswhere the constitution expressly commands them to do it, and where they havesolemnly sworn to do it, it is plain that they have sunk to the lowest depths ofservility and corruption, and can be expected to do nothing but serve the purposesof robbers and tyrants.

But how futile have been all expectations of justice from the judiciary, may beseen in the conduct of the courts—and especially in that of the so-called SupremeCourt of the United States—in regard to men's natural right to make their owncontracts.

Although the State lawmakers have, more frequently than the national law-makers, made laws in violation of men's natural right to make their own con-tracts, yet all laws, State and national, having for their object the destruction ofthat right, have always, without a single exception, I think, received the sanctionof the Supreme Court of the United States. And having been sanctioned by thatcourt, they have been, as a matter of course, sanctioned by all the other courts,State and national. And this work has gone on, until, if these courts are to be be-lieved, nothing at all is left of men's natural right to make their own contracts.

That such is the truth, I now propose to prove.


And, first, as to the State governments.The constitution of the United States (Art. 1, Sec. 10) declares that:

No State shall pass any law impairing the obligation of contracts.

This provision does not designate what contracts have, and what have not, an"obligation." But it clearly presupposes, implies, assumes, and asserts that thereare contracts that have an "obligation." Any State law, therefore, which declaresthat such contracts shall have no obligation, is plainly in conflict with this provi-sion of the constitution of the United States.

This provision, also, by implying that there are contracts, that have an " obliga-tion," necessarily implies that men have a right to enter into them; for if men had noright to enter into the contracts, the contracts themselves could have no " obligation."

This provision, then, of the constitution of the United States, not only impliesthat there are contracts that have an obligation, but it also implies that the peoplehave the right to enter into all such contracts, and have the benefit of them. And "any"State " law" conflicting with either of these implications, is necessarily unconstitu-tional and void.

Furthermore, the language of this provision of the constitution, to wit, "the ob-ligation [singular] of contracts" [plural], implies that there is one and the same "ob-ligation" to all "contracts" whatsoever, that have any legal obligation at all. Andthere obviously must be some one principle, that gives validity to all contractsalike, that have any validity.

The law, then, of this whole country, as established by the constitution of theUnited States, is, that all contracts whatsoever, in which this one principle of va-lidity, or " obligation," is found, shall be held valid; and that the States shall im-pose no restraint whatever upon the people's entering into all such contracts.

All, therefore, that courts have to do, in order to determine whether any partic-ular contract, or class of contracts, are valid, and whether the people have a right toenter into them, is simply to determine whether the contracts themselves have, orhave not, this one principle of validity, or "obligation," which the constitution ofthe United States declares shall not be impaired.

State legislation can obviously have nothing to do with the solution of this ques-tion. It can neither create, nor destroy, that " obligation of contracts," which theconstitution forbids it to impair. It can neither give, nor take away, the right toenter into any contract whatever, that has that " obligation."

On the supposition, then, that the constitution of the United States is, what itdeclares itself to be, viz., "the supreme law of the land, . . . . anything in the con-stitutions or laws of the States to the contrary notwithstanding," this provisionagainst "any" State "law impairing the obligation of contracts/' is so explicit, andso authoritative, that the legislatures and courts of the States have no color of au-


thority for violating it. And the Supreme Court of the United States has had nocolor of authority or justification for suffering it to be violated.

This provision is certainly one of the most important—perhaps the most impor-tant— of all the provisions of the constitution of the United States, as protective ofthe natural rights of the people to make their own contracts, or provide for their ownwelfare.

Yet it has been constantly trampled under foot, by the State legislatures, by allmanner of laws, declaring who may, and who may not, make certain contracts;and what shall, and what shall not, be "the obligation" of particular contracts;thus setting at defiance all ideas of justice, of natural rights, and equal rights; con-ferring monopolies and privileges upon particular individuals, and imposing themost arbitrary and destructive restraints and penalties upon others; all with aview of putting, as far as possible, all wealth into the hands of the few, apd impos-ing poverty and servitude upon the great body of the people.

And yet all these enormities have gone on for nearly a hundred years, and havebeen sanctioned, not only by all the State courts, but also by the Supreme Court ofthe United States.

And what color of excuse have any of these courts offered for thus upholding allthese violations of justice, of men's natural rights, and even of that constitutionwhich they had all sworn to support ?

They have offered only this: They have all said they did not know what "the obliga-tion of contracts" was!

Well, suppose, for the sake of the argument, that they have not known what"the obligation of contracts" was, what, then, was their duty? Plainly this, toneither enforce, nor annul, any contract whatever, until they should have discov-ered what " the obligation of contracts " was.

Clearly they could have no right to either enforce, or annul, any contract what-ever, until they should have ascertained whether it had any "obligation," and, ifany, what that " obligation " was.

If these courts really do not know—as perhaps they do not—what "the obliga-tion of contracts" is, they deserve nothing but contempt for their ignorance. Ifthey, do know what " the obligation of contracts" is, and yet sanction the almostliterally innumerable laws that violate it, they deserve nothing but detestationfor their villainy.

And until they shall suspend all their judgments for either enforcing, or annul-ling, contracts, or, on the other hand, shall ascertain what "the obligation of con-tracts " is, and sweep away all State laws that impair it, they will deserve bothcontempt for their ignorance, and detestation for their crimes.

Individual Justices of the Supreme Court of the United States have, at least inone instance, in 1827 (Ogden vs. Saunders, 12 Wheaton 213), attempted to give adefinition of "the obligation of contracts." But there was great disagreement

5Q A Letter to Grover Cleveland.

among them; and no one definition secured the assent of the whole court, or even ofa majority. Since then, so far as I know, that court has never attempted to give adefinition. And, so far as the opinion of that court is concerned, the question isas unsettled now, as it was sixty years ago. And the opinions of the SupremeCourts of the States are equally unsettled with those of the Supreme Court of theUnited States. The consequence is, that "the obligation of contracts"—the prin-ciple on which the real validity, or invalidity, of all contracts whatsoever depends— is practically unknown, or at least unrecognized, by a single court, either of theStates, or of the United States. And, as a result, every species of absurd, corrupt,and robber legislation goes on unrestrained, as it always has done.

What, now, is the reason why not one of these courts has ever so far given itsattention to the subject as to have discovered what "the obligation of contracts"is ? What that principle is, I repeat, which they have all sworn to sustain, and onwhich the real validity, or invalidity, of every contract on which they ever adjudi-cate, depends ? Why is it that they have all gone on sanctioning and enforcingall the nakedly iniquitous laws, by which men's natural right to make their owncontracts has been trampled under foot ?

Surely it is not because they do not know that all men have a natural right tomake their own contracts; for they know that, as well as they know that all menhave a natural right to live, to breathe, to move, to speak, to hear, to see, orto do anything whatever for the support of their lives, or the promotion of theirhappiness.

Why, then, is it, that they strike down this right, without ceremony, and with-out compunction, whenever they are commanded to do so by the lawmakers ? Itis because, and solely because, they are so servile, slavish, degraded, and corrupt,as to act habitually on the principle, that justice and men's natural rights are mat-ters of no importance, in comparison with the commands of the impudent and ty-rannical lawmakers, on whom they are dependent for their offices and theirsalaries. It is because, and solely because, they, like the judges under all otherirresponsible and tyrannical governments, are part and parcel of a conspiracy forrobbing and enslaving the great body of the people, to gratify the luxury andpride of a few. It is because, and solely because, they do not recognize our gov-ernments, State or national, as institutions designed simply to maintain justice,or to protect all men in the enjoyment of all their natural rights; but only as insti-tutions designed to accomplish such objects as irresponsible cabals of lawmakersmay agree upon.

In proof of all this, I give the following.Previous to 1824, two cases had come up from the State courts, to the Supreme

Court of the United States, involving the question whether a State law, invalidat-ing some particular contract, came within the constitutional prohibition of "anylaw impairing the obligation of contracts."


One of these cases was that of Fletcher vs. Peck, (6 Cranch 87), in the year 1810.In this case the court held simply that a grant of land, once made by the legisla-ture of Georgia, could not be rescinded by a subsequent legislature.

But no general definition of " the obligation of contracts " was given.Again, in the year 1819, in the case of Dartmouth College vs. Woodward (4

Wheaton 518), the court held that a charter, granted to Dartmouth College, bythe king of England, before the Revolution, was a contract; and that a law of NewHampshire, annulling, or materially altering, the charter, without the consent ofthe trustees, was a " law impairing the obligation " of that contract.

But, in this case, as in that of Fletcher vs. Peck, the court gave no general defi-nition of " the obligation of contracts."

But in the year 1824, and again in 1827, in the case of Ogden vs. Saunders (12Wheaton 213) the question was, whether an insolvent law of the State of NewYork, which discharged a debtor from a debt, contracted after the passage of thelaw, or, as the courts would say, "contracted under the law"—on his giving uphis property to be distributed among his creditors—was a "law impairing theobligation of contracts?"

To the correct decision of this case, it seemed indispensable that the courtshould give a comprehensive, precise, and universal definition of "the obligation ofcontracts "; one by which it might forever after be known what was, and what wasnot, that " obligation of contracts," which the State governments were forbiddento "impair" by "any law" whatever.

The cause was heard at two terms, that of 1824, and that of 1827.It was argued by Webster, Wheaton, Wirt, Clay, Livingston, Ogden, Jones,

Sampson, and Haines; nine in all. Their arguments were so voluminous thatthey could not be reported at length. Only summaries of them are given. Butthese summaries occupy thirty-eight pages in the reports.

The judges, at that time, were seven, viz., Marshall,* Washington, Johnson, Du-vall, Story, Thompson, and Trimble.

The judges gave five different opinions; occupying one hundred pages of thereports.

But no one definition of "the obligation of contracts" could be agreed on; noteven by a majority.

Here, then, sixteen lawyers and judges—many of them among the most emi-nent the country has ever had—were called upon to give their opinions upon aquestion of the highest importance to all men's natural rights, to all the interestsof civilized society, and to the very existence of civilization itself; a question,upon the answer to which depended the real validity, or invalidity, of every con-tract that ever was made, or ever will be made, between man and man. And yet,by their disagreements, they all virtually acknowledged that they did not knowwhat "the obligation of contracts" wasl


But this was not all. Although they could not agree as to what " the obliga-tion of contracts " was, they did all agree that it could be nothing which the Statelawmakers could not prohibit and abolish, by laws passed before the contracts weremade. That is to say, they all agreed that the State lawmakers had absolutepower to prohibit all contracts whatsoever, for buying and selling, borrowing andlending, giving and receiving, property; and that, whenever they did prohibit anyparticular contract, or class of contracts, all such contracts, thereafter made, couldhave no " obligation " !

They said this, be it noted, not of contracts that were naturally and intrinsicallycriminal and void, but of contracts that were naturally and intrinsically as just,and lawful, and useful, and necessary, as any that men ever enter into; and that hadas perfect a natural, intrinsic, inherent " obligation," as any of those contracts, bywhich the traffic of society is carried on, or by which men ever buy and sell, bor-row and lend, give and receive, property, of and to each other.

Not one of these sixteen lawyers and judges- took the ground that the constitu-tion, in forbidding any State to "pass any law impairing the obligation of contracts,"intended to protect, against the arbitrary legislation of the States, the only true,real, and natural " obligation of contracts," or the right of the people to enter intoall really just, and naturally obligatory contracts.

Is it possible to conceive of a more shameful exhibition, or confession, of theservility, the baseness, or the utter degradation, of both bar and bench, than theirrefusal to say one word in favor of justice, liberty, men's natural rights, or thenatural, and only real, "obligation" of their contracts?

And yet, from that day to this—a period of sixty years, save one—neither barnor bench, so far as I know, have ever uttered one syllable in vindication of men'snatural right to make their own contracts, or to have the only true, real, natural,inherent, intrinsic "obligation" of their contracts respected by lawmakers orcourts.

Can any further proof be needed that all ideas of justice and men's naturalrights are absolutely banished from the minds of lawmakers, and from so-calledcourts of justice ? or that absolute and irresponsible lawmaking has usurped theirplace?

Or can any further proof be needed, of the utter worthlessness of all the consti-tutions, which these lawmakers and judges swear to support, and profess to begoverned by?

SECTION XVIII.

If, now, it be asked, what is this constitutional " obligation of contracts," whichthe States are forbidden to impair, the answer is, that it is, and necessarily mustbe, the natural obligation; or that obligation, which contracts have, on principles

A Letter to Graver Cleveland, 50

of natural law, and natural justice, as distinguished from any arbitrary or unjustobligation, which lawmakers may assume to create, and attach to contracts.

This natural obligation is the only one " obligation," which all obligatory con-tracts can be said to have. It is the only inherent " obligation," that any contractcan be said to have. It is recognized all over the world—at least as far as it isknown—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 excep-tional cases, where arbitrary and tyrannical governments have assumed to annulit, or substitute some other in its stead.

The constitution assumes that this one "obligation of contracts," which it de-signs to protect, is the natural one, because it assumes that it existed, and wasknown, 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 appli-cable to all obligatory contracts, at the time the constitution was established.Unless, therefore, the constitution be presumed to have intended the natural " ob-ligation," 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 pro-tect, was any arbitrary "obligation," that was unknown at the time the constitu-tion was established, but that was to be created, and made known afterward; forthen this provision of the constitution could have had no effect, until such arbi-trary "obligation" should have been created, and made known. And as it givesus no information as to how, or by whom, this arbitrary "obligation" was to becreated, or what the obligation itself was to be, or how it could ever be known tobe the one that was intended to be protected, the provision itself becomes a merenullity, having no effect to protect any "obligation" at all.

It would be a manifest and utter absurdity to say that the constitution intendedto protect any " obligation " whatever, unless it be presumed to have intended someparticular "obligation," that was known at the time; for that would be equivalent tosaying that the constitution intended to establish a law, of which no man couldknow 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 con-vey their natural rights of property from one person to another. And there is nomeans known to mankind, by which this natural right of property can be trans-ferred, or conveyed, by one man to another, except by such contracts as are natu-rally obligatory; that is, naturally capable of conveying and binding the right ofproperty.

All contracts whatsoever, that are naturally capable, competent, and sufficient toconvey, transfer, and bind the natural right of property, are naturally obligatory;


and really and truly do convey, transfer, and bind such rights of property as theypurport to convey, transfer, and bind.

All the other modes, by which one man has ever attempted to acquire the pro-perty of another, have been thefts, robberies, and frauds. But these, of course, havenever conveyed any real rights of property.

To make any contract binding, obligatory, and effectual for conveying andtransferring rights of property, these three conditions only are essential, viz., 1,That it be entered into by parties, who are mentally competent to make reason-able contracts. 2. That the contract be a purely voluntary one: that is, that it beentered into without either force or fraud on either side. 3. That the right ofproperty, which the contract purports to convey, be such an one as is naturally ca-pable of being conveyed, or transferred, by one man to another.

Subject to these conditions, all contracts whatsoever, for conveying rights ofproperty—that is, for buying and selling, borrowing and lending, giving and re-ceiving property—are naturally obligatory, and bind such rights of property asthey purport to convey.

Subject to these conditions, all contracts, for the conveyance of rights of pro-perty, are recognized as valid, all over the world, by both civilized and savageman, except in those particular cases where governments arbitrarily and tyranni-cally prohibit, alter, or invalidate them.

This natural "obligation of contracts" must necessarily be presumed to be theone, and the only one, which the constitution forbids to be impaired, by any Statelaw whatever, if we are to presume that the constitution was intended for themaintenance 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 toprotect. 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 con-tracts " was intended.

It could not have been any " obligation" which the State lawmakers might arbi-trarily create, and annex to all contracts; for this is what no lawmakers have everattempted to do. And it would be the height of absurdity to suppose they everwill invent any one " obligation," and attach it to all contracts. They have onlyattempted either to annul, or impair, the natural " obligation " of particular con-tracts ; or, in particular cases, to substitute other " obligations " of their own inven-tion. 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 Statesare forbidden to "impair," is the natural "obligation"; and that, constitutionally


speaking, this provision secures, to all the people of the United States, the right toenter into, and have the benefit of, all contracts whatsoever, that have that one nat-ural " obligation," let us look at some of the more important of those State lawsthat 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 enteredinto.

The mental capacity of a person to make reasonable contracts, is the only crite-rion, by which to determine his legal capacity to make obligatory contracts. Andhis mental capacity to make reasonable contracts is certainly not to be determinedby the fact that he is, or is not, twenty-one years of age. There would be just asmuch sense in saying that it was to be determined by his height, or his weight, asthere is in saying that it should be determined by his age.

Nearly all persons, male and female, are mentally competent to make reasonablecontracts, long before they are twenty-one years of age. And as soon as they arementally competent to make reasonable contracts, they have the same natural rightto make them, that they ever can have. And their contracts have the same natu-ral "obligation" that they ever can have.

If a person's mental capacity to make reasonable contracts be drawn in ques-tion, that is a question of fact, to be ascertained by the same tribunal that is toascertain all the other facts involved in the case. It certainly is not to be deter-mined by any arbitrary legislation, that shall deprive any one of his natural rightto 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 com-petent to make reasonably, are violations of their natural right to make their owncontracts.

A married woman has the same natural right to acquire and hold property, andto make all contracts that she is mentally competent to make reasonably, as hasa married man, or any other man. And any law invalidating her contracts, orforbidding her to enter into contracts, on the ground of her being married, arenot only absurd and outrageous in themselves, but are also as plainly violations ofthat provision of the constitution, which forbids any State to pass any law impair-ing the natural obligation of contracts, as would be laws invalidating or prohibit-ing similar contracts by married men.

3. All those State laws, commonly called acts of incorporation, by which a cer-tain number of persons are licensed to contract debts, without having their indi-vidual properties held liable to pay them, are laws impairing the natural obligationof their contracts.

On natural principles of law and reason, these persons are simply partners; andtheir private properties, like those of any other partners, should be held liable for


their partnership debts. Like any other partners, they take the profits of theirbusiness, if there be any profits. And they are naturally bound to take all therisks 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, ifthey make a loss, they may throw it upon their creditors, is an absurdity and anoutrage. Such a law is plainly a law impairing the natural obligation of theircontracts.

4. All State insolvent laws, so-called, that distribute a debtor's property equallyamong his creditors, are laws impairing the natural obligation of his contracts.

If the natural obligation of contracts were known, and recognized as law, weshould have no need of insolvent or bankrupt laws.

The only force, function, or effect of a legal contract is to convey and bind rightsof property. A contract that conveys and binds no right of property, has no legalforce, effect, or obligation whatever.*

Consequently, the natural obligation of a contract of debt binds the debtor'sproperty, and nothing more. That is, it gives the creditor a mortgage upon thedebtor's property, and nothing more.

A first debt is a first mortgage; a second debt is a second mortgage; a third debtis 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 onindefinitely.

When the mortgaged property is exhausted, the debt is cancelled; there is noother property that the contract binds.

If, therefore, a debtor, at the time his debt becomes due, pays to the extent ofhis ability, and has been guilty of no fraud, fault, or neglect, during the time hisdebt 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 "obligationof contracts " is, will raise numerous objections to the principle, that a legal con-tract binds nothing else than rights of property. But their objections are all shal-low and fallacious.

I have not space here to go into all the arguments that may be necessary toprove that contracts can have no legal effect, except to bind rights of property; orto 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 hopesometime to publish. For the present, I only assert the principle; and assert thatthe ignorance of this truth is at least one of the reasons why courts and lawyershave never been able to agree as to what "the obligation of contracts " was.

•I t may have very weighty moral obligation; but it can have no legal obligation.


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, orpretences, by which the courts attempt to uphold the validity of all laws that for-bid persons to exercise their natural right to make their own contracts, or that an-nul, 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 con-tract, being then an illegal one, can have no "obligation." Consequently, saythey, the law cannot be said to impair it; because the law cannot impair an " obli-gation," that has never had an existence.

They say this of all contracts, that are arbitrarily forbidden; although, natu-rally and intrinsically, they have as valid an obligation as any others that menever enter into, or as any that courts enforce.

By such a naked trick as this, these courts not only strike down men's naturalright to make their own contracts, but even seek to evade that provision of theconstitution, which they are all sworn to support, and which commands them tohold valid the natural " obligation " of all men's contracts; " anything in the consti-tutions or laws of the States to the contrary notwithstanding."

They might as well have said that, if the constitution had declared that "noState shall pass any law impairing any man's natural right to life, liberty, or pro-perty"— (that is, his natural right to live, and do what he will with himself andhis property, so long as he infringes the right of no other person)—this prohibi-tion could be evaded by a State law declaring that, from and after such a date, noperson should have any natural right to life, liberty, or property; and that, there-fore, a law arbitrarily taking from a man his life, liberty, and property, could notbe said to impair his right to them, because no law could impair a right that didnot exist.

The answer to such an argument as this, would be, that it is a natural truththat every man, who ever has been, or ever will be, born into the world, necessa-rily has been, and necessarily will be, born with an inherent right to life, liberty, and pro-perty ; 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 thatthis natural right is the very right, which the constitution forbids any State lawto 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 thepurchase of food," that provision could have been evaded by a State law forbid-ding any contract to be made for the purchase of food; and then saying that suchcontract, being illegal, could have no "obligation," that could be impaired.

The answer to this argument would be that, by forbidding any State law im-pairing the obligation of contracts made for the purchase of food, the constitutionpresupposes, implies, assumes, and asserts that such contracts have, and always


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, as-sumes, and asserts the natural truth, that certain contracts have, and always neces-sarily will have, a natural "obligation." And this natural "obligation"—which isthe only real obligation that any contract can have—is the very one that the con-stitution forbids any State law to impair, in the case of any contract whateverthat has such obligation.

And yet all the courts hold the direct opposite of this. They hold that, if aState law forbids any contract to be made, such a contract can then have no obli-gation ; and that, consequently, no State law can impair an obligation that neverexisted.

But if, by forbidding a contract to be made, a State law can prevent the con-tract's having any obligation, State laws, by forbidding any contracts at all to bemade, can prevent all contracts, thereafter made, from having any obligation; andthus utterly destroy all men's natural rights to make any obligatory contractsat all.

2. A second pretence, by which the courts attempt to evade that provision ofthe constitution, which forbids any State to "pass any law impairing the obliga-tion 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 for-bids to be impaired; and that therefore the constitution only prohibits the impair-ing 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 haveany natural obligation. It implies that contracts have no obligation, except thelaws that are made for enforcing them. But if contracts have no natural obliga-tion, they have no obligation at all, that ought to be enforced; and the State is amere usurper, tyrant, and robber, in passing any law to enforce them.

Plainly a State cannot rightfully enforce any contracts at all, unless they havea natural obligation.

3. A third pretence, by which the courts attempt to evade this provision of theconstitution, is this: They say that "the law is a part of the contract" itself; andtherefore cannot impair its obligation.

By this they mean that, if a law is standing upon the statute book, prescribingwhat obligation certain contracts shall, or shall not, have, it must then be pre-sumed that, whenever such a contract is made, the parties intended to make it ac-cording to that law; and really to make the law a part of their contract; althoughthey themselves say nothing of the kind.

This pretence, that the law is a part of the contract, is a mere trick to cheatpeople out of their natural right to make their own contracts; and to compel themto make only such contracts as the lawmakers choose to permit them to make.

A Letter to Graver Cleveland. 65

To say that it must be presumed that the parties intended to make their con-tracts according to such laws as may be prescribed to them—or, what is the samething, to make the laws a part of their contracts—is equivalent to saying that theparties must be presumed to have given up all their natural right to make theirown contracts; to have acknowledged themselves imbeciles, incompetent to makereasonable contracts, and to have authorized the lawmakers to make their con-tracts for them; for if the lawmakers can make any part of a man's contract, andpresume his consent to it, they can make a whole one, and presume his consentto it.

If the lawmakers can make any part of men's contracts, they can make thewhole of them; and can, therefore, buy and sell, borrow and lend, give and receivemen's property of all kinds, according to their (the lawmakers') own will, plea-sure, or discretion; without the consent of the real owners of the property, andeven without their knowledge, until it is too late. In short, they may take anyman'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, andbestow it upon whom they will; and then justify the act upon the presumptionthat the owner consented to have his property thus taken from him and given toothers.

This absurd, contemptible, and detestable trick has had a long lease of life, andhas been used as a cover for some of the greatest of crimes. By means of it, themarriage contract has been perverted into a contract, on the part of the woman, tomake 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 withher 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 subsistenceof herself and her children.

There would be just as much reason in saying that the lawmakers have a rightto make the entire marriage contract; to marry any man and woman againsttheir will; dispose of all their personal and property rights; declare them imbe-ciles, incapable of making a reasonable marriage contract; then presume the con-sent of both the parties-; and finally treat them as criminals, and their children asoutcasts, 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 madeto protect the private property of stockholders from liability for the debts of thecorporations, of which they were members; and to protect the private property ofspecial 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 hisdebtor, has been taken from him, and he has been compelled to take his chances withas many subsequent creditors as the debtor may succeed in becoming indebted to


All these absurdities and atrocities have been practiced by the lawmakers of theStates, and sustained by the courts, under the pretence that they (the courts) didnot know what the natural "obligation of contracts" was; or that, if they didknow what it was, the constitution of the United States imposed no restraint uponits unlimited violation by the State lawmakers.

SECTION XX.

But, not content with having always sanctioned the unlimited power of the Statelawmakers to abolish all men's natural right to make their own contracts, the Su-preme Court of the United States has, within the last twenty years, taken pains toassert 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 tomake 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 theparties had made them.

Thus the court has said that, after a man has made a contract to pay a certainnumber of dollars, at a future time,—meaning such dollars as were current at thetime the contract was made,—congress has power to coin a dollar of less value thanthe one agreed on, and authorize the debtor to pay his debt with a dollar of lessvalue than the one he had promised.

To cover up this infamous crime, the court asserts, over and over again,—whatno one denies,—that congress has power (constitutionally speaking) to alter, atpleasure, the value of its coins. But it then asserts that congress has this addi-tional, and wholly different, power, to wit, the power to declare that this alterationin the value of the coins shall work a corresponding change in all existing contractsfor the payment of money.

In reality they say that a contract to pay money is not a contract to pay anyparticular amount, or value, of such money as was known and understood by theparties at the time the contract was made, but only such, and so much, as congressshall 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 bysimply giving an old name to a new thing,—congress has power to utterly abolishthe contract which the parties themselves entered into, and substitute for it anysuch 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 moneyrecognized by law at the time when the contract was made, nor was it a duty to pay moneyof equal intrinsic value in the market But the obligation of a contract to paymoney is to pay that which the law shall recognize as money when the payment is to bemade. —Legal Tender Cases, 12 Wallace 548.


This is saying that the obligation of a contract to pay money is not an obliga-tion to pay what both the law and the parties recognize as money, at the time whenthe 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 thesame denomination [that is, bearing the same name] as those already current by law, butof less intrinsic value than those, by reason of containing a less weight of the preciousmetals, and thereby enable debtors to discharge their debts by the payment of coins of the lessreal value. A contract to pay a certain sum of money, without any stipulation as to the kindof money in which it shall be made, may always be satisfied by payment of that sum [thatis, that nominal amount] in any currency which is lawful money at the place and time ativhich 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 Octoberterm of 1883.

Both these opinions are distinct declarations of the power of congress to altermen's contracts, after they are made, by simply retaining the name, while alteringthe thing, that is agreed to be paid.

In both these cases, the court means distinctly to say that, after the parties to acontract have agreed upon the number of dollars to be paid, congress has power to re-duce the value of the dollar, and authorize all debtors to pay the less valuable dol-lar, instead of the one agreed on.

In other words, the court means to say that, after a contract has been made forthe payment of a certain number of dollars, congress has power to alter the meaningof the word dollar, and thus authorize the debtor to pay in something differentfrom, 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 alter-ing the meaning of the word dollar, and thus reducing the value of the debt, ithas a precisely equal power to increase the value of the dollar, and thus compel thedebtor 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 theyagreed to pay, as it has to cheat creditors, by compelling them to accept less thanthey agreed to accept.

All this talk of the court is equivalent to asserting that congress has the rightto alter men's contracts at pleasure, after they are made, and make them over intosomething, or anything, wholly different from what the parties themselves hadmade them.

And this is equivalent to denying all men's right to make their own contracts,


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 thesense in which they are used, by the parties themselves, at the time when the con-tracts are entered into, but only in such different senses as congress may choose toput upon them at any future time.

If this is not asserting the right of congress to abolish altogether men's naturalright 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 neverthelesstrue, 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 kindand amount of money by which the contracts may be fulfilled. That they in-tended all this, is proved, not only by the extracts already given from their opin-ions, but also by the whole tenor of their arguments—too long to be repeatedhere—and more explicitly by these quotations, viz.:

There is no well-founded distinction to be made between the constitutional validity of anact of congress declaring treasury notes a legal tender for the payment of debts contractedafter its passage, and that of an act making them a legal tender for the discharge of alldebts, as well those incurred before, as those made after, its enactment.—Legal TenderCases, 12 Wallace 530 (1870).

Every contract for the payment of money, simply, is necessarily subject to the constitu-tional power of the government over the currency, whatever that power may be, and theobligation of the parties is, therefore, assumed with reference to that power. —12 Wallace549.

Contracts for the payment of money are subject to the authority of congress, at least sofar 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 alterit afterward—by altering the kind and value of the money with which it may bepaid— 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, donot 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 bindingcontract, of such a sort, and only such a sort, as they (congress) may see fit to convertit into.

Every one of these judges knew that no two men, having common honesty andcommon 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 thegovernment had any such arbitrary power as the court here ascribes to it, to alter


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 inequity—a bona fide mortgage upon the debtor's property. And this mortgage rightis as veritable a right of property, as is any right of property, that is conveyed bya 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 thesejudges will sometime find out that such is "the obligation of contracts," if theyever find out what "the obligation of contracts" is.

The justices of that court have had this question—what is "the obligation ofcontracts"?—before them for seventy years, and more. But they have neveragreed 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 whatit is; for if any one of them had known what it is, he would doubtless have beenable, long ago, to enlighten the rest.

Considering the vital importance of men's contracts, it would evidently be moreto 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 tellingfifty millions of people that they have no right to make any contracts at all, ex-cept 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 "theobligation of contracts " is, are not entitled to any serious consideration. On thecontrary, they show us what farces and impostures these judicial opinions—or de-cisions, as they call them—are. They show that these judicial oracles, as mencall them, are no better than some of the other so-called oracles, by whom mankindhave 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 powerwhatever to make, unmake, alter, or invalidate that "obligation."

Still further. Congress has the same power over weights and measures that ithas over coins. And the court has no more right or reason to say that congresshas power to alter existing contracts, by altering the value of the coins, than ithas to say that, after any or all men have, for value received, entered into contractsto 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 oflumber, congress has power, by altering these weights and measures, to alter allthese existing contracts, so as to convert them into contracts to deliver only halfas many, or to deliver twice as many, bushels, pounds, yards, or feet, as the partiesagreed upon.


To add to the farce, as well as to the iniquity, of these judicial opinions, it mustbe 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, con-gress has the power to compel him (A) to give up this mortgage, and to accept, inplace of it, not anything of any real value whatever, but only the promissory noteof a so-called government; and that government one which — if taxation withoutconsent is robbery—never had an honest dollar in its treasury, with which to payany of its debts, and is never likely to have one; but relies wholly on its futurerobberies for its means to pay them; and can give no guaranty, but its own inter-est 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, andgive him their note, promising to pay him out of their future robberies, the tran-saction would not be considered a very legitimate one. But it would be intrinsi-cally just as legitimate as is the one which the Supreme Court sanctions on thepart of congress.

Banditti have not usually kept supreme courts of their own, to legalize eithertheir robberies, or their promises to pay for past robberies, out of the proceeds oftheir 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 ofthis kind.

SECTION XXL

To justify its declaration, that congress has power to alter men's contracts afterthey 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 thatit had therefore a right to do almost anything for its self-preservation, withoutmuch 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 oflarge armies and navies, and the employment of money to an extent beyond the capacity ofall ordinary sources of supply. Meanwhile the public treasury was nearly empty, and thecredit 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 expectedof them. They had been compelled to suspend specie payments. Taxation was inadequateto pay even the interest on the debt already incurred, and it was impossible to await the in-come of additional taxes. The necessity was immediate and pressing. The army was un-paid. 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 hadnone. We say nothing of the overhanging paralysis of trade, and business generally, whi^hthreatened loss of confidence in the ability of the government to maintain its continued ex-istence, and therewith the complete destruction of all remaining national credit.


It was at such a time, and in such circumstances, that congress was called upon to devisemeans for 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 atsuch a time, and in such an emergency, that the legal-tender acts were passed.—12 Wallace540-1.

In the same case Bradley said:

Can the poor man's cattle, and horses, and corn be thus taken by the government, whenthe public exigency requires it, and cannot the rich man's bonds and notes be in like mannertaken to reach the same end?—p. 561.

He also saidc

It is absolutely essential to independent national existence that government should havea firm hold on the two great instrumentalities of the sioord and the purse, and the right towield them without restriction, on occasions of national peril. In certain emergencies gov-ernment 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 theresources of the country. Its armies must be filled, and its navies manned, by the citizensin person.—p. 563.

Also he said:

The conscription may deprive me of liberty, and destroy my life All these arefundamental political conditions on which life, property, and money are respectively heldand enjoyed under our system of government, nay, under any system of government. Thereare times when the exigencies of the State rightly absorb all subordinate considerations ofprivate interest, convenience, and feeling.—p. 565.

Such an attempt as this, to justify one crime, by taking for granted the justiceof other and greater crimes, is a rather desperate mode of reasoning, for a court oflaw; 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—hasany right to live otherwise than on purely voluntary support. It can have no rightto take either "the poor man's cattle, and horses, and corn," or "the rich man'sbonds and notes," or poor men's " bodies and lives," without their consent. Andwhen a government resorts to such measures to save its life, we need no furtherproof 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. Onthe contrary, they hold that, in comparison with the preservation of the govern-ment, 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, con-gress had the right to commit any crime against private persons, by which thegovernment could be saved. And among these lawful crimes, the court holds that


congress had the right to issue money that should serve as a license to all holdersof it, to cheat—or rather openly rob—their creditors.

The court might, with just as much reason, have said that, to preserve the lifeof the government, congress had the right to issue such money as would authorizeall 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 lifeof the government, congress had the right to sell indulgences for all manner ofcrimes; for theft, robbery, rape, murder, and all other crimes, for which indulgenceswould bring a price in the market.

Can any one imagine it possible that, if the government had always donenothing but that "equal and exact justice to all men"—which you say it ispledged to do,—but which you must know it has never done,—it could ever havebeen brought into any such peril of its life, as these judges describe? Could itever have been necessitated to take either "the poor man's cattle, and horses, andcorn," or "the rich man's bonds and notes," or poor men's "bodies and lives," with-out their consent? Could it ever have been necessitated to "conscript" the poorman—too poor to pay a ransom of three hundred dollars—made thus poor by thetyranny of the government itself—"deprive him of his liberty, and destroy hislife"? Could it ever have been necessitated to sell indulgences for crime to eitherdebtors, or creditors, or anybody else? To preserve "the constitution" — a consti-tution, 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 ignorantyoung men, to cut the throats of other young men as ignorant as themselves—fewof whom, on either side, had ever read the constitution, or had any real knowledgeof its legal meaning; and not one of whom had ever signed it, of promised to sup-port 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 onein ten thousand, of these young men, who were sent out to butcher others, and bebutchered themselves, had any real knowledge of the constitution they were pro-fessedly sent out to support; or any reasonable knowledge of the real characterand motives of the congresses and courts that profess to administer the constitu-tion. If they had possessed this knowledge, how many of them would have evergone to the field?

But further. Is it really true that the right of the government to commit allthese atrocities:

Are the fundamental political conditions on which life, property, and money are respect'ively held and enjoyed under our system of government ?

If such is the real character of the constitution, can any further proof be re-quired 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 Jit to ex~

A Letter to Grover Cleveland* 73

ist. 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 whichany of them were entitled. And if we had spent the same money and blood todestroy them, that we did to preserve them, it would have been ten thousand timesmore creditable to our intelligence and character as a people.

Clearly the court has not strengthened its case at all by this picture of the perilin which the government was placed. It has only shown to what desperate straitsa government, founded on usurpation and fraud, and devoted to robbery and op-pression, may be brought, by the quarrels that are liable to arise between the dif-ferent 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—havingnever 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 pro-fessedly 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 thegreat body of the people had never seen. This government had been imposed, bya few property holders, upon a people too poor, too scattered, and many of themtoo ignorant, to resist. It had been carried on, for some seventy years, by a merecabal of irresponsible men, called lawmakers. In this cabal, the several localbands of robbers—the slaveholders of the South, the iron monopolists, the woollenmonopolists, and the money monopolists, of the North—were represented. Thewhole 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 lesserbands of robbers have done—over the division of their spoils. And hence thewar. No such principle as justice to anybody—black or white—was the rulingmotive on either side.

In this war, each faction—already steeped in crime—plunged into new, if notgreater, crimes. In its desperation, it resolved to destroy men and money, withoutlimit, and without mercy, for the preservation of its existence. The northern fac-tion, having more men, money, and credit than the southern, survived the Kil-kenny fight. Neither faction cared anything for human rights then, and neitherof them has shown any regard for human rights since. "As a war measure," thenorthern faction found it necessary to put an end to the one great crime, fromwhich the southern faction had drawn its wealth. But all other government crimeshave been more rampant since the war, than they were before. Neither the con-querors, nor the conquered, have yet learned that no government can have anyright to exist for any other purpose than the simple maintenance of justice be-tween man and man.

And now, years after the fiendish butchery is over, and after men would seem


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 ofthe 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 notonly justifiable and proper at the time, but that it is also a legitimate and constitutionalpower, to be exercised forever hereafter in time of peace!

Mark the knavery of these men. They first say that, because the governmentwas 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 licens-ing the same crimes as it was before necessitated to license!

They thus virtually say that the government may commit the same crimes intime 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 ofpeace, when no necessity whatever can be alleged, as in time of war, when the govern-ment is in peril of its life.

In short, they virtually say, that this government exists for itself alone; andthat all the natural rights of the people, to property, liberty, and life, are merebaubles, 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 hereafterbe relied on to sanction every usurpation and crime that congress will ever dare toput into the form of a statute, without the slightest color of authority from theconstitution, necessity, utility, justice, or reason, it has, on three separate occa-sions, announced its sanction of the monopoly of money, as finally establishedby congress in 1866, and continued in force ever since.

This monopoly is established by a prohibitory tax—a tax of ten per cent. — onall notes issued for circulation as money, other than the notes of the United Statesand the national banks.

This ten per cent, is called a "tax," but is really a penalty, and is intended assuch, and as nothing else. Its whole purpose is—not to raise revenue—but solelyto establish a monopoly of money, by prohibiting the issue of all notes intendedfor circulation as money, except those issued, or specially licensed, by the govern-ment itself.

This prohibition upon the issue of all notes, except thone issued, or speciallylicensed, by the government, is a prohibition upon all freedom of industry andtraffic. It is a prohibition upon the exercise of men's natural right to lend andhire such money capital as all men need to enable them to create and distribute


wealth, and supply their own wants, and provide for their own happiness. Itswhole purpose is to reduce, as far as possible, the great body of the people to thecondition of servants to a few—a condition but a single grade above that of chat-tel slavery—in which their labor, and the products of their labor, may be extortedfrom 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 theexercise of men's natural right to create and distribute wealth, and provide fortheir own and each other's wants. And it is imposed solely for the purpose ofestablishing 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 congresshas power to levy taxes; that it must do so to raise revenue for the support of thegovernment. Therefore this lying congress call this penalty a "tax," instead ofcalling it by its true name, a penalty.

It certainly is no tax, because no revenue is raised, or intended to be raised, byit. It is not levied upon property, or persons, as such, but only upon a certainact, or upon persons for doing a certain act; an act that is not only perfectly inno-cent and lawful in itself, but that is naturally and intrinsically useful, and evenindispensable for the prosperity and welfare of the whole people. Its whole objectis simply to deter everybody—except those specially licensed—from performingthis innocent, useful, and necessary act. And this it has succeeded in doing forthe last twenty years; to the destruction of the rights, and the impoverishmentand 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 spe-cially 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 thepersons issuing them,

the act would have been the same, in effect and intention, as is this act, thatimposes what it calls a "tax." The penalty would have been understood by every-body as a punishment for issuing the notes; and would have been applied to, andenforced against, those only who should have issued them. And it is the samewith this Eo-ealled tax. It will never be collected, except for the same cause, andunder the same circumstances, as the penalty would have been. It has no more todo with raising a revenue, than the penalty would have had. And all these lyinglawmakers and courts know it.

But if congress had put this prohibition distinctly in the form of a penalty, theusurpation would have been so barefaced—so destitute of all color of constitu-


tional authority—that congress dared not risk the consequences. And possiblythe court might not have dared to sanction it; if, indeed, there be any crime orusurpation which the court dare not sanction. So these knavish lawmakers calledthis penalty a " tax" ; and the court says that such a " t ax" is clearly constitu-tional. And the monopoly has now been established for twenty years. And sub-stantially all the industrial and financial troubles of that period have been thenatural consequences of the monopoly.

If congress had laid a prohibitory tax upon all food—that is, had imposed apenalty upon the production and sale of all food—except such as it should haveitself 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 reallyneeded; the motive and the crime would have been the same, in character, if notin degree, as they are in this case, viz., to enable the few holders of the licensedfood 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 naturalrights, than is the present monopoly of money. And yet this colossal crime—likeevery 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 consti-tution 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 omnipotentover all the industry and traffic of the country; that is fatal to all.other men's nat-ural right to lend and hire capital for any or all their legitimate industries; andfatal absolutely to all their natural right to buy, sell, and exchange any, or all, theproducts of their labor at their true, just, and natural prices.

Let us look at these constitutional provisions, and see how much authority con-gress can really draw from them.

1. The constitution says:

The congress shall have power to lay and collect taxes, duties, imposts, and excises, to paythe debts, and provide for the common defence and general welfare of the United States.

This provision plainly authorizes no taxation whatever, except for the raisingof revenue to pay the debts and legitimate expenses of the government. It nomore authorizes taxation for the purpose of establishing monopolies of any kindwhatever, than it does for taking openly and boldly all the property of the many,


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 thepresent monopoly of money; that the power to tax all other money, is a power toprohibit all other money; and a power to prohibit all other money is a power togive 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 thatthe power of congress to tax all other property than money, is a power to prohibitall other property than money; and a power to prohibit all other property thanmoney, is a power to give monopolies to all such other property as congress maynot choose to prohibit; or may choose to specially license.

On such reasoning as this, it would follow that the power of congress to taxmoney, and all other property, is a power to prohibit all money, and all other pro-perty; and thus to establish monopolies in favor of all such money, and all suchother 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 imposingprohibitory taxes upon all money and other property, except such as it shouldchoose not to prohibit; or should choose to specially license.

Because the constitution says that " congress shall have power to lay and collecttaxes," etc., to raise the revenue necessary for paying the current expenses of thegovernment, 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 uponall 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 thecourt attempts to justify a prohibitory " tax" upon money; for the same reasoningwould justify the levying of a prohibitory tax—that is, penalty—upon the use ofany 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 thismonopoly of money, than there is between such a power of taxation, and a powerto punish, as a crime, any or all industry and traffic whatsoever, except such as thegovernment may specially license.

This whole cheat lies in the use of the word "tax," to describe what is really apenalty, upon the exercise of any or all men's natural rights of providing for theirsubsistence and well-being. And none but corrupt and rotten congresses andcourts would ever think of practising such a cheat.


2. The second provision of the constitution, relied on by the court to justifythe monopoly of money, is this:

The congress shall have power to coin money, regulate the value thereof, and of foreigncoins.

The only important part of this provision is that which says that "the congressshall 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 thecoins will circulate, or not, as men may, or may not, choose to buy and sell themas 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 trueand natural market value; and there is no occasion for congress to do anything inregard to them.

The only thing, therefore, that we need to look at, is simply the power of con-gress " to coin money."

So far as congress itself is authorized to coin money, this is simply a power toweigh and assay metals,—gold, silver, or any other,—stamp upon them marks in-dicating their weight and fineness, and then sell them to whomsoever may chooseto 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 aH other honestmoney, that may be offered in the market, and bought and sold in competitionwith the coins weighed and assayed by the government.

The power itself is a frivolous one, of little or no utility; for the weighing andassaying of metals is a thing so easily done, and can be done by so many differentpersons, 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 bygovernments or individuals—had all been made into pieces bearing simply thenames of pounds, ounces, pennyweights, etc., and containing just the amounts ofpure metal described by those weights. The coins would then have been regardedas only so much metal; and as having only the same value as the same amount ofmetal in any other form. Men would then have known exactly how much of cer-tain metals they were buying, selling, and promising to pay. And all the jugglery,cheating, and robbery that governments have practised, and licensed individualsto practise—by coining pieces bearing the same names, but having differentamounts of metal—would have been avoided.

And all excuses for establishing monopolies of money, by prohibiting all othermoney than the coins, would also have been avoided.

As it is, the constitution imposes no prohibition upon the coining of money byindividuals, but only by State governments. Individuals are left perfectly free to


coin it, except that they must not "counterfeit the securities and current coin of theUnited 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 thatwas taken out of the earth, was coined by private persons and companies; and thiscoinage was perfectly legal. And I do not remember to have ever heard any com-plaint, or accusation, that it was not honest and reliable.

The true and only value, which the coins have as money, is that value whichthey have as metals, for uses in the arts, — that is, for plate, watches, jewelry, andthe like. This value they will retain, whether they circulate as money, or not. Atthis value, they are so utterly inadequate to serve as bona fide equivalents for suchother 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 atall as money.

But they can be so easily and cheaply carried from one part of the world toanother, 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 standardswe can have—by which to measure the value of all other money, as well as otherproperty. But to give them any monopoly as money, is to deny the natural rightof all men to make their own contracts, and buy and sell, borrow and lend, giveand 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 pricesof the latter's labor and property.

3. The third provision of the constitution, on which the court relies to justifythe 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 borrowmoney," and its power to establish a monopoly of money?

Certainly no such connection is visible to the legal eye. But it is distinctly visi-ble to the political and financial eye; that is, to that class of men, for whom gov-ernments exist, and who own congresses and courts, and set in motion armies andnavies, whenever they can promote their own interests by doing so.

To a government, whose usurpations and crimes have brought it to the verge ofdestruction, these men say:

Make bonds bearing six per cent, interest; sell them to us at half their face value; thengive us a monopoly of money based upon these bonds—such a monopoly as will subject thegreat body of the people to a dependence upon us for the necessaries of life, and compelthem to sell their labor and property to us at our own prices; then, under pretence of rais-


ing revenue to pay the interest and principal of the bonds, impose such a tariff upon im-ported commodities as will enable us to get fifty per cent, more for our own goods than theyare worth; in short, pledge to us all the power of the government to extort for us, in the fu-ture, everything that can be extorted from the producers of wealth, and we will lend youall the money you need to maintain your power.

And the government has no alternative but to comply with this infamous pro-posal, or give up its infamous life.

This is the only real connection there is between the power of congress " to bor-row money," and its power to establish a monopoly of money. It was only by anoutright sale of the rights of the whole people, for a long series of years, that thegovernment could raise the money necessary to continue its villainous existence.

Congress had just as much constitutional power "to borrow money," by the saleof any and all the other natural rights of the people at large, as it had " to borrowmoney " 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, em-powered to define authoritatively the legal rights of every human being in thecountry—declares that congress has a constitutional power to prohibit the use ofall that immense mass of money capital, in the shape of promissory notes, whichthe real property of the country is capable of supplying and sustaining, and whichis sufficient to give to every laboring person, man or woman, the means of inde-pendence and wealth — when that court says that congress has power to prohibitthe use of all this money capital, and grant to a few men a monopoly of moneythat shall condemn the great body of wealth-producers to hopeless poverty, de-pendence, and servitude—and when the court has the audacity to make thesedeclarations on such nakedly false and senseless grounds as those that have nowbeen stated, it is clearly time for the people of this country to inquire what con-stitutions and governments are good for, and whether they (the people) have anynatural right, as human beings, to live for themselves, or only for a few conspira-tors, 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 separatecases, viz.: Veazie Bank vs. Fenno, 8 Wallace, 549 (1869). National Bank vs. UnitedStates, 101 U. S. Reports, 5 and 6 (1879). Juilliard vs. Greenman, 110 U. S. Reports445-6 (1884).

SECTION XXIII.

If anything could add to the disgust and detestation which the monstrous falsi-fications of the constitution, already described, should excite towards the courtthat resorts to them, it would be the fact that the court, not content with falsify-ing to the utmost the constitution itself, goes outside of the constitution, to the tyran-


nical 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 "sove-reign" 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 oneduty, viz., obedience, submission. They are not recognized as having any rights.They can claim nothing as their own. They can only accept what the governmentchooses to give them. The government owns them and their property; and dis-poses of them and their property, at its pleasure, or discretion; without regard toany 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 opera-tion under it. And the court now says, virtually, that the constitution intendedto give to our government the same " sovereignty" over the natural rights of thepeople, 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 gov-ernments spurned the idea that they were dependent on the will or consent of theirpeople for their political power. On the contrary, they claimed to have derived itfrom 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 tohave received authority from God Himself, to rule over their people. And theytaught, and a servile and corrupt priesthood taught, that it was a religious duty ofthe people to obey them. And they kept great standing armies, and hordes ofpimps, spies, and ruffians, to keep the people in subjection.

And when, soon afterwards, the revolutionists of France dethroned the kingthen existing—the Legitimist king, so-called—and asserted the right of the peo-ple to choose their own government, these other governments carried on a twentyyears' war against her, to reestablish the principle of "sovereignty" by "DivineRight." And in this war, the government of England, although not itself claim-ing to exist by Divine Right,—but really existing by brute force,—furnishedmen and money without limit, to reestablish that principle in France, and tomaintain it wherever else, in Europe, it was endangered by the idea of popularrights.


The principle, then, of "Sovereignty by Divine Right" — sustained by bruteforce—was the principle on which the governments of Europe then rested; andmost of them rest on that principle today. And now the Supreme Court of theUnited States virtually says that our constitution intended to give to our govern-ment the same "sovereignty"—the same absolutism—the same supremacy overall the natural rights of the people — as was claimed and exercised by those "Di-vine Right" governments of Europe, a hundred years ago!

That I may not be suspected of misrepresenting these men, I give some of theirown words as follows:

It is not doubted that the power to establish a standard of value, by which all other valuesmay be measured, or, in other words, to determine what shall be lawful money and a legaltender, is in its nature, and of necessity, a governmental power. It is in all countries exer-cised 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 aspublic] a power confessedly possessed by every independent sovereignty other than the Uni-ted 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 attributeof 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 dishon-est 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 ofdebts previously contracted], would be taking private property ? It might be impolitic, andunjust, 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 attri-butes of sovereignty.—p. 555.

Also he said:

Such being the character of the General Government, it seems to be a self-evident propo-sition that it is invested with all those inherent and implied powers, which, at the time ofadopting 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 xoas,


and for a long time had been, the practice of most, if not all, civilized governments, to em-ploy the public credit as a means of anticipating the national revenues for the purpose ofenabling 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 ofhistory, 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 publicand private creditors during the pending exigency. Every government has a right to de-mand 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 makeits notes a legal tender in payment of private debts] is one of those vital and essential pow-ers inhering in every national sovereignty, and necessary to its belf-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, 110U. 8. Reports, p. 438.

Also it calls the constitution:

A constitution, establishing a form of government, declaring fundamental principles, andcreating 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 thepower to issue the obligations of the United States in such form, and to impress upon themsuch qualities as currency, for the purchase of merchandise and the payment of debts, asaccord with the usage of other sovereign governments. The power, as incident to the powerof borrowing money, and issuing bills or notes of the government for money borrowed, ofimpressing upon those bills or notes the quality of being a legal tender for the payment ofprivate debts, was a power universally understood to belong to sovereignty, in Europe andAmerica, 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 tothe distribution of powers under their respective constitutions, had, and have, as sovereigna power of issuing paper money as of stamping coin. This power has been distinctly recog-nized in an important modern case, ably argued and fully considered, in which the Emperorof Austria, as King of Hungary, obtained from the English Court of Chancery an injunction


against the issue, in England, without his license, of notes purporting to be public papermoney 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 privated e b t s , being one of the p o w e r s b e l o n g i n g to s o v e r e i g n t y i n other c i v i l i z e d n a t i o n s , . . . w eare irresistibly impelled to the conclusion that the impressing upon the treasury notes ofthe United States the quality of being a legal tender in payment of private debts, is an ap-propriate means, conducive and plainly adapted to the execution of the undoubted powersof congress, consistent with the letter and spirit of the constitution, etc.--p. 450.

On reading these astonishing ideas about "sovereignty" — "sovereignty" overall the natural rights of mankind—"sovereignty," as it prevailed in Europe "at thetime of the framing and adoption of the constitution of the United States" — weare compelled to see that these judges obtained their constitutional law, not fromthe constitution itself, but from the example of the " Divine Right" governmentsexisting in Europe a hundred years ago. These judges seem never to have heardof the American Revolution, or the French Revolution, or even of the EnglishRevolutions of the seventeenth century—revolutions fought and accomplished tooverthrow these very ideas of "sovereignty," which these judges now proclaim, asthe supreme law of this country. They seem never to have heard of the Declara-tion of Independence, nor of any other declaration of the natural rights of humanbeings. To their minds, "the sovereignty of governments" is everything; humanrights nothing. They apparently cannot conceive of such a thing as a people'sestablishing a government as a means of preserving their personal liberty andrights. They can only see what fearful calamities "sovereign governments"would be liable to, if they could not compel their "subjects"—the people — tosupport them against their will, and at every cost of their property, liberty, andlives. They are utterly blind to the fact, that it is this very assumption of " sove-reignty" over all the natural rights of men, that brings governments into all theirdifficulties, and all their perils. They do not see that it is this very assumption of"sovereignty" overall men's natural rights, that makes it necessary for the "Di-vine 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, theignorant and superstitious people.

These judges talk of "the constitutions1' of these "sovereign governments" ofEurope, as they existed "at the time of the framing and adoption of the constitu-tion of the United States." They apparently do not know that those governmentshad no constitutions at all, except the Will of God, their standing armies, and thejudges, lawyers, priests, pimps, spies, and ruffians they kept in their service.


If these judges had lived in Russia, a hundred years ago, and had chanced tobe visited with a momentary spasm of manhood—a fact hardly to be supposed ofsuch creatures—and had been sentenced therefor to the knout, a dungeon, orSiberia, 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 constitutionof 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 thegovernment is "sovereign," or that the people are "subjects." At most, it con-tains only the mistaken idea that a power of making laws—by lawmakers chosenby the people—was consistent with, and necessary to, the maintenance of libertyand justice for the people themselves. This mistaken idea was, in some measure,excusable in that day, when reason and experience had not demonstrated, to theirminds, the utter incompatibility of all lawmaking whatsoever with men's naturalrights.

The only other provision of the constitution, that can be interpreted as a decla-ration of " sovereignty " in the government, is this:

This constitution, and the laws of the United States which shall be made in pursuancethereof, and all treaties made, or which shall be made, under the authority of the UnitedStates, shall be the supreme law of the land, and the judges in every State shall be boundthereby, 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 trea-ties of the United States, shall be "the supreme law of the land"—not anythingin the natural rights of the people to liberty and justice, to the contrary notwithstand-ing—but only that they shall be "the supreme law of the land," "anything inthe constitution or laws of any State to the contrary notwithstanding"—that is, when-ever the two may chance to conflict with each other.

If this is its true interpretation, the provision contains no declaration of " sove-reignty " over the natural rights of the people.

Justice is "the supreme law" of this, and all other lands; anything in the con-stitutions or laws of any nation to the contrary notwithstanding. And if the con-stitution of the United States intended to assert the contrary, it was simply anaudacious lie—a lie as foolish as it was audacious—that should have coveredwith infamy every man who helped to frame the constitution, or afterward sanc-tioned it, or that should ever attempt to administer it.

Inasmuch as the constitution declares itself to have been " ordained and estab-lished" by

We, the people of the United States, in order to form a more perfect union, establish jus-tice, insure domestic tranquillity, provide for the common defence, promote the generalwelfare, and secure the blessings of liberty to ourselves and our posterity,


everybody who attempts to administer it, is bound to give it such an interpre-tation, 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 theconstitution and laws of the United States should be "the supreme law of theland," anything in their own natural rights, or in the natural rights of the rest of man-kind, to the contrary notwithstanding, would be to suppose that they intended, notonly to authorize every injustice, and arouse universal violence, among themselves,but that they intended also to avow themselves the open enemies of the rights ofall the rest of mankind. Certainly no such folly, madness, or criminality as thiscan be attributed to them by any rational man—always excepting the justices ofthe 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 shalldeceive, plunder, enslave, and murder the ignorant and the weak.

Many men, still living, can well remember how, some fifty years ago, those fa-mous champions of "sovereignty," of arbitrary power, Webster and Calhoun, de-bated the question, whether, in this country, "sovereignty" resided in the generalor State governments. But they never settled the question, for the very good rea-son that no such thing as " sovereignty " resided in either.

And the question was never settled, until it was settled at the cost of a millionof lives, and some ten thousand millions of money. And then it was settled onlyas the same question had so often been settled before, to wit, that "the heaviestbattalions" are "sovereign" over the lighter.

The only real "sovereignty," or right of "sovereignty," in this or any othercountry, is that right of sovereignty which each and every human being has overhis or her own person and property, so long as he or she obeys the one law of jus-tice towards the person and property of every other human being. This is theonly 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 differ-ent 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 spendmore money, and shed more blood, to maintain its power, than they have everbeen able to do; that the people have no more rights here than there; and thatthe government is doing all it c^n to keep the producing classes as poor here asthey are there.


SECTION XXIV.

John Marshall has the reputation of having been the greatest jurist the countryhas ever had. And he unquestionably would have been a great jurist, if the twofundamental propositions, on which all his legal, political, and constitutional ideaswere 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 interestthe 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 vindicatedmen'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, sofar 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, onaccount of its injustice, or its violation of men's natural rights; but only on accountof its conflict with the constitution, laws, or treaties of the United States.

He was considered very profound on questions of "sovereignty." In fact, henever said much in regard to anything else. He held that, in this country, " sove-reignty" was divided: that the national government was "sovereign" over certainthings; and that the State governments were "sovereign" over all other things.He had apparently never heard of any natural, individual, human rights, that hadnever been delegated to either the general or State governments.

As a practical matter, he seemed to hold that the general government had " sove-reignty " enough to destroy as many of the natural rights of the people as it shouldplease to destroy; and that the State governments had "sovereignty" enough todestroy what should be left, if there should be any such. He evidently consideredthat, to the national government, had been delegated the part of the lion, with theright to devour as much of his prey as his appetite should crave; and that the Stategovernments were jackals, with power to devour what the lion should leave.

In his efforts to establish the absolutism of our governments, he made himselfan adept in the use of all those false definitions, and false assumptions, to whichcourts are driven, who hold that constitutions and statute books are supreme overall 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 ofalmost universal panegyric, " To be a rule of civil conduct prescribed by the supreme power


in a State." In our system, the legislature of a State is the supreme power, in all caseswhere its action is not restrained by the constitution of the United States. — Ogden vs.Sounders, 12 Wheaton 347.

This definition is an utterly false one. It denies all the natural rights of thepeople; 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; andnot anything that man ever made, or can make, unmake, or alter. Thus we speakof the laws of matter, and the laws of mind; of the law of gravitation, the laws oflight, heat, and electricity, the laws of chemistry, geology, botany; of physiologicallaws, 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 byany human power. And it is just as false and absurd to talk of anybody's havingthe power to abolish the law of justice, and set up their own will in its stead, as itwould be to talk of their having the power to abolish the law of gravitation, or anyof the other natural laws of the universe, and set up their own will in the place ofthem.

Yet Marshall holds that this natural law of justice is no law at all, in compari-son with some "rule of civil conduct prescribed by [what he calls] the supremepower in a State."

And he gives this miserable definition, which he picked up somewhere—out ofthe legal filth in which he wallowed—as his sufficient authority for striking downall the natural obligation of men's contracts, and all men's natural rights to maketheir own contracts; and for upholding the State governments in prohibiting allsuch contracts as they, in their avarice and tyranny, may choose to prohibit. Hedoes it too, directly in the face of that very constitution, which he professes to up-hold, 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 anyand all the other natural rights of mankind.

That such a definition of law should suit the purposes of men like Marshall, whobelieve that governments should have all power, and men no rights, accounts forthe fact that, in this country, men have had no "rights"—but only such permitsas lawmakers have seen fit to allow them—since the State and United States gov-ernments 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 maybe evidenced, to prohibit such as may be deemed mischievous, is unquestionable, and hasbeen universally exercised. — Ogden vs. Saunders, 12 Wheaton 347.


He here asserts that "the supreme power in a State " — that is, the legislature ofa State—has "the right" to "deem it mischievous" to allow men to exercise theirnatural right to make their own contracts 1 Contracts that have a natural obliga-tion 1 And that, if a State legislature thinks i t " mischievous " to allow men to makecontracts that are naturally obligatory, " its right to prohibit them is unquestionable."

Is not this equivalent to saying that governments have all power, and the peopleno rights?

On the same principle, and under the same definition of law, the lawmakers ofa State may, of course, hold it " mischievous " to allow men to exercise any of theirother natural rights, as well as their right to make their own contracts; and maytherefore prohibit the exercise of any, or all, of them.

And this is equivalent to saying that governments have all power, and the peo-ple no rights.

If a government can forbid the free exercise of a single one of man's naturalrights, it may, for the same reason, forbid the exercise of any and all of them; andthus establish, practically and absolutely, Marshall's principle, that the governmenthas all power, and the people no rights.

In the same case, of Ogden vs. Saunders, Marshall's principle was agreed to by allthe other justices, and all the lawyers !

Thus Thompson, orte of the justices, said:

Would it not be within the legitimate powers of a State legislature to declare prospectivelythat no one should be made responsible, upon contracts entered into before arriving at theage of twenty-Jive years? This, I presume, cannot be doubted.—p. 300.

On the same principle, he might say that a State legislature may declare that noperson, under fifty, or seventy, or a hundred, years of age, shall exercise his naturalright 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 declaies the contract shall haveno obligation, it can have no obligation, tohatever may be the principles of natural law inregard to such a contract. This doctrine has been held and maintained by all States andnations. The power of controlling, modifying, and even taking away, all obligation fromsvch contracts as, independently of positive enactions to the contrary, would have been obli-gatory, 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 atleast 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 men's natural rights, not fromthe constitution of the United States, nor even from any constitution affirming


men's natural rights, but from "the doctrine [that] has been held and maintainedby all [those] States and nations," and "all [those] independent sovereigns," whohave usurped all power, and denied all the natural rights of mankind.

Marshall gives another of his false definitions, when, speaking for the wholecourt, in regard to the power of congress "to regulate commerce with foreign na-tions, and among the several States," he asserts the right of congress to an arbi-trary, 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 whichcommerce is to be governed. This power, like all others vested in congress, is complete initself, may be exercised to its utmost extent, and acknowledges no limitations, other than areprescribed by the constitution. These are expressed in plain terms, and do not affect thequestions which arise in this case, or which have been discussed at the bar. If, as has alwaysbeen understood, the sovereignty of congress, though limited to specific objects, is plenaryas to those objects, the power over commerce with foreign nations, and among the severalStates, is vested in congress as absolutely as it would be in a single government, having inits constitution the same restrictions on the exercise of the power as are found in the consti-tution of the United States. The wisdom and the discretion of congress, their identity withthe people, and the influence which their constituents possess at elections, are, in this, as inmany other instances, as that, for example, of declaring war, the sole restraints on whichthey [the people] have relied, to secure them from its abuse. They are the restraints onwhich 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 na-tions and among the several States," with certain exceptions mentioned in the con-stitution; such as that "all duties, imposts, and excises shall be uniform throughoutthe United States," and "no tax or duty shall be laid on articles exported from anyState," and " no preference shall be given, by any regulation of commerce or reve-nue, to the ports of one State over those of another; nor shall vessels bound to, orfrom, one State, be obliged to enter, clear, or pay duties in another."

According to this opinion of the court, congress has—subject to the exceptionsreferred to—absolute, irresponsible dominion over "all commerce with foreign na-tions, and among the several States"; and all men's natural rights to trade witheach other, among the several States, and all over the world, are prostrate underthe feet of a contemptible, detestable, and irresponsible cabal of lawmakers; andthe people have no protection or redress for any tyranny or robbery that may bepractised upon them, except " the wisdom and the discretion of congress, their identitywith the people, and the influence which their constituents possess at elections " !

I t will be noticed that the court say that " all the other poivers, vested in congress,are complete in themselves, and may be exercised to their utmost extent, and acknowledgeno limitations, other than those prescribed by the constitution."

They say that among "all the other [practically unlimited] powers, vested in

A. Letter to Grover Cleveland, 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 againstany people, it pleases.

Thus they say, virtually, that the natural rights of mankind impose no constitutionalrestraints 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, andamong the several States," solely on the strength of a false definition of the verb "toregulate" He says that "the power to regulate commerce" is the power "to-pre-scribe the rule by which commerce is to be governed."

This definition is an utterly false, absurd, and atrocious one. It would give congress powerarbitrarily to control, obstruct, impede, derange, prohibit, and destroy commerce.

The verb " to regulate " does not, as Marshall asserts, imply the exercise of any arbitrarycontrol whatever over the thing regulated; nor any power " to prescribe [arbitrarily] therule, by which" the thing regulated "is to be governed." On the contrary, it comes fromthe Latin word, regula, a rule; and implies the pre-existence of a rule, to which the thingregulated is made to conform.

To regulate one's diet, for example, is not, on the one hand, to starve one's self to emacia-tion, 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 naturallaws 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. Itis " regulated " only when it is made to conform to, to mark truly, the diurnal revolutions ofthe earth. These revolutions of the earth constitute the pre-existing rule, by which alone aclock can be regulated.

A mariner's compass is not "regulated," when the needle is made to move this way andthat, at the will of an operator, without reference to the north pole. But it is regulatedwhen 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 gobackwards, to go fast, to go slow, at the mere will and caprice of the engineer, and withoutregard to economy, utility, or safety. But it is regulated, when its motions are made toconform 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 preci-sion, as is the rule in the case of a clock, or a mariner's compass; but it may be approxi-mated with sufficient accuracy for practical purposes.

The pre-existing rule, by which alone commerce can be "regulated," is a matter of sci-ence ; and is already known, so far as the natural principle of justice, in relation to con-tracts, is known. The natural right of all men to make all contracts whatsoever, that arenaturally and intrinsically just and lawful, furnishes the pre-existing rule, by which alonecommerce can be regulated. And it is the only rule, to which congress have any constitu-tional power to make commerce conform.

When all commerce, that is intrinsically just and lawful, is secured and protected, and all


commerce that is intrinsically unjust and unlawful, is prohibited, then commerce is regu-lated, and not before.*

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 naturalright to do their own businesses in all such ways—that are naturally and intrinsi-cally just and lawful—as they may choose to do them in. These lawmakers andcourts dare not always deny, utterly and plainly, men's right to do their own busi-nesses in their own ways; but they will assume uto regulate" them; and in pre-tending simply "to regulate" them, they contrive "to regulate" men out of alltheir 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 fiftyyears, 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, giveand receive, in their dealings with each other. It has also meant to say who shallhave the control of the licensed money; instead of making it mean the suppressiononly of false and dishonest money, and then leaving all men free to exercise theirnatural 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 anyor all contracts may mutually agree upon.

Marshall's false assumptions are numerous and tyrannical. They all have thesame 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 numerousthat 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 theUnited States—a paper (I repeat and reiterate) which nobody ever signed, whichbut 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 alsonobody ever signed, which but few persons ever read, and which the great body ofthe 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 theabolition of justice itself, the highest moral law of the Universe; and that all theirown natural, inherent, inalienable rights to the benefits of that law, shall be an-nulled; and that they themselves, and everything that is theirs, shall be givenover into the irresponsible custody of some forty little cabals of blockheads andvillains called lawmakers—blockheads, who imagine themselves wiser than justiceitself, and villains, who care nothing for either wisdom or justice, but only for the

*The above extracts are from a pamphlet published by me in 1864, entitled " Considerations forBankers," etc., pp. 55, 56, 57.


gratification of their own avarice and ambitions; and that these cabals shall be in-vested with the right to dispose of the property, liberty, and lives of all the rest ofthe people, at their pleasure or discretion; or, as Marshall says, "their wisdomand discretion!"

If such an assumption as that does not embrace nearly, or quite, all the otherfalse assumptions that usurpers and tyrants can ever need, to justify themselves inrobbing, enslaving, and murdering all the rest of mankind, it is less comprehensivethan it appears to me to be.

2. In the following paragraph may be found another batch of Marshall's falseassumptions.

The right to contract is the attribute of a free agent, and he may rightfully coerce per-formance from another free agent, who violates his faith. Contracts have consequently anintrinsic obligation. [But] When men come into society, they can no longer exercise thisoriginal natural right of coercion. It would be incompatible with general peace, and istherefore surrendered. Society prohibits the use of private individual coercion, and givesin its place a more safe and more certain remedy. But the right to contract is not surren-dered 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 samecase, Marshall convicts himself of the grossest falsehood. He acknowledges thatmen have a natural right to make their own contracts; that their contracts havean " intrinsic obligation "; and that they have an " original and natural right" tocoerce performance of them. And yet he assumes, and virtually asserts, that menvoluntarily "come into society" and "surrender" to "society" their natural right tocoerce the fulfilment of their contracts. He assumes, and virtually asserts, thatthey do this, upon the ground, and for the reason, that " society gives in its place amore safe and more certain remedy"; that is, "a more safe and more certain" en-forcement 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, andmeans to say, that, in consideration of such "surrender" of their "original and natu-ral right of coercion," "society" pledges itself to them that it will give them this "moresafe and more certain remedy " ; that is, that it will more safely and more certainlyenforce 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 unquestion-able."—p. 347.

And as an illustration of the exercise of this right of "society" to prohibit suchcontracts " 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

94 A Letter to Grover Cleveland*

the instrument ever became a contract. They deny it all original obligation; and cannotimpair that which never came into existence.—p. 348.

All this is as much as to say that, when a man has voluntarily " come into soci-ety," and has "surrendered" to society "his original and natural right of coerc-ing" the fulfilment of his contracts, and when he has done this in the confidencethat society will fulfil its pledge to "give him a more safe and more certain coer-cion" 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 acknow-ledge 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 itwas solely in consideration of our pledge to you, that we would give you a more safe andmore certain coercion than you were capable of yourself, that you "surrendered" to usyour right to coerce a fulfilment of them. And we acknowledge that, according to ourpledge, you have now a right to require of us that we coerce a fulfilment of them. But afteryou had "surrendered" to us your own right of coercion, we took a different view of thepledge we had given you; and concluded that it would be "mischievous" to allow you tomake such contracts. We therefore "prohibited" your making them. And having pro-hibited the making of them, we cannot now admit that they have any "obligation." Wemust therefore decline to enforce the fulfilment of them. And we warn you that, if you at-tempt to enforce them, by virtue of your own "original and natural right of coercion," weshall be obliged to consider your act a breach of "the general peace," and punish you ac-cordingly. We are sorry that you have lost your property, but "society" must judge as towhat contracts are, and what are not, "mischievous." We can therefore give you no re-dress. 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 allmen's "original and natural right" to make their own contracts, and enforce thefulfilment of them; and of the way in which "society" now justifies itself in pro-hibiting all contracts, though "intrinsically obligatory," which it may choose toconsider "mischievous." And he asserts that, in this way, "society" has acquired11 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 "intrinsi-cally obligatory," and to coerce the fulfilment of them, is one of the most valuableand indispensable of all human possessions. But Marshall assumes that a manmay "surrender" this right to "society," under a pledge from "society," that itwill secure to him "a more safe and certain" fulfilment of his contracts, than heis 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 pledgeto him, but may also prohibit his own exercise of his own " original and naturalright," 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) pro-


perty with him (A), for safekeeping, under a pledge that he (A) will keep it moresafely and certainly than B can do it himself, A thereby acquires an " unquestionableright" 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 con-stitutional law of this country; that constitutional law, which he was so famous forexpounding. It is the kind of assumption, by which he expounded the peo pie outof all their " original and natural rights."

He had just as much right to assume, and practically did assume, that the peo-ple had voluntarily "come into society," and had voluntarily "surrendered" totheir governments all their other natural rights, as well as their " original and natu-ral 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 yonrgovernments all your natural rights, of every name and nature whatsoever, for safe keep-ing ; and now that these governments have, by your own consent, got possession of all yournatural rights, they have an "unquestionable right*' to withhold them from you forever.

If it were not melancholy to see mankind thus cheated, robbed, enslaved, andmurdered, on the authority of such naked impostures as these, it would be, to thelast degree, ludicrous, to see a man like Marshall—reputed to be one of the firstintellects the country has ever had—solemnly expounding the "constitutionalpowers," as he called them, by which the general and State governments were au-thorized 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—certainlymore than any other man within the last eighty-five years — to make our govern-ments, State and national, what they are. He has, for more than sixty years, beenesteemed an oracle, not only by his associates and successors on the bench of theSupreme 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 thesixty 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 usurpationgenerally, runs through all the operations of our governments, State and national.There is nothing genuine, nothing real, nothing true, nothing honest, to be foundin any of them. They all proceed upon the principle, that governments have allpower, and the people no rights.

SECTION XXV.

But perhaps the most absolute proof that our national lawmakers and judgesare as regardless of all constitutional, as they are of all natural, law, and that their


statutes and decisions are as destitute of all constitutional, as they are of all natu-ral, authority, is to be found in the fact that these lawmakers and judges havetrampled upon, and utterly ignored, certain amendments to the constitution, whichhad been adopted, and (constitutionally speaking) become authoritative, as earlyas 1791; only two years after the government went into operation.

If these amendments had been obeyed, they would have compelled all congressesand courts to understand that, if the government had any constitutional powers atall, they were simply powers to protect men's natural rights, and not to destroy anyof them.

These amendments have actually forbidden any lawmaking whatever in viola-tion of men's natural rights. And this is equivalent to a prohibition of any law-making at all. And if lawmakers and courts had been as desirous of preservingmen's natural rights, as they have been of violating them, they would long agohave found out that, since these amendments, the constitution authorized no law-making at all.

These amendments were ten in number. They were recommended by the firstcongress, at its first session, in 1789; two-thirds of both houses concurring. Andin 1791, they had been ratified by all the States: and from that time they imposedthe 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 adoptionhad been procured only with great difficulty, and in spite of great objections. Theseobjections were that, as originally framed and adopted, the constitution contained no ade-quate security for the private rights of the people.

These objections were admitted, by very many, if not all, the friends of the con-stitution themselves, to be very weighty; and such as ought to be immediately re-moved by amendments. And it was only because these friends of the constitutionpledged themselves to use their influence to secure these amendments, that theadoption of the constitution itself was secured. And it was in fulfilment of thesepledges, and to remove these objections, that the amendments were proposed andadopted.

The first eight amendments specified particularly various prohibitions upon thepower of congress; such, for example, as those securing to the people the free exer-cise o£ religion, the freedom of speech and the press, the right to keep and beararms, etc., etc. Then followed the ninth amendment, in these words:

The enumeration in the constitution, of certain rights, [retained by the people] shall notbe construed to deny or disparage others retained by the people.

Here is an authoritative declaration, that "the people" have "other rights" thanthose specially "enumerated in the constitution"; and that these "other rights"were "retained by the people"; that is, that congress should have no power to infringethem.

A Letter to Grove?* Cleveland. 97

What, then, were these "other rights," that had not been "enumerated"; butwhich 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 consid-erable 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 ofthem, the necessary, the legal, the inevitable inference is, that they were all "re-tained "; 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 theywere constitutionally bound to do, they would soon have found that they had reallyno lawmaking power whatever left to them; because they would have found thatthey could make no law at all, of their own invention, that would not violate men'snatural rights.

All men's natural rights are co-extensive with natural law, the law of justice; orjustice as a science. This law is the exact measure, and the only measure, of anyand every man's natural rights. No one of these natural rights can be taken fromany man, without doing him an injustice; and no more than these rights can begiven 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 andhis property, everything that he pleases to do, and that justice towards others doesnot forbid him to do; and, secondly, to be free from all compulsion, by others, todo anything whatever, except what justice to others requires him to do.

Such, then, has been the constitutional law of this country since 1791; admit-ting, for the sake of the argument—what I do not really admit to be a fact—thatthe constitution, so called, has ever been a law at all.

This amendment, from the remarkable circumstances under which it was pro-posed and adopted, must have made an impression upon the minds of all the publicmen of the time; although they may not have fully comprehended, and doubtlessdid not fully comprehend, its sweeping effects upon all the supposed powers of thegovernment.

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, forat 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 whichthis, and the other nine amendments, were proposed and adopted. He was thirty-two years old (lacking seven days) when the constitution, as originally framed, waspublished (September 17,1787); and he was a member of the Virginia conventionthat ratified it. He knew perfectly the objections that were raised to it, in thatconvention, on the ground of its inadequate guaranty of men's natural rights. Heknew with what force these objections were urged by some of the ablest members


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 verystringent amendments, for securing men's natural rights, be made to the constitu-tion. And he knew further, that, but for these amendments being recommended,the constitution would not have been adopted by the convention.*

The amendments proposed were too numerous to be repeated here, although theywould be very instructive, as showing how jealous the people were, lest their natu-ral rights should be invaded by laws made by congress. And that the conventionmight do everything in its power to secure the adoption of these amendments, itresolved as follows:

And the convention do, in the name and behalf of the people of this commonwealth, enjoinit upon their representatives in congress to exert all their influence, and use all reasonableand legal methods, to obtain a ratification of the foregoing alterations end provisions, in themanner provided by the 5th article of the said Constitution; and, in all congressional lawsto be .passed in the meantime, to conform to the spirit of these amendments, as far as thesaid Constitution will admit. — Elliot's Debates, Vol. 3, p. 661.

In seven other State conventions, to wit, in those of Massachusetts, New Hamp-shire, Rhode Island, New York, Maryland, North CaroKna,and South Carolina, theinadequate 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 pro-visions 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 ratificationof 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 twelveamendments, and added:

And the Convention do, in the name and behalf of the people of this State, enjoin it upontheir representatives in congress, at all times, until the alterations and provisions aforesaidhave been considered agreeably to the fifth article of the said Constitution, to exert all theirinfluence, and use all reasonable and legal methods, to obtain a ratification of the said alter-ations and provisions, in such manner as is provided in the article.— Elliot's Debates, Vol.l,p. 326.

* 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 Rhode Island convention, in ratifying the constitution, put forth a declara-tion of rights, in eighteen articles, and also proposed twenty-one amendments tothe constitution; and prescribed as follows:

And the Convention do, in the name and behalf of the people of the State of Rhode Islandand Providence Plantations, enjoin it upon their senators and representative or represent-atives, which may be elected to represent this State in congress, to exert all their influ-ence, and use all reasonable means, to obtain a ratification of the following amendments tothe said Constitution, in the manner prescribed therein; and in all laws to be passed by thecongress in the mean time, to conform to the spirit of the said amendments, as far as theConstitution will admit.— Elliot's Debates, Vol. l,p. 335.

The New York convention, that ratified the constitution, proposed a great manyamendments, 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 rea-sonable 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 meantime, to conform to the spirit of the said amendments as far as the Constitution will admit.—Elliot's Debates, Vol. I, p. 329.

The New York convention also addressed a "CIRCULAR LETTER" to the gov-ernors 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 theUnion.

POUGHKEEPSIE, JULY 28, 1788.Sir, We, the members of the Convention of this State, have deliberately and maturely con-

sidered the Constitution proposed for the United States. Several articles in it appear so ex-ceptionable to a majority of us, that nothing but the fullest confidence of obtaining a revisionof them by a general convention, and an invincible reluctance to separating from our sisterStates, could have prevailed upon a sufficient number to ratify it, without stipulating forprevious amendments. We all unite in opinion, that such a revision will be necessary torecommend 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 severalof the States, as well as by this; and we think it of great importance that effectual measuresbe immediately taken for calling a convention, to meet at a period not far remote; for weare convinced that the apprehensions and discontents, which those articles occasion, cannotbe removed or allayed, unless an act to provide for it be among the first that shall be passedby the new congress.—Elliot's Debates, Vol. 2, p. 413.

In the Maryland convention, numerous amendments were proposed, and thirteenwere 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 tothem, that none at all were formally recommended to congress. But, says Elliot:


All the members, who voted for the ratification [of the constitution], declared that theywould engage themselves, under every tie of honor, to support the amendments they hadagreed to, both in their public and private characters, until they should become a part of thegeneral government.— Elliot's Delates, 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 thegreat principles of civil and religious liberty, and the inalienable rights of the people, to-gether with amendments to the most ambiguous and exceptionable parts of the said consti-tution of government, ought to be laid before congress, and the convention of States thatshall or may be called for the purpose of amending the said Constitution, for their consider-ation, previous to the ratification of the Constitution aforesaid, on the part of the State ofNorth Carolina. — Elliot's Debates, Vol. \,p. 332.

The South Carolina convention, that ratified the constitution, proposed certainamendments, and

Resolved, That it be a standing instruction to all such delegates as may hereafter beelected to represent this State in the General Government, to exert their utmost abilitiesand influence to effect an alteration of the Constitution, conformably to the foregoing reso-lutions.— Elliot's Debates, Vol. l.p. 325.

In the Pennsylvania convention, numerous objections were made to the consti-tution, but it does not appear that the convention, as a convention, recommendedany specific amendments. But a strong movement, outside of the convention, wasafterwards 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, Elliotgives no accounts at all.

I therefore cannot state the grounds, on which the adoption of the constitutionwas opposed. They were doubtless very similar to those in the other States. Thisis rendered morally certain by the fact, that the amendments, soon afterwards pro-posed by congress, were immediately ratified by all the States. Also by the fur-ther fact, that these States, by reason of the smallness of their representation inthe popular branch of congress, would naturally be even more jealous of theirrights, than the people of the larger States.

It is especially worthy of notice that, in some, if not in all, the conventions thatratified the constitution, although the ratification was accompanied by such urgentrecommendations of amendments, and by an almost absolute assurance that theywould 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.)

A Letter to Graver Cleveland, 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 havebeen spurned with contempt, as it deserved to be.

And yet now, owing to the usurpations of lawmakers and courts, the originalconstitution—with the worst possible construction put upon it—has been carriedinto 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 theconstitution in 1791. Ten years after, in 1801, he became Chief Justice. It thenbecame his sworn constitutional duty to scrutinize severely every act of congress,and to condemn, as unconstitutional, all that should violate any of these naturalrights. 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 soutterly antagonistic to all his ideas of government, that he chose to ignore it alto-gether, 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 thepeople, he chose to assume—for it was all a mere assumption, a mere making aconstitution out of his own head, to suit himself—that the people had all volun-tarily "come into society," and had voluntarily "surrendered" to "society" alltheir natural rights, of every name and nature—trusting that they would be se-cured; and that now, "society," having thus got possession of all these naturalrights of the people, had the "unquestionable right" to dispose of them, at thepleasure—or, as he would say, according to the "wisdom and discretion" — of afew 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 thisforce and authority, but chose to trample them under his feet, he was a perjuredtyrant and traitor.

What, also, are we to think of all the judges,—forty in all,—his associates and


successors, who, for eighty years, have been telling the people that the governmenthas 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 calledthem, who have been supposed to have won such immortal honors, as " expound-ers of the constitution," but who seem never to have discovered in it any securityfor men's natural rights? Is their apparent ignorance, on this point, to be accountedfor by the fact, that that portion of the people, who, by authority of the govern-ment, 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 plunderthem?

If any one will now look back to the records of congress and the courts, for thelast 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 hadbeen recognized—would have stood as an insuperable barrier against all the am-bition and rapacity—all the arbitrary power, all the plunder, and all the tyranny—which the ambitious and rapacious classes have determined to accomplishthrough the agency of the government.

The fact that these classes have been so successful in perverting the constitu-tion (thus amended) from an instrument avowedly securing all men's naturalrights, into an authority for utterly destroying them, is a sufficient proof that nolawmaking power can be safely intrusted to any body, for any purpose whatever.

And that this perversion of the constitution should have been sanctioned by allthe judicial tribunals of the country, is also a proof, not only of the servility, au-dacity, and villainy of the judges, but also of the utter rottenness of our judicialsystem. It is a sufficient proof that judges, who are dependent upon lawmakersfor their offices and salaries, and are responsible to them by impeachment, cannotbe 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 beenpermitted 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 tothe States, are reserved to the States respectively, or to the people.

This amendment, equally with the ninth, secures to "the people" all their natu-ral 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."


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 suchlawmaking "powers" had been "delegated to the United States by the constitu-tion."

But in this belief, they were entirely mistaken. And why?1. Because it is a natural impossibility that any lawmaking "powers" what-

ever 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 beparted with, or delegated, by one person to another. And all contracts whatso-ever, for such a purpose, are necessarily absurd and void contracts.

For example. I cannot delegate to another man any right to make laws—thatis, 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 lib-erty ; to give myself, or sell myself, to him as a slave. Such a contract would bean 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 hisown invention — and compel a third person to obey them.

For example. I cannot delegate to A any right to make laws—that is, laws ofhis 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 law-making 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 attemptedto do, or may have believed they had power to do, in the way of delegating suchpowers.

But not only were no lawmaking powers "delegated to the United States by theconstitution," but neither were any judicial powers so delegated. And why? Be-cause it is a natural impossibility that one man can delegate his judicial powersto another.

Every man has, by nature, certain judicial powers, or rights. That is to say, hehas, by nature, the right to judge of, and enforce his own rights, and judge of, andredress his own wrongs. But, in so doing, he must act only in accordance withhis 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 con-science to another, it is naturally impossible that he can delegate to another hisjudicial rights or powers.

So, too, every man has, by nature, a right to judge of, and enforce, the rights,


and judge of, and redress the wrongs, of any and all other men. This right is in-cluded in his natural right to maintain justice between man and man, and to pro-tect the injured party against the wrongdoer. But, in doing this, he must actonly in accordance with his own judgment and conscience, and subject to his ownpersonal responsibility for any error he may commit, either through ignorance or

But, inasmuch as, in this case, as in the preceding one, he can neither delegatenor impart his own judgment or conscience to another, he cannot delegate hisjudicial power or right to another.

But not only were no lawmaking or judicial powers " delegated to the UnitedStates by the constitution," neither were any executive powers so delegated. Andwhy? Because, in a case of justice or injustice, it is naturally impossible that anyone man can delegate his executive right or power to another.

Every man has, by nature, the right to maintain justice for himself, and for allother persons, by the use of so much force as may be reasonably necessary for thatpurpose. But he can use the force only in accordance with his own judgment andconscience, 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 conscienceto another, he cannot delegate his executive power or right to another.

The result is, that, in all judicial and executive proceedings, for the maintenance ofjustice, every man must act only in accordance with his own judgment and conscienceand on Ms own personal responsibility for any wrong he may commit; whether such wrongbe committed through either ignorance or design.

The effect of this principle of personal responsibility, in all judicial and execu-tive proceedings, would be—or at least ought to be—that no one would give anyjudicial opinions, or do any executive acts, except such as his own judgment andconscisnce should approve, and such as he would be willing to be held personally re-sponsible for.

No one could justify, or excuse, his wrong act, by saying that a power, or au-thority, 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, norexecutive powers ever were, or ever could have been, "delegated to the United Statesby the constitution "; no matter how honestly or innocently the people of that daymay have believed, or attempted, the contrary.

And what is true, in this matter, in regard to the national government, is, forthe same reasons, equally true in regard to all the State governments.

But this principle of personal responsibility, each for his own judicial or execu-tive acts, does not stand in the way of men's associating, at pleasure, for the main-tenance of justice; and selecting such persons as they think most suitable, forjudicial and executive duties; and requesting them to perform those duties; and


then paying them for their labor. But the persons, thus selected, must still per-form their duties according to their own judgments and consciences alone, andsubject to their own personal responsibility for any errors of either ignorance ordesign.

To make it safe and proper for persons to perform judicial duties, subject totheir personal responsibility for any errors of either'ignorance or design, two thingswould seem to be important, if not indispensable, viz.:

1. That, as far as is reasonably practicable, all judicial proceedings should bein writing; that is, that all testimony, and all judicial opinions, even to quite mi-nute details, should be in writing, and be preserved; so that judges may alwayshave it in their power to show fully what their acts, and their reasons for theiracts, have been; and also that anybody, and everybody, interested, may foreverafter have the means of knowing fully the reasons on which everything has beendone; and that any errors, ever afterwards discovered, may be corrected.

2. That all judicial tribunals should consist of so many judges—within anyreasonable number—as either party may desire; or as may be necessary to pre-vent any wrong doing, by any one or more of the judges, either through ignoranceor design.

Such tribunals, consisting of judges, numerous enough, and perfectly competentto settle justly probably ninety-nine one-hundredths of all the controversies thatarise among men, could be obtained in every village. They could give their im-mediate attention to every case; and thus avoid most of the delay, and most of theexpense, now attendant on judicial proceedings.

To make these tribunals satisfactory to all reasonable and honest persons, it isimportant, and probably indispensable, that all judicial proceedings should be had,in the first instance, at the expense of the association, or associations, to which theparties 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 insurancecompany; that is, each member should pay his just proportion of the expense ne-cessary for protecting all.

A single individual could not reasonably be expected to delay, or forego, the ex-ercise 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, andwithout expense to him. But having paid his proper proportion of the expensenecessary for the protection of all, he has then a right to demand prompt and com-plete protection for himself.

Inasmuch as it cannot be known which party is in the wrong, until the trial hasbeen had, the expense of both parties must, in the first instance, be paid by the as-sociation, 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


the case) so clearly in the wrong as to have had no justification for putting the as-sociation to the expense of a trial, he then may properly be compelled to pay thecost of all the proceedings.

If the parties to a suit should belong to different associations, it would be rightthat the judges should be taken from both associations; or from a third associa-tion, with which neither party was connected.

If, with all these safeguards against injustice and expense, a party, accused of awrong, 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 easyand natural a thing it would be, to form as many voluntary and mutually protec-tive judicial associations, as might be either necessary or convenient, in order tobring justice home to every man's door; and to give to every honest and dishonestman, all reasonable assurance that he should have justice, and nothing else, donefor 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 andproperty; and having at their beck brute force enough to compel absolute sub-mission to their decrees, whether just or unjust.

Can a more decisive or infallible condemnation of our governments be conceivedof, than the absence of all courts of justice, and the absolute power of their courtsof injustice?

Yes, they lie under still another condemnation, to wit, that their courts are notonly courts of injustice, but they are also secret tribunals; adjudicating all causesaccording to the secret instructions of their masters, the lawmakers, and their au-thorized interpreters, their supreme courts.

I say secret tribunals, and secret instructions, because, to the great body of the peo-ple, 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 ingreat volumes of statutes and supreme court reports, which the mass of the peoplehave neither money to buy, nor time to read; and would not understand, if theywere to read them.

These statutes and reports are so far out of reach of the people at large, that theonly knowledge a man can ordinarily get of them, when he is summoned before


one of the tribunals appointed to execute them, is to be obtained by employing anexpert—or so-called lawyer—to enlighten him.

This expert in injustice is one who buys these great volumes of statutes and re-ports, and spends his life in studying them, and trying to keep himself informedof their contents. But even he can give a client very little information in regardto them; for the statutes and decisions are so voluminous, and are so constantlybeing made and unmade, and are so destitute of all conformity to those naturalprinciples of justice which men readily and intuitively comprehend; and are more-over capable of so many different interpretations, that he is usually in as greatdoubt—perhaps in even greater doubt—than his client, as to what will be the re-sult 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 intwo, of gaining it. But no matter how just your cause may be, you need have no hope thatthe tribunal that tries it, will be governed by any such consideration, if the statute book, orthe past decisions of the supreme court, are against you. So, also, no matter how unjustyour cause may be, you may nevertheless expect to gain it, if the statutes and past decisionsare in your favor. If, therefore, you have money to spend in such a lottery as this, I willdo 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 inno-cent or guilty, you have at least one chance in two, of an acquittal. But no matter how in-nocent you may be of any real crime, you need have no hope of an acquittal, if the statutebook, 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 toescape. But your reputation, your liberty, or perhaps your life, is at stake. To save theseyou can afford to risk your money, even though the result is so uncertain. Therefore youhad best give me your money, and I will do my best to save you, whether you are innocentor guilty.

But for the great body of the people,—those who have no money that they canafford to risk in a lawsuit, — no matter what may be their rights in either a civilor criminal suit,—their cases are hopeless. They may have been taxed, directlyand indirectly, to their last dollars, for the support of the government; they mayeven 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 andmilitary services were professedly extorted from them,—they are coolly told thatthe government offers no justice, nor even any chance or semblance of justice, ex-cept 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


or criminal suit, the client, whether rich or poor, is nearly or quite as much in thedark as to his fate, and as to the grounds on which his fate will be determined, asthough he were to be tried by an English Star Chamber court, or one of the secrettribunals of Russia, or even the Spanish Inquisition.

Thus in the supreme exigencies of a man's life, whether in civil or criminalcases, where his property, his reputation, his liberty, or his life is at stake, he isreally to be tried by what is, to him, at least, a secret tribunal; a tribunal that isgoverned by what are, to him, the secret instructions of lawmakers, and supremecourts; neither of whom care anything for his rights of property in a civil suit, orfor his guilt or innocence in a criminal one; but only for their own authority aslawmakers and judges.

The bystanders, at these trials, look on amazed, but powerless to defend theright, or prevent the wrong. Human nature has no rights, in the presence ofthese infernal tribunals.

Is it any wonder that all men live in constant terror of such a government asthat*? Is it any wonder that so many give up all attempts to preserve their natu-ral rights of person and property, in opposition to tribunals, to whom justice andinjustice 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 tothe 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 battlesfor them.

These champions, trained to such contests, and armed, not only with all theweapons their own skill, cunning, and power can supply, but also with all the ini-quitous laws, precedents, and technicalities that lawmakers and supreme couriscan give them, for defeating justice, and accomplishing injustice, can—if not al-ways, yet none but themselves know how often—offer their clients such chancesof victory—independently of the justice of their causes—as to induce the dishon-est to go into court to evade justice, or accomplish injustice, not less often perhapsthan 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 itthe business of their lives to equip themselves for these conflicts, and sell theirservices for a price.

Is there any one of these men, who studies justice as a science, and regards thatalone in all his professional exertions? If there are any such, why do we so sel-dom, 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


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 lawma-kers, judges, etc., etc., are? Why are so many of them so ambitious to becomelawmakers and judges themselves?

Is it too much to hope for mankind, that they may sometime have courts ofjustice, instead of such courts of injustice as these?

If we ever should have courts of justice, it is easy to see what will become ofstatute books, supreme courts, trial by battle, and all the other machinery of fraudand tyranny, by which the world is now ruled.

If the people of this country knew what crimes are constantly committed bythese courts of injustice, they would squelch them, without mercy, as unceremoni-ously as they would squelch so many gangs of bandits or pirates. In fact, banditsand pirates are highly respectable and honorable villains, compared with thejudges 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 ourproperty, liberty, or life. They do not profess to be anything but such villains asthey really are. They do not claim to have received any " Divine " authority forrobbing, enslaving, or murdering us at their pleasure. They do not claim immu-nity for their crimes, upon the ground that they are duly authorized agents of anysuch invisible, intangible, irresponsible, unimaginable thing as "society," or "theState." They do not insult us by telling us that they are only exercising that au-thority 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 tosecure our happiness and prosperity, and not from any selfish motives of theirown. 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 donot tell us that we are the freest and happiest people on earth, inasmuch as eachof 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 libertyand order would be destroyed, that society itself would go to pieces, and man goback to barbarism, if it were not for the care, and supervision, and protection, theylavish 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 bene-fit, out of the money they take from us. They do not carry their heads high, aboveall other men, and demand our reverence and admiration, as statesmen, patriots,and benefactors. They do not claim that we have voluntarily "come into theirsociety," 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 redress-ing our own wrongs. They do not tell us that they have established infallible su-preme courts, to whom they refer all questions as to the legality of their acts, andthat they do nothing that is not sanctioned by these courts. They do not attempt


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 decencyto 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 cantake from us. In short, they acknowledge themselves hostes humani generis: ene-mies of the human race. They acknowledge it to be our unquestioned right andduty to kill them, if we can; that they expect nothing else, than that we will killthem, 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 thelawmakers by whom these courts are established.

Such, Mr. Cleveland, is the real character of the government, of which you arethe nominal head. Such are, and have been, its lawmakers. Such are, and havebeen, 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.

O TREASON . . .

Lysander SpoonerLysander Spooner (1808-1887) was a Massachusetts lawyer noted for his

vigorous and brilliant opposition to the encroachment of the State upon theliberty of the individual. His writings on the unconstitutionally of slaveryinfluenced pre-Civil War thought. His challenge to the postal monopoly (he setup a thriving private post) resulted in an Act of Congress sharply reducingpostage rates.

An analysis of Spooner's views appears in Dr. James J. Martin's Men Againstthe State (New York: Libertarian Book Club, Inc., 1957 and 1963), and inhis introductions to No Treason: The Constitution of No Authority and ALetter to Thomas F. Bayard.

NO TREASON

The Constitution of No Authority

and

A LETTER TO

THOMAS F. BAYARD

"Challenging his right—and that of all the other so-called sen-ators and representatives in Congress—to exercise any legislativepower whatever over the people of the United States."

by

LYSANDER SPOONER

With Introductions by James J. Martin

The following two articles were published by the author inBoston. No Treason: The Constitution of No Authoritywas published in 1870 and A Letter to Thomas F. Bayardwas published in 1882.

In keeping with the special interest created by these re-prints, Pine Tree Press reproduces the actual title pages ofthe two articles.

Preface

James J. Martin is chairman of the Department of History, Ram-part College Graduate School, Larkspur, Colorado. A revisionist,Dr. Martin has won a broad reputation for scholarship in his workas instructor at Deep Springs College, San Francisco State College,Northern Illinois University, and the University of Michigan, andfor his published works which include American Liberalism andWorld Politics, 1931-1941 (New York: The Devin-Adair Company,1964); Men Against the State (first published in 1953 and repub-lished in 1957); and Meditations on the Early Wisdom of John Fos-ter Dulles (1958). He is the editor of Paul Eltzbacher's Anarchism(1960) and Max Stirner's The Ego and His Own (1963). He hascontributed to the Dictionary of American Biography (1958) andthe Encyclopaedia Britannica (1962).

Dr. Martin was born in St. Leonard, New Brunswick on Septem-ber 18, 1916. He received his bachelor of arts degree in history atthe University of New Hampshire in 1942, his master of arts degree(1945), and doctor of philosophy (1949) in history, at the Universityof Michigan at Ann Arbor, and has won many honors in the courseof his career.

It is entirely due to the efforts of Dr. Martin that this publication,containing two of Lysander Spooner's most significant works, isappearing at this time. Spooner, after nearly a hundred years, re-mains a controversial figure. His crisp and incisive verbiage, hisutter ruthlessness in pursuit of an important though possibly obscurepoint, have made him something of a paladin in libertarian circles.If lawyers, judges, and the host of government employees wouldexamine what Lysander Spooner has to say about their positions inascendancy over ordinary people, something of a long-needed hu-mility might evolve.

In any case, Dr. Martin's untiring labor in bringing to light analmost forgotten argument in support of pure liberty has resultedin this slim volume, which includes his own valued biography ofLysander Spooner and something of the background from whichMr. Spooner wrote.

Robert LeFevreDean, Rampart College

Table of Contents

Preface by Robert LeFevre v

Introduction by James J. Martin 1

No Treason: The Constitution of No Authority 9

Introduction by James J. Martin 56

A Letter to Thomas F. Bayard 65

American Letter Mail Co 70

Illustrations

Lysander Spooner ii

Original Title Page: No Treason 7

Original Title Page: A Letter 61

American Letter Mail Co. Cover 71

INTRODUCTION

by James J. Martin

Since late Neolithic times, men in their political capacity havelived almost exclusively by myths. And these political myths havecontinued to evolve, proliferate, and grow more complex and intri-cate, even though there has been a steady replacement of one byanother, over the centuries. A series of entirely theoretical con-structs, sometimes mystical, usually deductive and speculative, theyseek to explain the status and relationships in the community sinceit became discernibly organized, politically. But in essence theseconstructs are all alike in that with varying degrees of persuasive-ness they attempt to examine the origins of the State with little orno attention to its historic record, and then try to justify and fortifyit in the face of criticism or objection.

In the long millennia during which theological authorizations ofone kind or another were principally employed to sanctify the Stateand to promote its safety and continuity, we know very little of thecritics and their products. Threats of divine retaliation by the godsupon any so sinful as to question the validity of the State may havebeen sufficient to inhibit the crime of deviationism. On the otherhand, perhaps many ages may have had a formidable roster ofadversaries of the State, but theirs must apparently have been large-ly an oral tradition, and has been lost to posterity with hardly atrace. A scrap or two have come down to us from the Orient, butancient literary survivals are essentially a Statist apologia.

Undoubtedly the largest part of such criticisms may have sub-jectively denounced the more obvious vulnerabilities of the institu-tion, particularly its capacity for promoting institutionalized rob-bery, murder, injustice, and tyranny. Traces of such protest arediscernible in the traditions of many peoples.

But the unvarying, wearisome replacement of one State by an-other for thousands of years reveals the depth of the fixation human-kind has had concerning it, in part testifying, as Ludwig Gumplo-wicz and Franz Oppenheimer and others have observed, to thelong-standing drive to make a living without working, a stage which

2 Lysander Spooner

has been tied to the evolution of productive processes to a pointwhere a surplus existed beyond the needs of the producer. (Thesteady increase in the numbers who batten upon the substance ofthe productive community in the name of the State testifies in turnnot to a mellowing expansiveness, a generous enlargement of thepreying nomad band, as Oppenheimer would have it, but to theprodigious increase in production totals beyond subsistence or sur-vival demands of the former.)

Oppenheimer described the United States of America a half-century ago (in The State [Indianapolis: Bobbs-Merrill, 1914], p.17) as "among the most powerful State-formations in all history."Its prodigious growth since that time would surely have promptedhim to elevate it to first place, and perhaps decades ago, had helived to make such observations.

There is no apparent logic or law regulating the age-old conflictbetween the individual and the collectivity, between the State andthe idea or the reality of the voluntary social system. However,in America, the site of the evolution of the mightiest State of alltime, there has been an inverse ratio between its growth and theproduction of native anti-Statism. Vasilii Klyuchevski, the giant ofhistorical scholarship in the last century of Czarist Russia, put itbest: "The State swells up; the people diminish." Part of the reasonfor this has been the much more opaque and intangible nature ofthe adversary. No stylized, symbolic vested agents, such as perhapsa traditional oligarchical priesthood of antiquity or a divine-rightmonarch, have existed here to provide a convenient target for wordor deed. The tying of political tenure to astronomy instead of todynasty has removed the possibility of a long-enduring personalsymbol from the scene. And a massive obstacle has been created asa result of the homogenization growing out of mass voting, masstaxpaying, mass gun-bearing, and mass dispersal of the tidbitsbestowed by the State; a vast, gray, shapeless enterprise has comeinto being, with which it has been difficult to come to grips, as inthe manner of classical conflicts with the State.

One of the important consequences of all this has been a dif-ference in the structure and strategy of Statist apologetics in Amer-ica. There has been a marked diminution over the years in theinvocation of the Deity as responsible for its installation and over-all direction and protection. Divine-right and related theories havenever enjoyed a vogue at all. The American genius has been con-

NO TREASON 3

centrated in perfecting vague and generalized secular verbiage;elusive, imprecise terminology which often sets the line for seem-ingly interminable battlegrounds of conflicting interpretation. Ex-pressions such as "general welfare," "public good," "social contract,""general will," and many others, come to mind.

Of course, the crowning achievement in the American experiencewas the production of the Constitution, the ultimate verbal bas-tion on which is perched the American State. Constitution-worshipis our most extended public political ritual, frequently super-vised as often by mountebanks as by the sincere. This is an unusualenterprise in world history, in view of the casual attitude towardsuch developments in most places and at most times. In point ofservice, it is easily the oldest such political document in history,which adds much to the awe and veneration in which it is held.For though we have had over a century of native critics and op-ponents of our State, from Warren, Thoreau, and Tucker down toAlbert Jay Nock and Frank Chodorov, the Constitution has largelybeen exempted or neglected in the unfolding of this critical tradi-tion.

In America, we see, therefore, a different basis for the defenseof the State. Lacking dynastic families, entrenched aristocracies,nobilities, royalties, and other ostensible residuaries of State powerand beneficiaries of State emoluments, both the attack and thedefense have moved to the abstract sector. For sure, in the finalanalysis, the State must be viewed as certain people. But Marx'sdefinition of the State as the executive committee of the ruling classmeans little in an American context. If one can say that such anentity has ever existed here, its composition has been so mixed andso varying, and its tenure so transitory, that for specific purposessuch a description is almost useless. No sustained, unbroken line ofmaterial profiteers from our State can be established. The bewilder-ing turnover of elected personnel and the multiplicity of their for-tunes virtually eliminate such temporary wielders of power fromqualifying as reliable custodians of the State. This has been drama-tized many times by the dispossessed from office complaining bitter-ly and vehemently over their unhappy treatment by the State, intheir turn. (One need not mention the electrifying phenomenon ofthe last fifty years, namely, the growth of administrative govern-ment, with increasingly larger amounts of power and discretion inthe hands of persons who have not even been elected to anything,

4 Lysander Spooner

and who often stand at the elbow of the familiar "responsible" publicfigures and who are more often than not the real authors of thepolicies and programs for which the latter are credited or blamed,as political fortunes would have it.)

Consequently, in view of the evanescent nature of power tenurein this country, the frequent unhorsing of the holders and exer-cisers of State power is looked upon with equanimity and not con-sidered a threat in any way to the State. It is the assault upon theabstract and verbal underpinnings of this institution which drawsblood, so to speak. If one can consider all the participants in thestruggle to control and use the State as those engaged in a game(the book by Morgenstern and Neumann on the theory of games,in which war politics are examined in this context, deserves morestudy),1 then those who seek to destroy the abstract-verbal justifica-tion for such "play" are endangering the future course of all theplayers by riddling the rule books, which describe how such playis to be conducted while giving it a raison <P6tre besides. Thosewho attack the rationale of the game, and not the players, are itsmost formidable adversaries.

It is in the light of this that those who have the temerity tocollide head-on with the Constitution and challenge its validityin toto stand out in such sharp outline and radiate a quality ofuniqueness in the American anti-State library. And at the head ofthis category stands Lysander Spooner (1808-1887), whose majorwork in this offensive, No Treason: The Constitution of No Authority,is reproduced below from the original edition, written in 1869 andpublished in Boston in 1870. It is the last of a series bearing theidentical main title which were to have been six in number, althoughthis one, numbered the sixth, was actually only the third. (NoTreason Nos. 3, 4, and 5 never appeared, for reasons never ex-plained. ) But in view of the scope of this work, it does not seemthat anything pertinent was left unsaid, making necessary anyfurther elaboration.

Spooner strips away the support from any and all who conjureup one or another persuasive explanation of the Constitution as acontract, or as an agent facilitating a contract theory of government.A practicing jurist all his adult life, Spooner puts the Constitution

xJohn Von Neumann and Oskar Morgenstern, The Theory of Games and Eco-nomic Belwvior (2nd ed.; Princeton: Princeton University Press, 1947).

NO TREASON 5

to the test of contracts "on general principles of law and reason,"such as prevailed in public affairs and in the market place wherehe worked with people from day to day, and concludes that it doesnot meet any of the basic criteria for contracts at all, and was notvalid or binding on anyone. The sort of mystical osmosis, akin totelepathy, perhaps, by which Americans were supposed to havecontracted with one or another to function under t i e document atthe launching of the post-Revolutionary War American State, evap-orates in Spooner's path as he assembles his argument, line by line,in nineteen carefully reasoned sections.

Spooner does not find that the Constitution "says" anything,because it cannot talk. But he does see it as a device through whichjudges talk, explaining what it "said" to those who live under it.Since not even its creators signed it, the Constitution was not evenbinding on them, Spooner argued. (The appearance of printingsof the Constitution in modern times which bear signatures of thedrafters of the document does not affect Spooner's point, which re-mains unaltered; the intent of this latter-day device is not discern-ible,, but can be interpreted to be little more than an annotationand not an attempt to assert that there is a contractual connotationhere, as in the case of the signatures gracing the Declaration ofIndependence.) And as for later times, there was no evidence thatit had any binding quality upon their posterity, while all who actedunder it were anonymous agents of concealed persons, who wereengaged in inflicting the will of these persons upon others in an in-vasive manner. He went on with ingenious demolition of the argu-ments that voting or tax-paying were evidence of voluntary submis-sion to those who ruled in the name of the Constitution, and chal-lenged any office-holder or wielder of power who might claim ac-curately and precisely to identify those in whose name he function-ed, and with whose assent he acted to make their will prevail, todo so.

There is much internal evidence that Spooner believed the Con-stitution had been put to the supreme test by Secession and the en-suing Civil War, barely four years ended when he wrote No Treason,and that the document was a proven failure if it purported to be avoluntary compact entered into by all for the object of promotingvarious mutual benefits and comforts. The mere fact that so manylives lost and so much violence and blood had been necessary, forthose who wanted the Constitution, to make it prevail over those

6 Lysander Spooner

who did not want it, was sufficient evidence to him that there wasno difference between the American State experiment and that ofall those before it which streamed away into the past. The partywith the most men and guns had prevailed, and it angered and in-censed him to hear political thimbleriggers bray of having "savedthe country" and "preserved our glorious Union," while "maintain-ing the national honor."

Spooner was not trying to sympathize with the Southern cause,though he neglected to point out that the defeated Confederacy wasno less State-minded than the Northern "Union," that it had pre-ceded the period of hostilities with Constitution-making on its ownaccount, ending up with one which included several sections evenmore objectionable than the one he was attacking. His effort insteadwas devoted to revealing how far removed from a "governmentby consent" or a "voluntary union of free men" the actual situa-tion really was. Spooner disparaged the theory that the centerof the contest concerned the institution of slavery, and advancedan economic interpretation of the war in harmony with otherswhich have appeared since, propounded by critics of the Stateand others not so disposed, alike. Says Spooner in conclusion,speaking of the Constitution, "This much is certain—that it haseither authorized such a government as we have had, or has beenpowerless to prevent it. In either case, it is unfit to exist."

For sheer audacity and breath-taking boldness, No Treason re-mains unmatched. One cannot call to mind anything to compare withit. In order to justify the continuance of the Constitution as thefoundation-stone of the American State, one must seek other en-trenched positions from which to make the defense than from thatof any school of theoretical contractualism, after encounteringSpooner.

No Treason presumes a bit more than minimum acquaintancewith political and legal theory and practice, and the semantics ofStatism, on the part of its readers. But one is unlikely to encounteranother exercise in thinking which exceeds it in providing a morebrilliant insight into the mystical speculative presumptions of theapologists for constitutionally-based Statism whose ideological rootsare lodged in eighteenth century beliefs.

NO TREASON.

3Vo. V I .

Constitution of no |tutltotity

BY LYSANDER SPOONER.

B O S T O N :PUBLISHED BY THE AUTHOR.

1870.

No TreasonThe Constitution of No Authority

The Constitution has no inherent authority or obligation. It hasno authority or obligation at all, unless as a contract between manand man. And it does not so much as even purport to be a contractbetween persons now existing. It purports, at most, to be only acontract between persons living eighty years ago.1 And it can besupposed to have been a contract then only between persons whohad already come to years of discretion, so as to be competent tomake reasonable and obligatory contracts. Furthermore, we know,historically, that only a small portion even of the people then exist-ing were consulted on the subject, or asked, or permitted to expresseither their consent or dissent in any formal manner. Those persons,if any, who did give their consent formally, are all dead now. Mostof them have been dead forty, fifty, sixty, or seventy years. Andthe Constitution, so far as it was their contract, died with them.They had no natural power or right to make it obligatory upontheir children. It is not only plainly impossible, in the nature ofthings, that they could bind their posterity, but they did not evenattempt to bind them. That is to say, the instrument does notpurport to be an agreement between any body but "the people"then existing; nor does it, either expressly or impliedly, assert anyright, power, or disposition, on their part, to bind anybody butthemselves. Let us see. Its language is:

We, the people of the United States (that is, the people thenexisting in the United States), in order to form a more perfectunion, insure domestic tranquility, provide for the common defense,promote the general welfare, and secure the blessings of liberty toourselves and our posterity, do ordain and establish this Constitu-tion for the United States of America.

*[This essay was written in 1869.]

10 Lysander Spooner

It is plain, in the first place, that this language, as an agreement,purports to be only what it at most really was, viz., a contractbetween the people then existing; and, of necessity, binding, as acontract, only upon those then existing. In the second place, thelanguage neither expresses nor implies that they had any intentionor desire, nor that they imagined they had any right or power, tobind their "posterity" to live under it. It does not say that their"posterity*' will, shall, or must live under it. It only says, in effect,that their hopes and motives in adopting it were that it might proveuseful to their posterity, as well as to themselves, by promoting theirunion, safety, tranquility, liberty, etc.

Suppose an agreement were entered into, in this form:We, the people of Boston, agree to maintain a fort on Governor's

Island, to protect ourselves and our posterity against invasion.This agreement, as an agreement, would clearly bind nobody

but the people then existing. Secondly, it would assert no right,power, or disposition, on their part, to compertheir "posterity" tomaintain such a fort. It would only indicate that the supposed wel-fare of their posterity was one of the motives that induced theoriginal parties to enter into the agreement.

When a man says he is building a house for himself and hisposterity, he does not mean to be understood as saying that he hasany thought of binding them, nor is it to be inferred that he is sofoolish as to imagine that he has any right or power to bind them,to live in it. So far as they are concerned, he only means to beunderstood as saying that his hopes and motives, in building it, arethat they, or at least some of them, may find it for their happinessto live in it.

So when a man says he is planting a tree for himself and hisposterity, he does not mean to be understood as saying that he hasany thought of compelling them, nor is it to be inferred that heis such a simpleton as to imagine that he has any right or powerto compel them, to eat the fruit. So far as they are concerned, heonly means to say that his hopes and motives, in planting the tree,are that its fruit may be agreeable to them.

So it was with those who originally adopted the Constitution.Whatever may have been their personal intentions, the legal mean-ing of their language, so far as their "posterity" was concerned,simply was, that their hopes and motives, in entering into the agree-ment, were that it might prove useful and acceptable to their pos-

NO TREASON 11

terity; that it might promote their union, safety, tranquility, andwelfare; and that it might tend "to secure to them the blessings ofliberty." The language does not assert nor at all imply, any right,power, or disposition, on the part of the original parties to the agree-ment, to compel their "posterity" to live under it. If they had in-tended to bind their posterity to live under it, they should have saidthat their object was, not "to secure to them the blessings of liberty,"but to make slaves of them; for if their "posterity" are bound tolive under it, they are nothing less than the slaves of their foolish,tyrannical, and dead grandfathers.

It cannot be said that the Constitution formed "the people ofthe United States," for all time, into a corporation. It does not speakof "the people" as a corporation, but as individuals. A corporationdoes not describe itself as "we," nor as "people," nor as "ourselves."Nor does a corporation, in legal language, have any "posterity." Itsupposes itself to have, and speaks of itself as having, perpetualexistence, as a single individuality.

Moreover, no body of men, existing at any one time, have thepower to create a perpetual corporation. A corporation can becomepractically perpetual only by the voluntary accession of new mem-bers, as die old ones die off. But for this voluntary accession ofnew members, the corporation necessarily dies with the death ofthose who originally composed it.

Legally speaking, therefore, there is, in the Constitution, nothingthat professes or attempts to bind the "posterity" of those whoestablished it.

If, then, those who established the Constitution, had no powerto bind, and did not attempt to bind, their posterity, the questionarises, whether their posterity have bound themselves. If they havedone so, they can have done so in only one or both of these twoways, viz., by voting, and paying taxes.

n.Let us consider these two matters, voting and tax paying, separate-

ly. And first of voting.All the voting that has ever taken place under the Constitution,

has been of such a kind that it not only did not pledge the wholepeople to support the Constitution, but it did not even pledge anyone of them to do so, as the following considerations show.

1. In the very nature of things, the act of voting could bind no-

12 Lysander Spooner

body but the actual voters. But owing to the property qualificationsrequired, it is probable that, during the first twenty or thirty yearsunder the Constitution, not more than one-tenth, fifteenth, or per-haps twentieth of the whole population (black and white, men,women, and minors) were permitted to vote. Consequently, so faras voting was concerned, not more than one-tenth, fifteenth, ortwentieth of those then existing, could have incurred any obligationto support the Constitution.2

At the present time,3 it is probable that not more than one-sixthof the whole population are permitted to vote. Consequently, sofar as voting is concerned, the other five-sixths can have given nopledge that they will support the Constitution.

2. Of the one-sixth that are permitted to vote, probably not morethan two-thirds (about one-ninth of the whole population) haveusually voted. Many never vote at all. Many vote only once intwo, three, five, or ten years, in periods of great excitement.

No one, by voting, can be said to pledge himself for any longerperiod than that for which he votes. If, for example, I vote for anofficer who is to hold his office for only a year, I cannot be said tohave thereby pledged myself to support the government beyondthat term. Therefore, on the ground of actual voting, it probablycannot be said that more than one-ninth or one-eighth, of the wholepopulation are usually under any pledge to support the Constitu-tion.4

3. It cannot be said that, by voting, a man pledges himself tosupport the Constitution, unless the act of voting be a perfectlyvoluntary one on his part. Yet the act of voting cannot properly2[In the presidential election of 1824, the first in American history for which

there are reliable tabulations of popular votes, barely 350,000 votes werecast at a time when the population was approximately 11,000,000 (thefigure for the decennial census of 1820 was 9,638,453; that of 1830 was12,866,020).]

3[In the 1868 election, which occurred just before Spooner was writing, atotal of about 5,700,000 votes were cast for the candidates, Gen. Ulysses S.Grant and Horatio Seymour; the population figure for the 1870 censuswas nearly 40,000,000.]

4[Relative percentages of those voting out of the total population have steadilyincreased since this was written but, in the main, Spooner's conjecture wasborne out down until the adoption of the 19th Amendment, which endedsexual discrimination in national elections in 1920. The voters in the electionsbetween 1870 and 1920 varied from one fifth to one eighth of the wholepopulation. In recent years, since 1940, the figure has usually fluctuatedbetween one-third and two-fifths.]

NO TREASON 13

be called a voluntary one on the part of any very large number ofthose who do vote. It is rather a measure of necessity imposed uponthem by others, than one of their own choice. On this point I re-peat what was said in a former number,® viz.:

"In truth, in the ease of individuals, their actual voting is notto be taken as proof of consent, even for the time being. On thecontrary, it is to be considered that, without his consent havingeven been asked a man finds himself environed by a governmentthat he cannot resist; a government that forces him to pay money,render service, and forego the exercise of many of his natural rights,under peril of weighty punishments. He sees, too, that other menpractice this tyranny over him by the use of the ballot. He seesfurther, that, if he will but use the ballot himself, he has somechance of relieving himself from this tyranny of others, by sub-jecting them to his own. In short, he finds himself, without hisconsent, so situated that, if he use the ballot, he may become amaster; if he does not use it, he must become a slave. And he hasno other alternative than these two. In self-defence, he attemptsthe former. His case is analogous to that of a man who has beenforced into battle, where he must either kill others, or be killedhimself. Because, to save his own life in battle, a man attemptsto take the lives of his opponents, it is not to be inferred that thebattle is one of his own choosing. Neither in contests with the ballot—which is a mere substitute for a bullet—because, as his only chanceof self-preservation, a man uses a ballot, is it to be inferred thatthe contest is one into which he voluntarily entered; that he volun-tarily set up all his own natural rights, as a stake against thoseof others, to be lost or won by the mere power of numbers. Onthe contrary, it is to be considered that, in an exigency into whichhe had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only onethat was left to him.

"Doubtless the most miserable of men, under the most oppres-sive government in the world, if allowed the ballot, would use it,if they could see any chance of thereby meliorating their condition.But it would not, therefore, be a legitimate inference that the gov-ernment itself, that crushes them, was one which they had volun-tarily set up, or even consented to.

"Therefore, a man's voting under the Constitution of the UnitedStates, is not to be taken as evidence that he ever freely assented tothe Constitution, even for the time being. Consequently we have noproof that any very large portion, even of the actual voters of theUnited States, ever really and voluntarily consented to the Constitu-tion, even for the time being. Nor can we ever have such proof,until every man is left perfectly free to consent, or not, without

*See No Treason, No. 2, pages 5 and 6.

14 Lysander Spooner

thereby subjecting himself or his property to be disturbed or in-jured by others."As we can have no legal knowledge as to who votes from choice,

and who from the necessity thus forced upon him, we can haveno legal knowledge, as to any particular individual, that he votedfrom choice; or, consequently, that by voting, he consented, orpledged himself, to support the government. Legally speaking,therefore, the act of voting utterly fails to pledge any one to sup-port the government. It utterly fails to prove that the governmentrests upon the voluntary support of anybody. On general principlesof law and reason, it cannot be said that the government has anyvoluntary supporters at all, until it can be distinctly shown whoits voluntary supporters are.

4. As taxation is made compulsory on all, whether they vote ornot, a large proportion of those who vote, no doubt do so to pre-vent their own money being used against themselves; when, in fact,they would have gladly abstained from voting, if they could there-by have saved themselves from taxation alone, to say nothing ofbeing saved from all the other usurpations and tyrannies of thegovernment. To take a man's property without his consent, and thento infer his consent because he attempts, by voting, to prevent thatproperty from being used to his injury, is a very insufficient proofof his consent to support the Constitution. It is, in fact, no proofat all. And as we can have no legal knowledge as to who the par-ticular individuals are, if there are any, who are willing to be taxedfor the sake of voting, we can have no legal knowledge that anyparticular individual consents to be taxed for the sake of voting; or,consequently, consents to support the Constitution.

5. At nearly all elections, votes are given for various candidatesfor the same office. Those who vote for the unsuccessful candidatescannot properly be said to have voted to sustain the Constitution.They may, with more reason, be supposed to have voted, not tosupport the Constitution, but specially to prevent the tyranny whichthey anticipate the successful candidate intends to practice uponthem under color of the Constitution; and therefore may reasonablybe supposed to have voted against the Constitution itself. This sup-position is the more reasonable, inasmuch as such voting is the onlymode allowed to them of expressing their dissent to the Constitution.

6. Many votes are usually given for candidates who have noprospect of success. Those who give such votes may reasonably

NO TREASON 15

be supposed to have voted as they did, with a special intention, notto support, but to obstruct the execution of, the Constitution; and,therefore, against the Constitution itself.

7. As all the different votes are given secretly (by secret ballot),there is no legal means of knowing, from the votes themselves, whovotes for, and who against, the Constitution. Therefore, voting af-fords no legal evidence that any particular individual supports theConstitution. And where there can be no legal evidence that anyparticular individual supports the Constitution, it cannot legally besaid that anybody supports it. It is clearly impossible to have anylegal proof of the intentions of large numbers of men, where therecan be no legal proof of the intentions of any particular one ofthem.

8. There being no legal proof of any man's intentions, in voting,we can only conjecture them. As a conjecture, it is probable, thata very large proportion of those who vote, do so on this principle,viz., that if, by voting, they could but get the government intotheir own hands (or that of their friends), and use its powersagainst their opponents, they would then willingly support the Con-stitution; but if their opponents are to have the power, and use itagainst them, then they would not willingly support the Constitu-tion.

In short, men's voluntary support of the Constitution is doubtless,in most cases, wholly contingent upon the question whether, bymeans of the Constitution, they can make themselves masters, orare to be made slaves.

Such contingent consent as that is, in law and reason, no consentat all.

9. As everybody who supports the Constitution by voting (ifthere are any such) does so secretly (by secret ballot), and in away to avoid all personal responsibility for the act of his agentsor representatives, it cannot legally or reasonably be said that any-body at all supports the Constitution by voting. No man canreasonably or legally be said to do such a thing as to assent to, orsupport, the Constitution, unless he does it openly, and in a wayto make himself personally responsible for the acts of his agents,so long as they act within the limits of the power he delegates tothem.

10. As all voting is secret (by secret ballot), and as all secretgovernments are necessarily only secret bands of robbers, tyrants,

16 Lysander Spooner

and murderers, the general fact that our government is practicallycarried on by means of such voting, only proves that there is amongus a secret band of robbers, tyrants and murderers, whose purposeis to rob, enslave, and, so far as necessary to accomplish their pur-poses, murder, the.rest of the people. The simple fact of the exis-tence of such a band does nothing towards proving that "the peopleof the United States," or any one of them, voluntarily supports theConstitution.

For all the reasons that have now been given, voting furnishesno legal evidence as to who the particular individuals are (if thereare any), who voluntarily support the Constitution. It thereforefurnishes no legal evidence that anybody supports it voluntarily.

So far, therefore, as voting is concerned, the Constitution, legallyspeaking, has no supporters at all.

And, as matter of fact, there is not the slightest probability thatthe Constitution has a single bona fide supporter in the country.That is to say, there is not the slightest probability that there is asingle man in the country, who both understands what the Con-stitution really is, and sincerely supports it for what it really is.

The ostensible supporters of the Constitution, like the ostensiblesupporters of most other governments, are made up of three classes,viz.: 1. Knaves, a numerous and active class, who see in the gov-ernment an instrument which they can use for their own aggrandize-ment or wealth. 2. Dupes — a large class, no doubt — each of whom,because he is allowed one voice out of millions in deciding what hemay do with his own person and his own property, and because heis permitted to have the same voice in robbing, enslaving, andmurdering others, that others have in robbing, enslaving, andmurdering himself, is stupid enough to imagine that he is a "freeman," a "sovereign"; that this is "a free government"; "a govern-ment of equal rights," "the best government on earth,"b and suchlike absurdities. 3. A class who have some appreciation of the evilsof government, but either do not see how to get rid of them, or donot choose to so far sacrifice their private interests as to give them-selves seriously and earnestly to the work of making a change.

III.The payment of taxes, being compulsory, of course furnishes no

bSuppose it be "the best government on earth," does that prove its own good-ness, or only the badness of all other governments?

NO TREASON 17

evidence that any one voluntarily supports the Constitution.1. It is true that the theory of our Constitution is, that all taxes are

paid voluntarily; that our government is a mutual insurance com-pany, voluntarily entered into by the people with each other; thateach man makes a free and purely voluntary contract with all otherswho are parties to the Constitution, to pay so much money for somuch protection, the same as he does with any other insurancecompany; and that he is just as free not to be protected, and notto pay tax, as he is to pay a tax, and be protected.

But this theory of our government is wholly different from thepractical fact. The fact is that the government, like a highwayman,says to a man: "Your money, or your life." And many, if not most,taxes are paid under the compulsion of that threat

The government does not, indeed, waylay a man in a lonelyplace, spring upon him from the roadside, and, holding a pistol tohis head, proceed to rifle his pockets. But the robbery is none theless a robbery on that account; and it is far more dastardly andshameful.

The highwayman takes solely upon himself the responsibility,danger, and crime of his own act. He does not pretend that hehas any rightful claim to your money, or that he intends to use itfor your own benefit. He does not pretend to be anything but arobber. He has not acquired impudence enough to profess to bemerely a "protector," and that he takes men's money against theirwill, merely to enable him to "protect** those infatuated travellers,who feel perfectly able to protect themselves, or do not appreciatehis peculiar system of protection. He is too sensible a man to makesuch professions as these. Furthermore, having taken your money,he leaves you, as you wish him to do. He does not persist in follow-ing you on the road, against your will; assuming to be your right-ful "sovereign," on account of the "protection" he affords you. Hedoes not keep "protecting" you, by commanding you to bow downand serve him; by requiring you to do this, and forbidding you todo that; by robbing you of more money as often as he finds it forhis interest or pleasure to do so; and by branding you as a rebel,a traitor, and an enemy to your country, and shooting you downwithout mercy, if you dispute his authority, or resist his demands.He is too much of a gentleman to be guilty of such impostures,and insults, and villainies as these. In short, he does not, in additionto robbing you, attempt to make you either his dupe or his slave.

18 Lysander Spooner

The proceedings of those robbers and murderers, who call them-selves "the government," are directly the opposite of these of thesingle highwayman.

In the first place, they do not, like him, make themselves individ-ually known; or, consequently, take upon themselves personallythe responsibility of their acts. On the contrary, they secretly (bysecret ballot) designate some one of their number to commit therobbery in their behalf, while they keep themselves practically con-cealed. They say to the person thus designated:

Go to A B , and say to him that "the govern-ment" has need of money to meet the expenses of protecting himand his property. If he presumes to say that he has never con-tracted with us to protect him, and that he wants none of our pro-tection, say to him that that is our business, and not his; that wechoose to protect him, whether he desires us to do so or not; andthat we demand pay, too, for protecting him. If he dares to inquirewho the individuals are, who have thus taken upon themselves thetitle of "the government," and who assume to protect him, anddemand payment of him, without his having ever made any con-tract with them, say to him that that, too, is our business, and nothis; that we do not choose to make ourselves individually known tohim; that we have secretly (by secret ballot) appointed you ouragent to give him notice of our demands, and, if he complies withthem, to give him, in our name, a receipt that will protect himagainst any similar demand for the present year. If he refuses tocomply, seize and sell enough of his property to pay not only ourdemands, but all your own expenses and trouble beside. If he re-sists the seizure of his property, call upon the bystanders to helpyou (doubtless some of them will prove to be members of ourband). If, in defending his property, he should kill any of ourband who are assisting you, capture him at all hazards; charge him(in one of our courts) with murder; convict him, and hang him.If he should call upon his neighbors, or any others who, like him,may be disposed to resist our demands, and they should come inlarge numbers to his assistance, cry out that they are all rebels andtraitors; that "our country" is in danger; call upon the commanderof our hired murderers; tell him to quell the rebellion and "savethe country," cost what it may. Tell him to kill all who resist,though they should be hundreds of thousands; and thus striketerror into all others similarly disposed. See that the work of murder

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is thoroughly done; that we may have no further trouble of thiskind hereafter. When these traitors shall have thus been taught ourstrength and our determination, they will be good loyal citizensfor many years, and pay their taxes without a why or a wherefore.

It is under such compulsion as this that taxes, so called, are paid.And how much proof the payment of taxes affords, that the peopleconsent to support "the government/' it needs no further argumentto show.

2. Still another reason why the payment of taxes implies noconsent, or pledge, to support the government, is that the taxpayerdoes not know, and has no means of knowing, who the particularindividuals are who compose "the government." To him "the gov-ernment" is a myth, an abstraction, an incorporeality, with whichhe can make no contract, and to which he can give no consent, andmake no pledge. He knows it only through its pretended agents."The government" itself he never sees. He knows indeed, by com-mon report, that certain persons, of a certain age, are permitted tovote; and thus to make themselves parts of, or (if they choose)opponents of, the government, for the time being. But who of themdo thus vote, and especially how each one votes (whether so as toaid or oppose the government), he does not know; the voting beingall done secretly (by secret ballot). Who, therefore, practicallycompose "the government," for the time being, he has no means ofknowing. Of course he can make no contract with them, givethem no consent, and make them no pledge. Of necessity, there-fore, his paying taxes to them implies, on his part, no contract, con-sent, or pledge to support them—that is, to support "the govern-ment," or the Constitution.

3. Not knowing who the particular individuals are, who callthemselves "the government," the taxpayer does not know whomhe pays his taxes to. All he knows is that a man comes to him,representing himself to be the agent of "the government"—that is,the agent of a secret band of robbers and murderers, who havetaken to themselves the title of "the government," and have deter-mined to kill everybody who refuses to give them whatever moneythey demand. To save his life, he gives up his money to this agent.But as this agent does not make his principals individually knownto the taxpayer, the latter, after he has given up his money, knowsno more who are "the government"—that is, who were the robbers—than he did before. To say, therefore, that by giving up his moneyto their agent, he entered into a voluntary contract with them, that

20 Lysander Spooner

he pledges himself to obey them, to support them, and to givethem whatever money they should demand of him in the future,is simply ridiculous.

4. All political power, as it is called, rests practically upon thismatter of money. Any number of scoundrels, having money enoughto start with, can establish themselves as a "government"; because,with money, they can hire soldiers, and with soldiers extort moremoney; and also compel general obedience to their will. It is withgovernment, as Caesar said it was in war, that money and soldiersmutually supported each other; that with money he could hiresoldiers, and with soldiers extort money. So these villains, whocall themselves governments, well understand that their powerrests primarily upon money. With money they can hire soldiers,and with soldiers extort money. And, when their authority isdenied, the first use they always make of money, is to hire soldiersto kill or subdue all who refuse them more money.

For this reason, whoever desires liberty, should understand thesevital facts, viz.: 1. That every man who puts money into the handsof a "government" (so called), puts into its hands a sword whichwill be used against himself, to extort more money from him, andalso to keep him in subjection to its arbitrary will. 2. That thosewho will take his money, without his consent, in the first place,will use it for his further robbery and enslavement, if he presumesto resist their demands in the future. 3. That it is a perfect ab-surdity to suppose that any body of men would ever take a man'smoney without his consent, for any such object as they profess totake it for, viz., that of protecting him; for why should they wishto protect him, if he does not wish them to do so? To suppose thatthey would do so, is just as absurd as it would be to suppose thatthey would take his money without his consent, for the purposeof buying food or clothing for him, when he did not want it. 4. Ifa man wants "protection," he is competent to make his own bargainsfor it; and nobody has any occasion to rob him, in order to "pro-tect" him against his will. 5. That the only security men can havefor their political liberty, consists in their keeping their money intheir own pockets, until they have assurances, perfectly satisfactoryto themselves, that it will be used as they wish it to be used, fortheir benefit, and not for their injury. 6. That no government, socalled, can reasonably be trusted for a moment, or reasonably besupposed to have honest purposes in view, any longer than it de-pends wholly upon voluntary support.

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These facts are all so vital and so self-evident, that it cannotreasonably be supposed that any one will voluntarily pay moneyto a "government/* for the purpose of securing its protection, un-less he first makes an explicit and purely voluntary contract withit for that purpose.

It is perfectly evident, therefore, that neither such voting, norsuch payment of taxes, as actually takes place, proves anybody'sconsent, or obligation, to support the Constitution. Consequentlywe have no evidence at all that the Constitution is binding uponanybody, or that anybody is under any contract or obligation what-ever to support it. And nobody is under any obligation to supportit.

IV.

The Constitution not only binds nobody now, but it never didbind anybody. It never bound anybody, because it was neveragreed to by anybody in such a manner as to make it, on generalprinciples of law and reason, binding upon him.

It is a general principle of law and reason, that a written instru-ment binds no one until he has signed it. This principle is so in-flexible a one, that even though a man is unable to write his name,he must still "make his mark/' before he is bound by a writtencontract. This custom was established ages ago, when few mencould write their names; when a clerk—that is, a man who couldwrite—was so rare and valuable a person, that even if he wereguilty of high crimes, he was entitled to pardon, on the groundthat the public could not afford to lose his services. Even at thattime, a written contract must be signed; and men who could notwrite, either "made their mark/' or signed their contracts by stamp-ing their seals upon wax affixed to the parchment on which theircontracts were written. Hence the custom of affixing seals, thathas continued to this time.

The law holds, and reason declares, that if a written instrumentis not signed, the presumption must be that the party to be boundby it, did not choose to sign it, or to bind himself by it. And lawand reason both give him until the last moment, in which to decidewhether he will sign it, or not. Neither law nor reason requiresor expects a man to agree to an instrument, until it is written; foruntil it is written, he cannot know its precise legal meaning. Andwhen it is written, and he has had the opportunity to satisfy him-self of its precise legal meaning, he is then expected to decide, and

22 Lysander Spooner

not before, whether he will agree to it or not. And if he do notthen sign it, his reason is supposed to be, that he does not chooseto enter into such a contract. The fact that the instrument waswritten for him to sign, or with the hope that he would sign it,goes for nothing.

Where would be the end of fraud and litigation, if one partycould bring into court a written instrument, without any signature,and claim to have it enforced, upon the ground that it was writtenfor another man to sign? that this other man had promised to signit? that he ought to have signed it? that he had had the opportunityto sign it, if he would? but that he had refused or neglected to doso? Yet that is the most that could ever be said of the Constitution.0

The very judges, who profess to derive all their authority from theConstitution—from an instrument that nobody ever signed—wouldspurn any other instrument, not signed, that should be broughtbefore them for adjudication.

Moreover, a written instrument must, in law and reason, notonly be signed, but must also be delivered to the party (or to someone for him), in whose favor it is made, before it can bind theparty making it. The signing is of no effect, unless the instrumentbe also delivered. And a party is at perfect liberty to refuse todeliver a written instrument, after he has signed it. He is as freeto refuse to deliver it, as he is to refuse to sign it. The Constitutionwas not only never signed by anybody, but it was never deliveredby anybody, or to anybody's agent or attorney. It can therefore beof no more validity as a contract, than can any other instrument,that was never signed or delivered.

V.As further evidence of the general sense of mankind, as to the

practical necessity there is that all men's important contracts,especially those of a permanent nature, should be both written andsigned, the following facts are pertinent.

For nearly two hundred years — that is, since 1677 — there hasbeen on the statute book of England, and the same, in substance,if not precisely in letter, has been re-enacted, and is now in force,in nearly or quite all the States of this Union, a statute, the general

lThe very men who drafted it, never signed it in any way to bind themselvesby it, as a contract. And not one of them probably ever would have signedit in any way to bind himself by it, as a contract.

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object of which is to declare that no action shall be brought toenforce contracts of the more important class, unless they are putin writing, and signed by the parties to be held chargeable uponthem*

The principle of the statute, be it observed, is, not merely thatwritten contracts shall be signed, but also that all contracts, exceptthose specially exempted — generally those that are for smallamounts, and are to remain in force but for a short time — shall beboth written and signed.

The reason of the statute, on this point, is, that it is now so easya thing for men to put their contracts in writing, and sign them,and their failure to do so opens the door to so much doubt, fraud,and litigation, that men who neglect to have their contracts — ofany considerable importance — written and signed, ought not tohave the benefit of courts of justice to enforce them. And this reasonis a wise one; and that experience has confirmed its wisdom andnecessity, is demonstrated by the fact that it has been acted uponin England for nearly two hundred years, and has been so nearly

dI have personally examined the statute books of the following States, viz.:Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecti-cut, New York, New Jersey, Pennsylvania, Delaware, Virginia, NorthCarolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Tennessee,Kentucky, Ohio, Michigan, Indiana, Illinois, Wisconsin, Texas, Arkansas,Missouri, Iowa, Minnesota, Nebraska, Kansas, Nevada, California, andOregon, and find that in all these States the English statute has been re-enacted, sometimes with modifications, but generally enlarging its operations,and is now in force.

The following are some of the provisions of the Massachusetts statute:"No action shall be brought in any of the following cases, that is to

say: . . ."To charge a person upon a special promise to answer for the debt,

default, or misdoings of another: . . ."Upon a contract for the sale of lands, tenements, hereditaments, or of

any interest in, or concerning them; or"Upon an agreement that is not to be performed within one year from

the writing thereof:"Unless the promise, contract, or agreement, upon which such action is

brought, or some memorandum or note thereof, is in writing, and signed bythe party to be charged therewith, or by some person thereunto by himlawfully authorized."

"No contract for the sale of goods, wares, or merchandise, for the priceof fifty dollars or more, shall be good or valid, unless the purchaser acceptsand receives part of the goods so sold, or gives something in earnest tobind the bargain, or in part payment; or unless some note or memorandumin writing of the bargain is made and signed by the party to be chargedthereby, or by some person thereunto by him lawfully authorized."

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universally adopted in this country, and that nobody thinks of re-pealing it.

We all know, too, how careful most men are to have their con-tracts written and signed, even when this statute does not requireit. For example, most men, if they have money due them, of nolarger amount than five or ten dollars, are careful to take a note forit. If they buy even a small bill of goods, paying for it at the timeof delivery, they take a receipted bill for it. If they pay a smallbalance of a book account, or any other small debt previously con-tracted, they take a written receipt for it.

Furthermore, the law everywhere (probably) in our country, aswell as in England, requires that a large class of contracts, such aswills, deeds, etc., shall not only be written and signed, but alsosealed, witnessed, and acknowledged. And in the case of marriedwomen conveying their rights in real estate, the law, in manyStates, requires that the women shall be examined separate andapart from their husbands, and declare that they sign their con-tracts free of any fear or compulsion of their husbands.

Such are some of the precautions which the laws require, andwhich individuals — from motives of common prudence, even incases not required by law — take, to put their contracts in writing,and have them signed, and, to guard against all uncertainties andcontroversies in regard to their meaning and validity. And yet wehave what purports, or professes, or is claimed, to be a contract—the Constitution — made eighty years ago, by men who are nowall dead, and who never had any power to bind us, but which (itis claimed) has nevertheless bound three generations of men, con-sisting of many millions, and which (it is claimed) will be bindingupon all the millions that are to come; but which nobody eversigned, sealed, delivered, witnessed, or acknowledged; and whichfew persons, compared with the whole number that are claimedto be bound by it, have ever read, or even seen, or ever will read,or see. And of those who ever have read it, or ever will read it,scarcely any two, perhaps no two, have ever agreed, or ever willagree, as to what it means.

Moreover, this supposed contract, which would not be receivedin any court of justice sitting under its authority, if offered to provea debt of five dollars, owing by one man to another, is one by which—as it is generally interpreted by those who pretend to administerit—all men, women and children throughout the country, and

NO TREASON 25

through all time, surrender not only all their property, but alsotheir liberties, and even lives, into the hands of men who by thissupposed contract, are expressly made wholly irresponsible fortheir disposal of them. And we are so insane, or so wicked, asto destroy property and lives without limit, in fighting to compelmen to fulfill a supposed contract, which, inasmuch as it has neverbeen signed by anybody, is, on general principles of law andreason — such principles as we are all governed by in regard toother contracts—the merest waste paper, binding upon nobody,fit only to be thrown into the fire; or, if preserved, preserved onlyto serve as a witness and a warning of the folly and wickednessof mankind.

VI.

It is no exaggeration, but a literal truth, to say that, by the Con-stitution—no* as I interpret it, but as it is interpreted by those whopretend to administer it—the properties, liberties, and lives of theentire people of the United States are surrendered unreservedlyinto the hands of men who, it is provided by the Constitution it-self, shall never be "questioned" as to any disposal they make ofthem.

Thus the Constitution (Art. I, Sec. 6) provides that, "for anyspeech or debate (or vote), in either house, they (the senatorsand representatives) shall not be questioned in any other place."

The whole law-making power is given to these senators andrepresentatives (when acting by a two-thirds vote)e; and thisprovision protects them from all responsibility for the laws theymake.

The Constitution also enables them to secure the execution of alltheir laws, by giving them power to withhold the salaries of, andto impeach and remove, all judicial and executive officers, whorefuse to execute them.

Thus the whole power of the government is in their hands, andthey are made utterly irresponsible for the use they make of it.What is this but absolute, irresponsible power?

It is no answer to this view of the case to say that these menare under oath to use their power only within certain limits; for

eAnd this two-thirds vote may be but two-thirds of a quorum—that is two-thirdsof a majority—instead of two-thirds of the whole.

26 Lysander Spooner

what care they, or what should they care, for oaths or limits, whenit is expressly provided, by the Constitution itself, that they shallnever be "questioned/* or held to any responsibility whatever, forviolating their oaths, or transgressing those limits?

Neither is it any answer to this view of the case to say that theparticular individuals holding this power can be changed once intwo or six years; for the power of each set of men is absolute duringthe term for which they hold it; and when they can hold it nolonger, they are succeeded only by men whose power will be equallyabsolute and irresponsible.

Neither is it any answer to this view of the case to say that themen holding this absolute, irresponsible power, must be menchosen by the people (or portions of them) to hold it. A man isnone the less a slave because he is allowed to choose a new masteronce in a term of years. Neither are a people any the less slavesbecause permitted periodically to choose new masters. What makesthem slaves is the fact that they now are, and are always here-after to be, in the hands of men whose power over them is, andalways is to be, absolute and irresponsible.'

The right of absolute and irresponsible dominion is the right ofproperty, and the right of property is the right of absolute, irrespon-sible dominion. The two are identical; the one necessarily imply-ing the other. Neither can exist without the other. If, therefore,Congress have that absolute and irresponsible law-making power,which the Constitution — according to their interpretation of it —gives them, it can only be because they own us as property. Ifthey own us as property, they are our masters, and their will isour law. If they do not own us as property, they are not our masters,and their will, as such, is of no authority over us.

But these men who claim and exercise this absolute and irrespon-sible dominion over us, dare not be consistent, and claim either tobe our masters, or to own us as property. They say they are onlyour servants, agents, attorneys, and representatives. But this declara-tion involves an absurdity, a contradiction. No man can be myservant, agent, attorney, or representative, and be, at the sametime, uncontrollable by me, and irresponsible to me for his acts.It is of no importance that I appointed him, and put all powerfOf what appreciable value is it to any man, as an individual, that he is

allowed a voice in choosing these public masters? His voice is only one ofseveral millions.

NO TREASON 27

in his hands. If I made him uncontrollable by me, and irresponsibleto me, he is no longer my servant, agent, attorney, or representa-tive. If I gave him absolute, irresponsible power over my property,I gave him the property. If I gave him absolute, irresponsiblepower over myself, I made him my master, and gave myself tohim as a slave. And it is of no importance whether I called himmaster or servant, agent or owner. The only question is, whatpower did I put into his hands? Was it an absolute and irrespon-sible one? or a limited and responsible one?

For still another reason they are neither our servants, agents,attorneys, nor representatives. And that reason is, that we do notmake ourselves responsible for their acts. If a man is my servant,agent, or attorney, I necessarily make myself responsible for allhis acts done within the limits of the power I have intrusted to him.If I have intrusted him, as my agent, with either absolute power, orany power at all, over the persons or properties of other men thanmyself, I thereby necessarily make myself responsible to thoseother persons for any injuries he may do them, so long as he actswithin the limits of the power I have granted him. But no indivi-dual who may be injured in his person or property, by acts ofCongress, can come to the individual electors, and hold them re-sponsible for these acts of their so-called agents or representatives.This fact proves that these pretended agents of the people, of every-body, are really the agents of nobody.

If, then, nobody is individually responsible for the acts of Con-gress, the members of Congress are nobody's agents. And if theyare nobody's agents, they are themselves individually responsiblefor their own acts, and for the acts of all whom they employ. Andthe authority they are exercising is simply their own individualauthority; and, by the law of nature—the highest of all laws—any-body injured by their acts, anybody who is deprived by them ofhis property or his liberty, has the same right to hold them in-dividually responsible, that he has to hold any other trespasserindividually responsible. He has the same right to resist them,and their agents, that he has to resist any other trespassers.

VII.It is plain, then, that on general principles of law and reason-

such principles as we all act upon in courts of justice and in com-mon life—the Constitution is no contract; that it binds nobody, and

28 Lysander Spooner

never did bind anybody; and that all those who pretend to act byits authority, are really acting without any legitimate authority atall; that, on general principles of law and reason, they are mereusurpers, and that everybody not only has the right, but is morallybound, to treat them as such.

If the people of this country wish to maintain such a govern-ment as the Constitution describes, there is no reason in the worldwhy they should not sign the instrument itself, and thus makeknown their wishes in an open, authentic manner; in such manneras the common sense and experience of mankind have shown tobe reasonable and necessary in such cases; and in such manner asto make themselves (as they ought to do) individually responsiblefor the acts of the government. But the people have never beenasked to sign it. And the only reason why they have never beenasked to sign it, has been that it has been known that they neverwould sign it; that they were neither such fools nor knaves as theymust needs have been to be willing to sign it; that (at least as ithas been practically interpreted) it is not what any sensible andhonest man wants for himself; nor such as he has any right to im-pose upon others. It is, to all moral intents and purposes, as desti-tute of obligation as the compacts which robbers and thieves andpirates enter into with each other, but never sign.

If any considerable number of the people believe the Constitu-tion to be good, why do they not sign it themselves, and make lawsfor, and administer them upon, each other; leaving all other persons(who do not interfere with them) in peace? Until they have triedthe experiment for themselves, how can they have the face toimpose the Constitution upon, or even to recommend it to, others?Plainly the reason for such absurd and inconsistent conduct is thatthey want the Constitution, not solely for any honest or legitimateuse it can be of to themselves or others, but for the dishonest andillegitimate power it gives them over the persons and properties ofothers. But for this latter reason, all their eulogiums on the Con-stitution, all their exhortations, and all their expenditures of moneyand blood to sustain it, would be wanting.

VIII.The Constitution itself, then, being of no authority, on what

authority does our government practically rest? On what groundcan those who pretend to administer it, claim the right to seizemen's property, to restrain them of their natural liberty of action,

NO TREASON 29

industry, and trade, and to kill all who deny their authority to dis-pose of men's properties, liberties, and lives at their pleasure ordiscretion?

The most they can say, in answer to this question, is, that somehalf, two-thirds, or three-fourths, of the male adults of the countryhave a tacit understanding that they will maintain a governmentunder the Constitution; that they will select, by ballot, the personsto administer it; and that those persons who may receive a majority,or a plurality, of their ballots, shall act as their representatives, andadminister the Constitution in their name, and by their authority.

But this tacit understanding (admitting it to exist) cannot at alljustify the conclusion drawn from it. A tacit understanding betweenA, B, and C, that they will, by ballot, depute D as their agent, todeprive me of my property, liberty, or life, cannot at all authorizeD to do so. He is none the less a robber, tyrant, and murderer, be-cause he claims to act as their agent, than he would be if he avowed-ly acted on his own responsibility alone.

Neither am I bound to recognize him as their agent, nor can helegitimately claim to be their agent, when he brings no writtenauthority from them accrediting him as such. I am under no obliga-tion to take his word as to who his principals may be, or whetherhe has any. Bringing no credentials, I have a right to say he hasno such authority even as he claims to have: and that he is there-fore intending to rob, enslave, or murder me on his own account.

This tacit understanding, therefore, among the voters of thecountry, amounts to nothing as an authority to their agents. Neitherdo the ballots by which they select their agents, avail any morethan does their tacit understanding; for their ballots are given insecret, and therefore in a way to avoid any personal responsibilityfor the acts of their agents.

No body of men can be said to authorize a man to act as theiragent, to the injury of a third person, unless they do it in so openand authentic a manner as to make themselves personally respon-sible for his acts. None of the voters in this country appoint theirpolitical agents in any open, authentic manner, or in any mannerto make themselves responsible for their acts. Therefore these pre-tended agents cannot legitimately claim to be really agents. Some-body must be responsible for the acts of these pretended agents;and if they cannot show any open and authentic credentials fromtheir principals, they cannot, in law or reason, be said to have any

30 Lysander Spooner

principals. The maxim applies here, that what does not appear,does not exist. If they can show no principals, they have none.

But even these pretended agents do not themselves know whotheir pretended principals are. These latter act in secret; for actingby secret ballot is acting in secret as much as if they were to meetin secret conclave in the darkness of the night. And they are per-sonally as much unknown to the agents they select, as they are toothers. No pretended agent therefore can ever know by whoseballots he is selected, or consequently who his real principals are.Not knowing who his principals are, he has no right to say that hehas any. He can, at most, say only that he is the agent of a secretband of robbers and murderers, who are bound by that faith whichprevails among confederates in crime, to stand by him, if his acts,done in their name, shall be resisted.

Men honestly engaged in attempting to establish justice in theworld, have no occasion thus to act in secret; or to appoint agentsto do acts for which they (the principals) are not willing to beresponsible.

The secret ballot makes a secret government; and a secret gov-ernment is a secret band of robbers and murderers. Open despotismis better than this. The single despot stands out in the face of allmen, and says: I am the State: My will is law: I am your master:I take the responsibility of my acts: The only arbiter I acknowledgeis the sword: If any one denies my right, let him try conclusionswith me.

But a secret government is little less than a government of assas-sins. Under it, a man knows not who his tyrants are, until theyhave struck, and perhaps not then. He may guess, beforehand,as to some of his immediate neighbors. But he really knows nothing.The man to whom he would most naturally fly for protection, mayprove an enemy, when the time of trial comes.

This is the kind of government we have; and it is the only onewe are likely to have, until men are ready to say: We will consentto no Constitution, except such an one as we are neither ashamednor afraid to sign; and we will authorize no government to do any-thing in our name which we are not willing to be personally re-sponsible for.

IX.What is the motive to the secret ballot? This, and only this:

Like other confederates in crime, those who use it are not friends,

NO TREASON 31

but enemies; and they are afraid to be known, and to have theirindividual doings known, even to each other. They can contrive tobring about a sufficient understanding to enable them to act inconcert against other persons; but beyond this they have no confi-dence, and no friendship, among themselves. In fact, they are en-gaged quite as much in schemes for plundering each other, as inplundering those who are not of them. And it is perfectly wellunderstood among them that the strongest party among them will,in certain contingencies, murder each other by the hundreds ofthousands (as they lately did do) to accomplish their purposesagainst each other. Hence they dare not be known, and have theirindividual doings known, even to each other. And this is avowedlythe only reason for the ballot: for a secret government; a govern-ment by secret bands of robbers and murderers. And we are in-sane enough to call this libertyl To be a member of this secretband of robbers and murderers is esteemed a privilege and anhonorl Without this privilege, a man is considered a slave; butwith it a free man! With it he is considered a free man, becausehe has the same power to secretly (by secret ballot) procure therobbery, enslavement, and murder of another man, and that otherman has to procure his robbery, enslavement, and murder. Andthis they call equal rights!

If any number of men, many or few, claim the right to governthe people of this country, let them make and sign an open compactwith each other to do so. Let them thus make themselves individ-ually known to those whom they propose to govern. And let themthus openly take the legitimate responsibility of their acts. Howmany of those who now support the Constitution, will ever dothis? How many will ever dare openly proclaim their right togovern? or take the legitimate responsibility of their acts? Notone!

X.It is obvious that, on general principles of law and reason, there

exists no such thing as a government created by, or resting upon,any consent, compact, or agreement of "the people of the UnitedStates" with each other; that the only visible, tangible, responsiblegovernment that exists, is that of a few individuals only, who actin concert, and call themselves by the several names of senators,representatives, presidents, judges, marshals, treasurers, collectors,generals, colonels, captains, etc., etc.

32 Lysander Spooner

On general principles of law and reason, it is of no importancewhatever that those few individuals profess to be the agents andrepresentatives of "the people of the United States"; since they canshow no credentials from the people themselves; they were neverappointed as agents or representatives in any open, authentic man-ner; they do not themselves know, and have no means of knowing,and cannot prove, who their principals (as they call them) are in-dividually; and consequently cannot, in law or reason, be said tohave any principals at all.

It is obvious, too, that if these alleged principals ever did appointthese pretended agents, or representatives, they appointed themsecretly (by secret ballot), and in a way to avoid all personalresponsibility for their acts; that, at most, these alleged principalsput these pretended agents forward for the most criminal purposes,viz.: to plunder the people of their property, and restrain them oftheir liberty; and that the only authority that these alleged princi-pals have for so doing, is simply a tacit understanding among them-selves that they will imprison, shoot, or hang every man who re-sists the exactions and restraints which their agents or representa-tives may impose upon them.

Thus it is obvious that the only visible, tangible government wehave is made up of these professed agents or representatives of asecret band of robbers and murderers, who, to cover up, or glossover, their robberies and murders, have taken to themselves thetitle of "the people of the United States"; and who, on the pretenseof being "the people of the United States," assert their right tosubject to their dominion, and to control and dispose of at theirpleasure, all property and persons found in the United States.

XI.

On general principles of law and reason, the oaths which thesepretended agents of the people take "to support the Constitution,"are of no validity or obligation. And why? For this, if for no otherreason, viz., that they are given to nobody. There is no privity (asthe lawyers say) — that is, no mutual recognition, consent, andagreement — between those who take these oaths, and any otherpersons.

If I go upon Boston Common, and in the presence of a hundredthousand people, men, women and children, with whom I haveno contract on the subject, take an oath that I will enforce upon

NO TREASON 33

them the laws of Moses, of Lycurgus, of Solon, of Justinian, or ofAlfred, that oath is, on general principles of law and reason, ofno obligation. It is of no obligation, not merely because it is in-trinsically a criminal one, but also because it is given to nobody,and consequently pledges my faith to nobody. It is merely givento the winds.

It would not alter the case at all to say that, among these hundredthousand persons, in whose presence the oath was taken, therewere two, three, or five thousand male adults, who had secretly—by secret ballot, and in a way to avoid making themselves individu-ally known to me, or to the remainder of the hundred thousand-designated me as their agent to rule, control, plunder, and, if needbe, murder, these hundred thousand people. The fact that they haddesignated me secretly, and in a manner to prevent my knowingthem individually, prevents all privity between them and me; andconsequently makes it impossible that there can be any contract,or pledge of faith, on my part towards them; for it is impossiblethat I can pledge my faith, in any legal sense, to a man whom Ineither know, nor have any means of knowing, individually.

So far as I am concerned, then, these two, three, or five thousandpersons are a secret band of robbers and murderers, who havesecretly, and in a way to save themselves from all responsibility formy acts, designated me as their agent; and have, through someother agent, or pretended agent, made their wishes known to me.But being, nevertheless, individually unknown to me, and havingno open, authentic contract with me, my oath is, on general prin-ciples of law and reason, of no validity as a pledge of faith to them.And being no pledge of faith to them, it is no pledge of faith toanybody. It is mere idle wind. At most, it is only a pledge offaith to an unknown band of robbers and murderers, whose instru-ment for plundering and murdering other people, I thus publiclyconfess myself to be. And it has no other obligation than a similaroath given to any other unknown body of pirates, robbers, andmurderers.

For these reasons the oaths taken by members of Congress, "tosupport the Constitution/' are, on general principles of law andreason, of no validity. They are not only criminal in themselves,and therefore void; but they are also void for the further reasonthat they are given to nobody.

It cannot be said that, in any legitimate or legal sense, they are

34 Lysander Spooner

given to "the people of the United States"; because neither thewhole, nor any large proportion of the whole, people of the UnitedStates ever, either openly or secretly, appointed or designated thesemen as their agents to carry the Constitution into effect. The greatbody of the people—that is, men, women and children—were neverasked, or even permitted, to signify, in any formal manner, eitheropenly or secretly, their choice or wish on the subject. The mostthat these members of Congress can say, in favor of their appoint-ment, is simply this: Each one can say for himself:

I have evidence satisfactory to myself, that there exists, scatteredthroughout the country, a band of men, having a tacit understand-ing with each other, and calling themselves "the people of theUnited States/' whose general purposes are to control and plundereach other, and all other persons in the country, and, so far as theycan, even in neighboring countries; and to kill every man who shallattempt to defend his person and property against their schemesof plunder and dominion. Who these men are, individually, I haveno certain means of knowing, for they sign no papers, and giveno open, authentic evidence of their individual membership. Theyare not known individually even to each other. They are apparent-ly as much afraid of being individually known to each other, asof being known to other persons. Hence they ordinarily have nomode either of exercising, or of making known, their individualmembership, otherwise than by giving their votes secretly forcertain agents to do their will. But although these men are in-dividually unknown, both to each other and to other persons, it isgenerally understood in the country that none but male persons,of the age of twenty-one years and upwards, can be members. Itis also generally understood that all male persons, born in thecountry, having certain complexions, and (in some localities) cer-tain amounts of property, and (in certain cases) even persons offoreign birth, are permitted to be members. But it appears thatusually not more than one half, two-thirds, or, in some cases, three-fourths, of all who are thus permitted to become members of theband, ever exercise, or consequently prove, their actual member-ship, in the only mode in which they ordinarily can exercise orprove it, viz., by giving their votes secretly for the officers or agentsof the band. The number of these secret votes, so far as we haveany account of them, varies greatly from year to year, thus tendingto prove that the band, instead of being a permanent organization,

NO TREASON 35

is a merely pro tempore affair with those who choose to act withit for the time being. The gross number of these secret votes, orwhat purports to be their gross number, in different localities, isoccasionally published. Whether these reports are accurate or not,we have no means of knowing. It is generally supposed that greatfrauds are often committed in depositing them. They are under-stood to be received and counted by certain men, who are them-selves appointed for that purpose by the same secret process bywhich all other officers and agents of the band are selected. Ac-cording to the reports of these receivers of votes (for whose ac-curacy or honesty, however, I cannot vouch), and according to mybest knowledge of the whole number of male persons "in my dis-trict," who (it is supposed) were permitted to vote, it would ap-pear that one-half, two-thirds or three-fourths actually did vote.Who the men were, individually, who cast these votes, I have noknowledge, for the whole thing was done secretly. But of thesecret votes thus given for what they call a "member of Congress,"the receivers reported that I had a majority, or at least a largernumber than any other one person. And it is only by virtue of sucha designation that I am now here to act in concert with other per-sons similarly selected in other parts of the country. It is under-stood among those who sent me here, that all the persons so selected,will, on coming together at the City of Washington, take an oathin each others presence "to support the Constitution of the UnitedStates/' By this is meant a certain paper that was drawn up eightyyears ago. It was never signed by anybody, and apparently hasno obligation, and never had any obligation, as a contract. Infact, few persons ever read it, and doubtless much the largestnumber of those who voted for me and the others, never evensaw it, or now pretend to know what it means. Nevertheless, it isoften spoken of in the country as "the Constitution of the UnitedStates"; and for some reason or another, the men who sent me here,seem to expect that I, and all with whom I act, will swear to carrythis Constitution into effect. I am therefore ready to take this oath,and to co-operate with all others, similarly selected, who are readyto take the same oath.

This is the most that any member of Congress can say in proofthat he has any constituency; that he represents anybody; that hisoath "to support the Constitution," is given to anybody, or pledgeshis faith to anybody. He has no open, written, or other authentic

36 Lysander Spooner

evidence, such as is required in all other cases, that he was everappointed the agent or representative of anybody. He has no writ-ten power of attorney from any single individual. He has no suchlegal knowledge as is required in all other cases, by which he canidentify a single one of those who pretend to have appointed himto represent them.

Of course his oath, professedly given to them, "to support theConstitution/' is, on general principles of law and reason, an oathgiven to nobody. It pledges his faith to nobody. If he fails to ful-fil his oath, not a single person can come forward, and say to him,you have betrayed me, or broken faith with me.

No one can come forward and say to him: I appointed you myattorney to act for me. I required you to swear that, as my attorney,you would support the Constitution. You promised me that youwould do so; and now you have forfeited the oath you gave to me.No single individual can say this.

No open, avowed, or responsible association, or body of men,can come forward and say to him: We appointed you our attorney,to act for us. We required you to swear that, as our attorney, youwould support the Constitution. You promised us that you woulddo so; and now you have forfeited the oath you gave to us.

No open, avowed, or responsible association, or body of men,can say this to him; because there is no such association or bodyof men in existence. If any one should assert that there is such anassociation, let him prove, if he can, who compose it. Let himproduce, if he can, any open, written, or other authentic contract,signed or agreed to by these men; forming themselves into an as-sociation; making themselves known as such to the world; appoint-ing him as their agent; and making themselves individually, or asan association, responsible for his acts, done by their authority.Until all this can be shown, no one can say that, in any legitimatesense, there is any such association; or that he is their agent; or thathe ever gave his oath to them; or ever pledged his faith to them.

On general principles of law and reason, it would be a sufficientanswer for him to say, to all individuals, and all pretended as-sociations of individuals, who should accuse him of a breach of faithto them:

I never knew you. Where is your evidence that you, either in-dividually or collectively, ever appointed me your attorney? thatyou ever required me to swear to you, that, as your attorney, I

NO TREASON 37

would support the Constitution? or that I have now broken anyfaith I ever pledged to you? You may, or you may not, be mem-bers of that secret band of robbers and murderers, who act insecret; appoint their agents by a secret ballot; who keep them-selves individually unknown even to the agents they thus appoint;and who, therefore, cannot claim that they have any agents; orthat any of their pretended agents ever gave his oath, or pledgedhis faith, to them. I repudiate you altogether. My oath was givento others, with whom you have nothing to do; or it was idle wind,given only to the idle winds. Begone!

XII.

For the same reasons, the oaths of all the other pretended agentsof this secret band of robbers and murderers are, on general prin-ciples of law and reason, equally destitute of obligation. Theyare given to nobody; but only to the winds.

The oaths of the tax-gatherers and treasurers of the band, are,on general principles of law and reason, of no validity. If any taxgatherer, for example, should put the money he receives into hisown pocket, and refuse to part with it, the members of this bandcould not say to him: You collected that money as our agent, andfor our uses; and you swore to pay it over to us, or to those weshould appoint to receive it. You have betrayed us, and brokenfaith with us.

It would be a sufficient answer for him to say to them:I never knew you. You never made yourselves individually

known to me. I never gave my oath to you, as individuals. Youmay, or you may not, be members of that secret band, who appointagents to rob and murder other people; but who are cautious notto make themselves individually known, either to such agents, orto those whom their agents are commissioned to rob. If you aremembers of that band, you have given me no proof that you evercommissioned me to rob others for your benefit. I never knew you,as individuals, and of course never promised you that I would payover to you the proceeds of my robberies. I committed my robberieson my own account, and for my own profit. If you thought I wasfool enough to allow you to keep yourselves concealed, and useme as your tool for robbing other persons; or that I would takeall the personal risk of the robberies, and pay over the proceedsto you, you were particularly simple. As I took all the risk of my

38 Lysander Spooner

robberies, I propose to take all the profits. Begone! You are fools,as well as villains. If I gave my oath to anybody, I gave it to otherpersons than you. But I really gave it to nobody. I only gave it tothe winds. It answered my purposes at the time. It enabled me toget the money I was after, and now I propose to keep it. If youexpected me to pay it over to you, you relied only upon that honorthat is said to prevail among thieves. You now understand that thatis a very poor reliance. I trust you may become wise enough tonever rely upon it again. If I have any duty in the matter, it isto give back the money to those from whom I took it; not to payit over to such villains as you.

XIII.On general principles of law and reason, the oaths which for-

eigners take, on coming here, and being "naturalized" (as it iscalled), are of no validity. They are necessarily given to nobody;because there is no open, authentic association, to which they canjoin themselves; or to whom, as individuals, they can pledge theirfaith. No such association, or organization, as "the people of theUnited States," having ever been formed by any open, written,authentic, or voluntary contract, there is, on general principles oflaw and reason, no such association, or organization, in existence.And all oaths that purport to be given to such an association arenecessarily given only to the winds. They cannot be said to begiven to any man, or body of men, as individuals, because no man,or body of men, can come forward with any proof that the oathswere given to them, as individuals, or to any association of whichthey are members. To say that there is a tacit understanding amonga portion of the male adults of the country, that they will call them-selves "the people of the United States," and that they will act inconcert in subjecting the remainder of the people of the UnitedStates to their dominion; but that they will keep themselves per-sonally concealed by doing all their acts secretly, is wholly in-sufficient, on general principles of law and reason, to prove theexistence of any such association, or organization, as "the peopleof the United States"; or consequently to prove that the oaths offoreigners were given to any such association.

XIV.On general principles of law and reason, all the oaths which,

since the war, have been given by Southern men, that they will

NO TREASON 39

obey the laws of Congress, support the Union, and the like, are ofno validity. Such oaths are invalid, not only because they were ex-torted by military power, and threats of confiscation, and becausethey are in contravention of men's natural right to do as they pleaseabout supporting the government, but also because they were givento nobody. They were nominally given to "the United States." Butbeing nominally given to "the United States," they were neces-sarily given to nobody, because, on general principles of law andreason, there were no "United States," to whom the oaths could begiven. That is to say, there was no open, authentic, avowed, legiti-mate association, corporation, or body of men, known as "the UnitedStates," or as "the people of the United States," to whom the oathscould have been given. If anybody says there was such a corpora-tion, let him state who were the individuals that composed it, andhow and when they became a corporation. Were Mr. A, Mr. B,and Mr. C members of it? If so, where are their signatures? Wherethe evidence of their membership? Where the record? Where theopen, authentic proof? There is none. Therefore, in law and reason,there was no such corporation.

On general principles of law and reason, every corporation, as-sociation, or organized body of men, having a legitimate corporateexistence, and legitimate corporate rights, must consist of certainknown individuals, who can prove, by legitimate and reasonableevidence, their membership. But nothing of this kind can be provedin regard to the corporation, or body of men, who call themselves"the United States." Not a man of them, in all the Northern States,can prove by any legitimate evidence, such as is required to provemembership in other legal corporations, that he himself, or anyother man whom he can name, is a member of any corporation orassociation called "the United States," or "the people of the UnitedStates," or, consequently, that there is any such corporation. Andsince no such corporation can be proved to exist, it cannot of coursebe proved that the oaths of Southern men were given to any suchcorporation. The most that can be claimed is that the oaths weregiven to a secret band of robbers and murderers, who called them-selves "the United States," and extorted those oaths. But that cer-tainly is not enough to prove that the oaths are of any obligation.

XV.On general principles of law and reason, the oaths of soldiers,

40 Lysander Spooner

that they will serve a given number of years, that they will obeythe orders of their superior officers, that they will bear true allegi-ance to the government, and so forth, are of no obligation. In-dependently of the criminality of an oath, that, for a given numberof years, he will kill all whom he may be commanded to kill, with-out exercising his own judgment or conscience as to the justice ornecessity of such killing, there is this further reason why a soldier'soath is of no obligation, viz., that, like all the other oaths that havenow been mentioned, it is given to nobody. There being, in nolegitimate sense, any such corporation, or nation, as "the UnitedStates/' nor, consequently, in any legitimate sense, any such gov-ernment as "the government of the United States," a soldier's oathgiven to, or contract made with, such nation or government, isnecessarily an oath given to, or a contract made with, nobody.Consequently such oath or contract can be of no obligation.

XVI.

On general principles of law and reason, the treaties, so called,which purport to be entered into with other nations, by personscalling themselves ambassadors, secretaries, presidents, and sen-ators of the United States, in the name, and in behalf, of "thepeople of the United States," are of no validity. These so-calledambassadors, secretaries, presidents, and senators, who claim to bethe agents of "the people of the United States," for making thesetreaties, can show no open, written, or other authentic evidence thateither the whole "people of the United States," or any other open,avowed, responsible body of men, calling themselves by that name,ever authorized these pretended ambassadors and others to maketreaties in the name of, or binding upon any one of, "the peopleof the United States," or any other open, avowed, responsible bodyof men, calling themselves by that name, ever authorized thesepretended ambassadors, secretaries, and others, in their name andbehalf, to recognize certain other persons, calling themselves em-perors, kings, queens, and the like, as the rightful rulers, sovereigns,masters, or representatives of the different peoples whom they as-sume to govern, to represent, and to bind.

The "nations," as they are called, with whom our pretendedambassadors, secretaries, presidents, and senators profess to maketreaties, are as much myths as our own. On general principles oflaw and reason, there are no such "nations." That is to say, neither

NO TREASON 41

the whole people of England, for example, nor any open, avowed,responsible body of men, calling themselves by that name, ever,by any open, written, or other authentic contract with each other,formed themselves into any bona fide, legitimate association ororganization, or authorized any king, queen, or other representa-tive to make treaties in their name, or to bind them, either indi-vidually, or as an association, by such treaties.

Our pretended treaties, then, being made with no legitimate orbona fide nations, or representatives of nations, and being made,on our part, by persons who have no legitimate authority to actfor us, have intrinsically no more validity than a pretended treatymade by the Man in the Moon with the king of the Pleiades.

xvn.On general principles of law and reason, debts contracted in the

name of "the United States," or of "the people of the United States/'are of no validity. It is utterly absurd to pretend that debts to theamount of twenty-five hundred millions of dollars5 are bindingupon thirty-five or forty millions of people, when there is not aparticle of legitimate evidence—such as would be required to provea private debt—that can be produced against any one of them, thateither he, or his properly authorized attorney, ever contracted topay one cent.

Certainly, neither the whole people of the United States, norany number of them, ever separately or individually contracted topay a cent of these debts.

Certainly, also, neither the whole people of the United States,nor any number of them, ever, by any open, written, or otherauthentic and voluntary contract, united themselves as a firm, cor-poration, or association, by the name of "the United States," or"the people of the United States," and authorized their agents tocontract debts in their name.

Certainly, too, there is in existence no such firm, corporation,or association as "the United States," or "the people of the UnitedStates," formed by any open, written, or other authentic and volun-

6[A reference to the national debt in December, 1869, which totaled $2,453,-000,000 and the approximate population of the country, 39,818,449 people,according to the census the next year. A furious controversy was going onwhen this was written as to how this debt was to be paid. See James G.Randall, The Civil War and Reconstruction (Boston: D. C. Heath & Co.,1937), pp. 832-836.]

42 Lysander Spooner

tary contract, and having corporate property with which to paythese debts.

How, then, is it possible, on any general principle of law orreason, that debts that are binding upon nobody individually, canbe binding upon forty millions of people collectively, when, ongeneral and legitimate principles of law and reason, these fortymillions of people neither have, nor ever had, any corporate prop-erty? never made any corporate or individual contract? and neitherhave, nor ever had, any corporate existence?

Who, then, created these debts, in the name of "the UnitedStates"? Why, at most, only a few persons, calling themselves"members of Congress/' etc., who pretended to represent "thepeople of the United States," but who really represented only asecret band of robbers and murderers, who wanted money to carryon the robberies and murders in which they were then engaged;and who intended to extort from the future people of the UnitedStates, by robbery and threats of murder (and real murder, if thatshould prove necessary), the means to pay these debts.

This band of robbers and murderers, who were the real princi-pals in contracting these debts, is a secret one, because its membershave never entered into any open, written, avowed, or authenticcontract, by which they may be individually known to the world,or even to each other. Their real or pretended representatives, whocontracted these debts in their name, were selected (if selected atall) for that purpose secretly (by secret ballot), and in a way tofurnish evidence against none of the principals individually; andthese principals were really known individually neither to their pre-tended representatives who contracted these debts in their behalf,nor to those who lent the money. The money, therefore, was allborrowed and lent in the dark; that is, by men who did not seeeach other's faces, or know each other's names; who could notthen, and cannot now, identify each other as principals in the trans-actions; and who consequently can prove no contract with eachother.

Furthermore, the money was all lent and borrowed for criminalpurposes; that is, for purposes of robbery and murder; and forthis reason the contracts were all intrinsically void; and wouldhave been so, even though the real parties, borrowers and lenders,had come face to face, and made their contracts openly, in theirown proper names.

NO TREASON 43

Furthermore, this secret band of robbers and murderers, whowere the real borrowers of this money, having no legitimate cor-porate existence, have no corporate property with which to paythese debts. They do indeed pretend to own large tracts of wildlands, lying between the Atlantic and Pacific Oceans, and betweenthe Gulf of Mexico and the North Pole. But, on general principlesof law and reason, they might as well pretend to own the Atlanticand Pacific Oceans themselves; or the atmosphere and the sun-light; and to hold them, and dispose of them, for the payment ofthese debts.

Having no corporate property with which to pay what purportsto be their corporate debts, this secret band of robbers and murder-ers are really bankrupt. They have nothing to pay with. In fact,they do not propose to pay their debts otherwise than from the pro-ceeds of their future robberies and murders. These are confessedlytheir sole reliance; and were known to be such by the lenders ofthe money, at the time the money was lent. And it was, therefore,virtually a part of the contract, that the money should be repaidonly from the proceeds of these future robberies and murders. Forthis reason, if for no other, the contracts were void from the begin-ning.

In fact, these apparently two classes, borrowers and lenders, werereally one and the same class. They borrowed and lent money fromand to themselves. They themselves were not only part and parcel,but the very life and soul, of this secret band of robbers and murder-ers, who borrowed and spent the money. Individually they fur-nished money for a common enterprise; taking, in return, whatpurported to be corporate promises for individual loans. The onlyexcuse they had for taking these so-called corporate promises of,for individual loans by, the same parties, was that they might havesome apparent excuse for the future robberies of the band (that is,to pay the debts of the corporation), and that they might alsoknow what shares they were to be respectively entitled to out ofthe proceeds of their future robberies.

Finally, if these debts had been created for the most innocentand honest purposes, and in the most open and honest manner, bythe real parties to the contracts, these parties could thereby havebound nobody but themselves, and no property but their own. Theycould have bound nobody that should have come after them, andno property subsequently created by, or belonging to, other persons.

44 Lysander Spooner

XVIII.The Constitution having never been signed by anybody; and

there being no other open, written, or authentic contract betweenany parties whatever, by virtue of which the United States govern-ment, so called, is maintained; and it being well known that nonebut male persons, of twenty-one years of age and upwards, areallowed any voice in the government; and it being also well knownthat a large number of these adult persons seldom or never voteat all; and that all those who do vote, do so secretly (by secretballot), and in a way to prevent their individual votes being known,either to the world, or even to each other; and consequently in away to make no one openly responsible for the acts of their agents,or representatives,—all these things being known, the questionsarise: Who compose the real governing power in the country? Whoare the men, the responsible men, who rob us of our property?Restrain us of our liberty? Subject us to their arbitrary dominion?And devastate our homes, and shoot us down by the hundreds ofthousands, if we resist? How shall we find these men? How shallwe know them from others? How shall we defend ourselves andour property against them? Who, of our neighbors, are membersof this secret band of robbers and murderers? How can we knowwhich are their houses, that we may burn or demolish them? Whichtheir property, that we may destroy it? Which their persons, thatwe may kill them, and rid the world and ourselves of such tyrantsand monsters?

These are questions that must be answered, before men can befree; before they can protect themselves against this secret bandof robbers and murderers, who now plunder, enslave, and destroythem.

The answer to these questions is, that only those who have thewill and the power to shoot down their fellow men, are the realrulers in this, as in all other (so-called) civilized countries; for byno others will civilized men be robbed, or enslaved.

Among savages, mere physical strength, on the part of one man,may enable him to rob, enslave, or kill another man. Among bar-barians, mere physical strength, on the part of a body of men, dis-ciplined, and acting in concert, though with very little money orother wealth, may, under some circumstances, enable them to rob,enslave, or kill another body of men, as numerous, or perhaps evenmore numerous, than themselves. And among both savages and

NO TREASON 45

barbarians, mere want may sometimes compel one man to sell him-self as a slave to another. But with (so-called) civilized peoples,among whom knowledge, wealth, and the means of acting in con-cert, have become diffused; and who have invented such weaponsand other means of defense as to render mere physical strengthof less importance; and by whom soldiers in any requisite number,and other instrumentalities of war in any requisite amount, can al-ways be had for money, the question of war, and consequently thequestion of power, is little else than a mere question of money. Asa necessary consequence, those who stand ready to furnish thismoney, are the real rulers. It is so in Europe, and it is so in thiscountry.

In Europe, the nominal rulers, the emperors and kings andparliaments, are anything but the real rulers of their respectivecountries. They are little or nothing else than mere tools, em-ployed by the wealthy to rob, enslave, and (if need be) murderthose who have less wealth, or none at all.

The Rothschilds,6 and that class of money-lenders of whom theyare the representatives and agents—men who never think of lendinga shilling to their next-door neighbors, for purposes of honest in-dustry, unless upon the most ample security, and at the highest6[It is obvious from the context that Spooner intended no particular animus

toward the Rothschilds by citing them in relation to the financing of variousregimes in a number of military adventures in that time. They are men-tioned mainly because of their greater familiarity among a number of suchinternational financiers. One is reminded that not all the enterprises ofthese money lenders were necessarily successful, as there were losers aswell as winners in these State combats; the loan of the French house ofErlanger to the Confederacy in the American Civil War, and that of theAustrian branch of the Rothschilds to the Austrian government and its swiftdefeat by Prussia in the Seven Weeks' War of 1866, may be cited as ex-amples. And, of course, the Rothschilds met their match in such operationson more than one occasion; see, for example, the accounts in Otto Wolff's

Ouvrard: Speculator of Genius (New York: David McKay, 1962). There isa vast literature on this subject.

Spooner overlooked a striking development in this area, the discovery ofthe possibilities involved in fiat money operations by the State as an escapefrom the restraints imposed by a privately-controlled specie-backed moneysystem. The Lincoln government's issuance of greenbacks was the most suc-cessful example of the moment when Spooner was writing. Of course, inmodern times, with the evolution of managed money, the State no longerneed depend on financial houses, but is limited only by the amount of paperand ink, and public confidence, insofar as it can manufacture claims onproduction and present them in the market place in competition with thecitizenry for such goods and services as its objectives require.]

46 Lysander Spooner

rate of interest — stand ready, at all times, to lend money in un-limited amounts to those robbers and murderers, who call them-selves governments, to be expended in shooting down those whodo not submit quietly to being robbed and enslaved.

They lend their money in this manner, knowing that it is to beexpended in murdering their fellow men, for simply seeking theirliberty and their rights; knowing also that neither the interest northe principal will ever be paid, except as it will be extorted underterror of the repetition of such murders as those for which themoney lent is to be expended.

These money-lenders, the Rothschilds, for example, say to them-selves: If we lend a hundred millions sterling to the queen andparliament of England, it will enable them to murder twenty, fifty,or a hundred thousand people in England, Ireland, or India; andthe terror inspired by such wholesale murder, will enable them tokeep the whole people of those countries in subjection for twenty,or perhaps fifty, years to come; to control all their trade and in-dustry; and to extort from them large amounts of money, underthe name of taxes; and from the wealth thus extorted from them,they (the queen and parliament) can afford to pay us a higher rateof interest for our money than we can get in any other way. Or,if we lend this sum to the emperor of Austria, it will enable himto murder so many of his people as to strike terror into the rest,and thus enable him to keep them in subjection, and extort moneyfrom them, for twenty or fifty years to come. And they say thesame in regard to the emperor of Russia, the king of Prussia, theemperor of France, or any other ruler, so called, who, in their judg-ment, will be able, by murdering a reasonable portion of his people,to keep the rest in subjection, and extort money from them, fora long time to come, to pay the interest and principal of the moneylent him.

And why are these men so ready to lend money for murderingtheir fellow men? Solely for this reason, viz., that such loans areconsidered better investments than loans for purposes of honestindustry. They pay higher rates of interest; and it is less troubleto look after them. This is the whole matter.

The question of making these loans is, with these lenders, amere question of pecuniary profit. They lend money to be ex-pended in robbing, enslaving, and murdering their fellow men,solely because, on the whole, such loans pay better than any others.

NO TREASON 47

They are no respecters of persons, no superstitious fools, that rever-ence monarchs. They care no more for a king, or an emperor, thanthey do for a beggar, except as he is a better customer, and canpay them better interest for their money. If they doubt his abilityto make his murders successful for maintaining his power, andthus extorting money from his people in future, they dismiss himas unceremoniously as they would dismiss any other hopeless bank-rupt, who should want to borrow money to save himself from openinsolvency.

When these great lenders of blood-money, like the Rothschilds,have loaned vast sums in this way, for purposes of murder, to anemperor or a king, they sell out the bonds taken by them, in smallamounts, to anybody, and everybody, who are disposed to buythem at satisfactory prices, to hold as investments. They (theRothschilds) thus soon get back their money, with great profits;and are now ready to lend money in the same way again to anyother robber and murderer, called an emperor or a king, who, theythink, is likely to be successful in his robberies and murders, andable to pay a good price for the money necessary to carry them on.

This business of lending blood-money is one of the mostthoroughly sordid, cold-blooded, and criminal that was ever carriedon, to any considerable extent, amongst human beings. It is likelending money to slave traders, or to common robbers and pirates,to be repaid out of their plunder. And the men who loan moneyto governments, so called, for the purpose of enabling the latterto rob, enslave, and murder their people, are among the greatestvillains that the world has ever seen. And they as much deserve tobe hunted and killed (if they cannot otherwise be got rid of) asany slave traders, robbers, or pirates that ever lived.

When these emperors and kings, so-called, have obtained theirloans, they proceed to hire and train immense numbers of profes-sional murderers, called soldiers, and employ them in shooting downall who resist their demands for money. In fact, most of themkeep large bodies of these murderers constantly in their service,as their only means of enforcing their extortions. There are now, Ithink, four or five millions of these professional murderers con-stantly employed by the so-called sovereigns of Europe. The en-slaved people are, of course, forced to support and pay all thesemurderers, as well as to submit to all the other extortions whichthese murderers are employed to enforce.

48 Lysander Spooner

It is only in this way that most of the so-called governments ofEurope are maintained. These so-called governments are in realityonly great bands of robbers and murderers, organized, disciplined,and constantly on the alert. And the so-called sovereigns, in thesedifferent governments, are simply the heads, or chiefs, of differentbands of robbers and murderers. And these heads or chiefs aredependent upon the lenders of blood-money for the means to carryon their robberies and murders. They could not sustain themselvesa moment but for the loans made to them by these blood-moneyloan-mongers. And their first care is to maintain their credit withthem; for they know their end is come, the instant their credit withthem fails. Consequently the first proceeds of their extortions arescrupulously applied to the payment of the interest on their loans.

In addition to paying the interest on their bonds, they perhapsgrant to the holders of them great monopolies in banking, like theBanks of England, of France, and of Vienna; with the agreementthat these banks shall furnish money whenever, in sudden emer-gencies, it may be necessary to shoot down more of their people.Perhaps also, by means of tariffs on competing imports, they givegreat monopolies to certain branches of industry, in which theselenders of blood-money are engaged. They also, by unequal taxa-tion, exempt wholly or partially the property of these loan-mongers,and throw corresponding burdens upon those who are too poor andweak to resist.

Thus it is evident that all these men, who call themselves by thehigh-sounding names of Emperors, Kings, Sovereigns, Monarchs,Most Christian Majesties, Most Catholic Majesties, High Mighti-nesses, Most Serene and Potent Princes, and the like, and whoclaim to rule "by the grace of God," by "Divine Right"—that is, byspecial authority from Heaven—are intrinsically not only the merestmiscreants and wretches, engaged solely in plundering, enslaving,and murdering their fellow men, but that they are also the meresthangers on, the servile, obsequious, fawning dependents and toolsof these blood-money loan-mongers, on whom they rely for themeans to carry on their crimes. These loan-mongers, like theRothschilds, laugh in their sleeves, and say to themselves: Thesedespicable creatures, who call themselves emperors, and kings, andmajesties, and most serene and potent princes; who profess to wearcrowns, and sit on thrones; who deck themselves with ribbons, andfeathers, and jewels; and surround themselves with hired flatterers

NO TREASON 49

and lickspittles; and whom we suffer to strut around, and palmthemselves off, upon fools and slaves, as sovereigns and lawgiversspecially appointed by Almighty God; and to hold themselves outas the sole fountains of honors, and dignities, and wealth, andpower—all these miscreants and imposters know that we make them,and use them; that in us they live, move, and have their being;that we require them (as the price of their positions) to take uponthemselves all the labor, all the danger, and all the odium of allthe crimes they commit for our profit; and that we will unmakethem, strip them of their gewgaws, and send them out into theworld as beggars, or give them over to the vengeance of the peoplethey have enslaved, the moment they refuse to commit any crimewe require of them, or to pay over to us such share of the pro-ceeds of their robberies as we see fit to demand.

XIX.Now, what is true in Europe, is substantially true in this country.

The difference is the immaterial one, that, in this country, there isno visible, permanent head, or chief, of these robbers and murder-ers, who call themselves "the government/' That is to say, thereis no one man, who calls himself the state, or even emperor, king,or sovereign; no one who claims that he and his children rule"by the Grace of God," by "Divine Right," or by special appoint-ment from Heaven. There are only certain men, who call them-selves presidents, senators, and representatives, and claim to bethe authorized agents, for the time being, or for certain shortperiods, of all "the people of the United States"; but who can showno credentials, or powers of attorney, or any other open, authenticevidence that they are so; and who notoriously are not so; but arereally only the agents of a secret band of robbers and murderers,whom they themselves do not know, and have no means of know-ing, individually; but who, they trust, will openly or secretly, whenthe crisis comes, sustain them in all their usurpations and crimes.

What is important to be noticed is, that these so-called presi-dents, senators, and representatives, these pretended agents of all"the people of the United States," the moment their exactions meetwith any formidable resistance from any portion of "the people"themselves, are obliged, like their co-robbers and murderers inEurope, to fly at once to the lenders of blood money, for the meansto sustain their power. And they borrow their money on the same

50 Lysander Spooner

principle, and for the same purpose, viz., to be expended in shoot-ing down all those "people of the United States"—their own con-stituents and principals, as they profess to call them—who resistthe robberies and enslavement which these borrowers of the moneyare practising upon them. And they expect to repay the loans, ifat all, only from the proceeds of the future robberies, which theyanticipate it will be easy for them and their successors to perpetratethrough a long series of years, upon their pretended principals, ifthey can but shoot down now some hundreds of thousands of them,and thus strike terror into the rest.

Perhaps the facts were never made more evident, in any countryon the globe, than in our own, that these soulless blood-moneyloan-mongers are the real rulers; that they rule from the mostsordid and mercenary motives; that the ostensible government, thepresidents, senators, and representatives, so called, are merely theirtools; and that no ideas of, or regard for, justice or liberty had any-thing to do in inducing them to lend their money for the war. Inproof of all this, look at the following facts.

Nearly a hundred years ago we professed to have got rid of allthat religious superstition, inculcated by a servile and corruptpriesthood in Europe, that rulers, so called, derived their authoritydirectly from Heaven; and that it was consequently a religiousduty on the part of the people to obey them. We professed longago to have learned that governments could rightfully exist onlyby the free will, and on the voluntary support, of those who mightchoose to sustain them. We all professed to have known long ago,that the only legitimate objects of government were the maintenrance of liberty and justice equally for all. All this we had pro-fessed for nearly a hundred years. And we professed to look withpity and contempt upon those ignorant, superstitious, and enslavedpeoples of Europe, who were so easily kept in subjection by thefrauds and force of priests and kings.

Notwithstanding all this, that we had learned, and known, andprofessed, for nearly a century, these lenders of blood money had,for a long series of years previous to the war, been the willingaccomplices of the slave-holders in perverting the governmentfrom the purposes of liberty and justice, to the greatest of crimes.They had been such accomplices for a purely pecuniary considera-tion, to wit, a control of the markets in the South; in other words,the privilege of holding the slave-holders themselves in industrial

NO TREASON 51

and commercial subjection to the manufacturers and merchantsof the North (who afterwards furnished the money for the war).And these Northern merchants and manufacturers, these lendersof blood-money, were willing to continue to be the accomplices ofthe slave-holders in the future, for the same pecuniary consideration.But the slave-holders, either doubting the fidelity of their Northernallies, or feeling themselves strong enough to keep their slaves insubjection without Northern assistance, would no longer pay theprice which these Northern men demanded. And it was to en-force this price in the future—that is, to monopolize the Southernmarkets, to maintain their industrial and commercial control overthe South—that these Northern manufacturers and merchants lentsome of the profits of their former monopolies for the war, in orderto secure to themselves the same, or greater, monopolies in thefuture. These — and not any love of liberty or justice — were themotives on which the money for the war was lent by the North.In short, the North said to the slave-holders: If you will not payus our price (give us control of your markets) for our assistanceagainst your slaves, we will secure the same price (keep control ofyour markets) by helping your slaves against you, and using themas our tools for maintaining dominion over you; for the control ofyour markets we will have, whether the tools we use for that purposebe black or white, and be the cost, in blood and money, what itmay.

On this principle, and from this motive, and not from any loveof liberty, or justice, the money was lent in enormous amounts, andat enormous rates of interest. And it was only by means of theseloans that the objects of the war were accomplished.

And now these lenders of blood-money demand their pay; andthe government, so called, becomes their tool, their servile, slavish,villainous tool, to extort it from the labor of the enslaved peopleboth of the North and the South. It is to be extorted by every formof direct, and indirect, and unequal taxation. Not only the nominaldebt and interest—enormous as the latter was—are to be paid infull; but these holders of the debt are to be paid still further—andperhaps doubly, triply, or quadruply paid—by such tariffs on im-ports as will enable our home manufacturers to realize enormousprices for their commodities; also by such monopolies in banking aswill enable them to keep control of, and thus enslave and plunder,the industry and trade of the great body of the Northern people

52 Lysander Spooner

themselves. In short, the industrial and commercial slavery of thegreat body of the people, North and South, black and white, isthe price which these lenders of blood money demand, and insistupon, and are determined to secure, in return for the money lentfor the war.

This programme having been fully arranged and systematized,they put their sword into the hands of the chief murderer of thewar,7 and charge him to carry their scheme into effect. And nowhe, speaking as their organ, says: "Let us have peace'*

The meaning of this is: Submit quietly to all the robbery andslavery we have arranged for you, and you can have "peace." Butin case you resist, the same lenders of blood-money, who furnishedthe means to subdue the South, will furnish the means again tosubdue you.

These are the terms on which alone this government, or, withfew exceptions, any other, ever gives "peace" to its people.

The whole affair, on the part of those who furnished the money,has been, and now is, a deliberate scheme of robbery and murder;not merely to monopolize the markets of the South, but also tomonopolize the currency, and thus control the industry and trade,and thus plunder and enslave the laborers, of both North and South.And Congress and the president are today the merest tools forthese purposes. They are obliged to be, for they know that theirown power, as rulers, so-called, is at an end, the moment theircredit with the blood-money loan-mongers fails. They are like abankrupt in the hands of an extortioner. They dare not say nay toany demand made upon them. And to hide at once, if possible,both their servility and their crimes, they attempt to divert publicattention, by crying out that they have "Abolished Slavery!" Thatthey have "Saved the Country!" That they have "Preserved ourGlorious Union!" and that, in now paying the "National Debt/'as they call it (as if the people themselves, all of them who are tobe taxed for its payment, had really and voluntarily joined in con-tracting it), they are simply "Maintaining the National Honor!"

By "maintaining the national honor," they mean simply that theythemselves, open robbers and murderers, assume to be the nation,and will keep faith with those who lend them the money necessaryto enable them to crush the great body of the people under their7 [Undoubtedly a reference to General Grant, who had just become president.]

NO TREASON 53

feet; and will faithfully appropriate, from the proceeds of theirfuture robberies and murders, enough to pay all their loans, princi-pal and interest.

The pretense that the "abolition of slavery" was either a motiveor justification for the war, is a fraud of the same character withthat of "maintaining the national honor." Who, but such usurpers,robbers, and murderers as they, ever established slavery? Or whatgovernment, except one resting upon the sword, like the one wenow have, was ever capable of maintaining slavery? And why didthese men abolish slavery? Not from any love of liberty in general—not as an act of justice to the black man himself, but only "as awar measure," and because they wanted his assistance, and thatof his friends, in carrying on the war they had undertaken formaintaining and intensifying that political, commercial, and indus-trial slavery, to which they have subjected the great body of thepeople, both white and black. And yet these imposters now cryout that they have abolished the chattel slavery of the black man—although that was not the motive of the war—as if they thoughtthey could thereby conceal, atone for, or justify that other slaverywhich they were fighting to perpetuate, and to render more rigorousand inexorable than it ever was before. There was no difference ofprinciple—but only of degree—between the slavery they boast theyhave abolished, and the slavery they were fighting to preserve; forall restraints upon men's natural liberty, not necessary for thesimple maintenance of justice, are of the nature of slavery, anddiffer from each other only in degree.

If their object had really been to abolish slavery, or maintainliberty or justice generally, they had only to say: All, whether whiteor black, who want the protection of this government, shall have it;and all who do not want it, will be left in peace, so long as theyleave us in peace. Had they said this, slavery would necessarilyhave been abolished at once; the war would have been saved; anda thousand times nobler union than we have ever had would havebeen the result. It would have been a voluntary union of free men;such a union as will one day exist among all men, the world over,if the several nations, so called, shall ever get rid of the usurpers,robbers, and murderers, called governments, that now plunder,enslave, and destroy them.

Still another of the frauds of these men is, that they are nowestablishing, and that the war was designed to establish, "a gov-

54 Lysander Spooner

eminent of consent/' The only idea they have ever manifested asto what is a government of consent, is this—that it is one to whicheverybody must consent, or be shot. This idea was the dominantone on which the war was carried on; and it is the dominant one,now that we have got what is called "peace."

Their pretenses that they have "Saved the Country," and "Pre-served our Glorious Union," are frauds like all the rest of their pre-tenses. By them they mean simply that they have subjugated, andmaintained their power over, an unwilling people. This they call"Saving the Country"; as if an enslaved and subjugated people—or as if any people kept in subjection by the sword (as it is in-tended that all of us shall be hereafter)—could be said to have anycountry. This, too, they call "Preserving our Glorious Union"; as ifthere could be said to be any Union, glorious or inglorious, that wasnot voluntary. Or as if there could be said to be any union betweenmasters and slaves; between those who conquer, and those whoare subjugated.

All these cries of having "abolished slavery," of having "savedthe country," of having "preserved the union," of establishing "agovernment of consent," and of "maintaining the national honor,"are all gross, shameless, transparent cheats—so transparent that theyought to deceive no one—when uttered as justifications for the war,or for the government that has succeeded the war, or for now com-pelling the people to pay the cost of the war, or for compellinganybody to support a government that he does not want.

The lesson taught by all these facts is this: As long as mankindcontinue to pay "national debts," so-called—that is, so long as theyare such dupes and cowards as to pay for being cheated, plundered,enslaved, and murdered—so long there will be enough to lend themoney for those purposes; and with that money a plenty of tools,called soldiers, can be hired to keep them in subjection. But whenthey refuse any longer to pay for being thus cheated, plundered,enslaved, and murdered, they will cease to have cheats, and usurp-ers, and robbers, and murderers and blood-money loan-mongersfor masters.8

8[Despite the severity of his language, Spooner deserves recognition as one ofthe few observers, in the period immediately after the Civil War, to dis-miss the simple propaganda that the war was the consequence of thesingle-minded objective of abolishing chattel slavery, and to examine atleast in part the deeper material factors involved.]

NO TREASON 56

APPENDIX.Inasmuch as the Constitution was never signed, nor agreed to,

by anybody, as a contract, and therefore never bound anybody,and is now binding upon nobody; and is, moreover, such an oneas no people can ever hereafter be expected to consent to, exceptas they may be forced to do so at the point of the bayonet, it isperhaps of no importance what its true legal meaning, as a con-tract, is. Nevertheless, the writer thinks it proper to say that, inhis opinion, the Constitution is no such instrument as it has gener-ally been assumed to be; but that by false interpretations, and nakedusurpations, the government has been made in practice a verywidely, and almost wholly, different thing from what the Constitu-tion itself purports to authorize. He has heretofore written much,and could write much more, to prove that such is the truth. Butwhether the Constitution really be one thing, or another, this muchis certain—that it has either authorized such a government as wehave had, or has been powerless to prevent it. In either case, it isunfit to exist.

INTRODUCTION

by James J. Martin

The celebrated Letter to Thomas F. Bayard was a product of acoincidental triangular confrontation of Spooner, Senator ThomasF. Bayard (D.,Del.) (1828-1898) and Lyman Abbott (1835-1922),the most eminent figure in the United States in the propagation ofthe theological tenets of Christian Evolution.1 Abbott also was toestablish a formidable reputation in journalism, in addition to takingover the pulpit of the famous Plymouth Church in Brooklyn uponthe death of Henry Ward Beecher (1813-1887), the most famousProtestant clergyman in America in the post-Civil War generation.

Beecher founded a journal in 1870, The Christian Union, whichbecame a significant voice in the country in the last decades of thenineteenth century.2 Abbott joined him as co-editor m 1876, andbecame sole editor for a short span of years beginning in 1882.Abbott also wrote a department titled "The Outlook*'8 from thebeginning of his association with Beecher in editing The ChristianUnion. This involved a weekly review of current events and politicsquite apart from theology or religion, and gained the journal manyreaders and Abbott an increasingly influential status as a secular*commentator on the political and social scene.xSee in particular Abbott's books, The Theology of an Evolutionist (New York:

The Outlook Co., 1897); What Christianity Means to Me (New York:Macmillan, 1921); The Evolution of Christianity (Boston: Houghton, Mifflin,1896).

2The Christian Union began with the issue of January, 1870, and continuedthrough the number for June, 1893, when the title was changed to TheOutlook. It became increasingly prestigious thereafter, absorbing severalother journals, suspending publication in May, 1932. It resumed as TheNew Outlook the following month, and suspended permanently in June,1935.

3Abbott, Silhouettes of My Contemporaries (London: George Allen and Unwin,1922), preface, p. v. The title of this department ultimately became thename of the journal itself.

4Abbott had no difficulty on the subject of conflict between Church and State;his strong patriotic and nationalist sentiments guaranteed this would not be aproblem. On a trip to Europe in 1902 he commented favorably on the three-year period of compulsory military service in Italy, and considered it inimportance "next to the school system" as a device through which theItalian State might have proper time to redirect young men from the in-fluence of the Catholic Church to the State. Abbott, Impressions of a Care-less Traveler (New York: The Outlook Co., 1909), pp. 182-183.

56

A LETTER 57

Abbott, once a member of the Republican Party, had severed hisrelations with it by this time, as had a number of other noted per-sonalities, mainly because of unhappiness and revulsion over theconduct of the Reconstruction program in the South after the CivilWar.5 He relates in his memoirs that upon taking over editorialcontrol of The Christian Union early in 1882, "I resolved to make itin politics independent of all party organization." A feature of thejournal for some time thereafter was a series of fierce editorialswhich criticized politics and politicians unmercifully, including suchsentiments as "Both parties are corpses; the country needs a liveone."6

The immense increase in State intervention and concentration ofpower which resulted from the Civil War was still insufficient forAbbott. In this time of the innovation of centralized monopoly ofmoney issue and the proliferation of federal interventions and con-trols7 (which, incidentally, make a hash out of the easy and glibgeneralization that the 1865-1900 era was a time of runaway in-dividualist "laissez faire"), Abbott wanted far more done in the

5It has been pointed out that Spooner also was a thunderous antagonist ofReconstruction as early as 1870. Perhaps a goodly majority of New Englandabolitionists were hostile to Reconstruction, a commentary on how badlyaskew the drive to end slavery had gone, though the Civil War was no moreshort of achieving "war aims" than any other martial enterprise accompaniedby high and noble moral propaganda. Witness the "War to Make the WorldSafe for Democracy" and "Make This the Last War" slogans of World WarsI and II in this country. Spooner had been an active pamphleteer in the pre-Civil War attack on slavery, ironically enough fought from an argumentbased on the Constitution. (See his Unconstitutionality of Slavery, Boston,1845). It may be that Spooner was subsequently influenced in his assaultingthe validity of the Constitution by the pre-war condemnation by his fellowtownsman William Lloyd Garrison, as "a convenant with death and an agree-ment with hell." Spooner also was not deficient in emotional content, buthis approach was primarily logically analytic and not denunciatory.

6Abbott, Reminiscences (Boston: Hougbton, Mifflin, 1915, 1923), Chapter 18,"A Political Revolution," pp. 430-431. Abbott, however, was an uncom-promising enemy of individualism; as early as 1865 he had written, "In-dividualism^ is the characteristic of simple barbarism, not of republicancivilization." Ibid., p. 440.

7Those interested in searching out the origins of the ideology of State socialistpropaganda and government ownership or control proposals might find itrewarding to divert their attention away from immigrant radicals of the1849-1920 period and from native "proletarian" protagonists, and examinefor a change the writings and thought of a generous band of native Anglo-Saxon figures of profoundly respectable reputation with an ancestry goingback virtually to the Mayflower, if not before. The notion that such ideasare the product of recently arrived "subversives" dies hard, of course; it isone of the foundations of the "golden age" theory.

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department of governmental direction, regulation, and control.8

And it was in exasperation and discontent with the politicians ofboth parties that he condemned them all, although it was his reflec-tion upon their moral character which drew a protesting letter fromSenator Bayard.

And it was this objection from Bayard which provided Spoonerthe opportunity to introduce his argument, published separately,and directed solely to Bayard. Spooner's account of this is lost, sincehis papers and literary effects, in the possession of Benjamin R.Tucker, went up in flames when Tucker's publishing enterprise andits entire contents were destroyed by fire early in 1908.9 But he washardly a collaborator with Abbott; it probably would have beenhard to find any two men in America as opposite as Abbott andSpooner. The two represented utterly divergent viewpoints andfundamental positions. They simply used Senator Bayard, each inhis own way, to establish and further their views.

Bayard, if anything, though a United States Senator from Dela-ware for sixteen years (1869-1885), came closer to Spooner in over-all ideological convictions, even if starting from quite differentpremises. William Alexander Robinson, in the Dictionary of Ameri-can Biography,10 characterized Bayard as having built a career upondefending "unpopular minorities and hopeless causes/' A "Demo-crat of the old school," he was implacably opposed to Reconstructionpolicies as "harsh and impolitic," and because "they involved anundue centralization of federal power with a corresponding ag-grandizement of the executive branch of that government/'

Bayard is further described as having combated "anything elsethan a currency of value," namely, gold and silver, as "lawful orsafe money." During his tenure, Bayard's party was almost con-

8"I have steadfastly advocated the doctrine that not only the railways, but themines, the forests, the waterways—in short, the land and its contents^-mustbe brought under government regulation, state or national, and that thisregulation must be extended to all forms of business—including the regulationof food, beverages, and drugs—as fast and as far as is necessary to conservethe public welfare." Reminiscences, p. 441. Despite his enthusiasm for muchof the foundation of nationalistic socialism, Abbott was hostile to Marxiancommunism. Abbott, Silhouettes of My Contemporaries, pp. 307-309.

9See this writer's account in the introduction to Paul Eltzbacher, Anarchism(New York: Libertarian Book Club, 1960).

10The excellent sketch by Robinson in DAB, Vol. 2, pp. 70-72. The definitivefull-length account of Bayard's tenure in the Senate is Charles Callan Tansill,The Congressional Career of Thomas Francis Bayard, 1869-1885 (Washing-ton: Georgetown University Press, 1946).

A LETTER 59

tinuously in the minority, so the situation provided an almost end-less opportunity to protest the employment of State power by theRepublicans for the material enhancement of specific favored in-dividuals or groups. Robinson declared that Bayard "hated classlegislation of every sort, whether it took the form of ship subsidies,railroad land grants, or tariff protection," and that "militarism andsocialism he considered equally inimical to freedom." But from thecontext of action, it appears that such public positions were mattersof personal conviction, and not mere temporary political expediencyor opportunistic harassment of the majority.

There is no direct evidence that Bayard was influenced bySpooner's Letter, an onslaught which dimmed the critical elementin Abbott's position almost to the point of extinction. Nor is thereverifiable documentation attesting to his having commented onSpooner's pamphlet, Natural Law, which Spooner sent Bayard andwhich undoubtedly contributed to further discomfort for the Sen-ator. Of course, it was hardly possible to come to grips with Spoonerand remain a politician. But Bayard's language in Senate debatetwo months after Spooner's Letter sounded almost as if it had beenprepared by Spooner. In a speech on a proposed tax bill Bayarddeclared, "A tax, after all, is against natural right; it is a paymentforced by the government for its use,"11 and went on to criticize theinternal revenue system in terms which read like yesterday's news-paper editorial,12 though there is a vast difference between the taxjungle of today and the system Bayard found detestable.

Subsequent Senate exchanges reveal Bayard expressing otherstriking views concerning objections to the waxing power of Wash-ington. In an attack on a bill in April, 1884, which proposed totransfer to the Congress the power to suppress and extirpate con-tagious diseases among domestic animals throughout the country,Bayard asserted opposition again in language which has a startlingcontemporary quality. "This constant intervention by governmentin tasks that belong to the individual must cease," he warned, "orours will become as bureaucratic a government as that of Russia." [!]"This bill is nothing in the world but another illustration of the prin-

^Congressiond Record, 47 Cong., 1 sess., Part 6, July 22, 1882, p. 6356.12"There are many features of the internal revenue system which are to me

most repulsive, most objectionable," Bayard declared, selecting for specialcriticism "their inquisitorial features and the manner in which they havebeen often-times conducted." Congressional Record, 47 Cong., 1 sess., Part 6,July 24,1882, p. 6392.

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ciple of socialism that is fast growing under our practices of legisla-tion and penetrating every branch of this government and enteringinto almost every detail of our public expenditure. Day by day thedoctrines and practices of a paternal government are speciously andtentatively expanding over the country, and the habit of popularthought is unhappily becoming accustomed to them."18

It is in the context of these factors and awareness of these back-ground circumstances that one should read Spooner's letter of May22, 1882. It is regrettable that Bayard's senatorial tenure ended in1885 and that Spooner died in 1887. It would have been an excitingintellectual event had they and Abbott entered into an extendedthree-way public controversy and further explored the divergentpositions they represented. It would also have been most usefulfor the illumination of the current day, three generations removed.The questions involved are still unresolved.

^Congressional Record, 48 Cong., 1 sess., April 28, 1884, pp. 3471-73. Bayardcited from Herbert Spencer's "Coming Slavery" article in the ContemporaryReview, above, p. 3472.

A LETTER

THOMAS F, BAYARD

CHALLENGING HIS R I G H T - A N D THAT OK ALL THF.OTHER SO-CALLED SENATORS AND REPRE-

SENTATIVES IN CONGRESS-

TO EXERCISE ANY LEGISLATIVE: POWKR WHATEVEROVER THK PEOPLE OK THK UNITED STATES.

BY LYSANDER SPOONER.

BOSTON, MAM.:

PUBLISHED BY THE AUTHOR.

1902.

A Letter toThomas F. Bayard

"Challenging his right—and that of all the other so-calledsenators and representatives in Congress—to exercise anylegislative power whatever over the people of the UnitedStates."

by Lysander Spooner

To Thomas F. Bayard, of Delaware:Sir—I have read your letter to Rev. Lyman Abbott, in which you

express the opinion that it is at least possible for a man to be alegislator (under the Constitution of the United States) and yet bean honest man.

This proposition implies that you hold it to be at least possiblethat some four hundred men should, by some process or other,become invested with the right to make laws of their own—that is,laws wholly of their own device, and therefore necessarily distinctfrom the law of nature, or the principles of natural justice; and thatthese laws of their own making shall be really and truly obligatoryupon the people of the United States; and that, therefore, the peoplemay rightfully be compelled to obey them.

All this implies that you are of the opinion that the Congress ofthe United States, of which you are a member, has, by some processor other, become possessed of some right of arbitrary dominionover the people of the United States; which right of arbitrarydominion is not given by, and is, therefore, necessarily in conflictwith, the law of nature, the principles of natural justice, and thenatural rights of men, as individuals. All this is necessarily impliedin the idea that the Congress now possesses any right whatever tomake any laws whatever, of its own device—that is, any laws thatshall be either more, less, or other than that natural law, which itcan neither make, unmake, nor alter—and cause them to be en-forced upon the people of the United States, or any of them, againsttheir will.

62

A LETTER 63

You assume that the right of arbitrary dominion—that is, theright of making laws of their own device, and compelling obedienceto them—is a "trust" that has been delegated to those who nowexercise that power. You call it "the trust of public power."

But, Sir, you are mistaken in supposing that any such power hasever been delegated, or ever can be delegated, by any body, to anybody.

Any such delegation of power is naturally impossible, for thesereasons, viz:

1. No man can delegate, or give to another, any right of arbitrarydominion over himself; for that would be giving himself away as aslave. And this no one can do. Any contract to do so is necessarilyan absurd one, and has no validity. To call such a contract a "con-stitution," or by any other high-sounding name, does not alter itscharacter as an absurd and void contract.

2. No man can delegate, or give to another, any right of arbitrarydominion over a third person; for that would imply a right in thefirst person, not only to make the third person his slave, but alsoa right to dispose of him as a slave to still other persons. Any con-tract to do this is necessarily a criminal one, and therefore invalid.To call such a contract a "constitution" does not at all lessen itscriminality, or add to its validity.

These facts, that no man can delegate, or give away, his ownnatural right to liberty, nor any other man's natural right to liberty,prove that he can delegate no right of arbitrary dominion whatever—or, what is the same thing, no legislative power whatever—over him-self or anybody else, to any man, or body of men.

This impossibility of any man's delegating any legislative powerwhatever, necessarily results from the fact that the law of naturehas drawn the line, and the only line—and that, too, a line that cannever be effaced nor removed—between each man's own interestand inalienable rights of person and property, and each and everyother man's inherent and inalienable rights of person and property.It, therefore, necessarily fixes the unalterable limits, within whichevery man may rightfully seek his own happiness, in his own way,free from all responsibility to, or interference by, his fellow men,or any of them.

All this pretended delegation of legislative power—that is, of apower, on the part of the legislators, so-called, to make any lawsof their own device, distinct from the law of nature—is therefore

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an entire falsehood; a falsehood whose only purpose is to cover andhide a pure usurpation, by one body of men, of arbitrary dominionover other men.

That this legislative power, or power of arbitrary dominion, isa pure usurpation, on the part of those who now exercise it, and nota "trust" delegated to them, is still further proved by the fact thatthe only delegation of power, that is even professed or pretendedto be made, is made secretly—that is, by secret ballot—and not inany open and authentic manner; and therefore not by any men, orbody of men, who make themselves personally responsible, as prin-cipals, for the acts of those to whom they profess to delegate thepower.

All this pretended delegation of power having been made secret-ly—that is, only by secret ballot—not a single one of all the legis-lators, so-called, who profess to be exercising only a delegatedpower, has himself any legal knowledge, or can offer any legalproof, as to who the particular individuals were who delegated itto him. And having no power to identify the individuals who pro-fessed to delegate the power to him, he cannot show any legal proofthat anybody ever even attempted or pretended to delegate it tohim.

Plainly, a man who exercises any arbitrary dominion over othermen and who claims to be exercising only a delegated power, butcannot show who his principals are, nor, consequently, prove thathe has any principals, must be presumed, both in law and reason,to have no principals; and therefore to be exercising no power buthis own. And having, of right, no such power of his own, he is,both in law and reason, a naked usurper.

Sir, a secret ballot makes a secret government; and a secretgovernment is a government by conspiracy; in which the people atlarge can have no rights. And that is the only government we nowhave. It is the government of which you are a voluntary memberand supporter, and yet you claim to be an honest man. If you arean honest man, is not your honesty that of a thoughtless, ignorantman, who merely drifts with the current, instead of exercising anyjudgment of his own?

For still another reason, all legislators, so-called, under the Con-stitution of the United States, are exercising simply an arbitraryand irresponsible dominion of their own; and not any authority thathas been delegated, or pretended to have been delegated, to them.

A LETTER 65

And that reason is that the Constitution itself (Art. I, Sec. 6) pre-scribes that:

"For any speech or debate (or vote) in either house, they (theSenators and Representatives) shall not be questioned (held to anylegal responsibility) in any other place."

This provision makes the legislators constitutionally irresponsibleto anybody; either to those on whom they exercise their power, orto those who may have, either openly or secretly, attempted or pre-tended to delegate power to them. And men who are legally re-sponsible to nobody for their acts, cannot truly be said to be theagents of any body, or to be exercising any power but their own;for all real agents are necessarily responsible both to those onwhom they act, and to those for whom they act.

To say that the people of this country ever have bound, or evercould bind, themselves by any contract whatever—the Constitution,or any other—to thus give away all their natural rights of property,liberty, and life, into the hands of a few men—a mere conclave—andthat they should make it a part of the contract itself that these fewmen should be held legally irresponsible for the disposal theyshould make of those rights, is an utter absurdity. It is to say thatthey have bound themselves, and that they could bind themselves,by an utterly idiotic and suicidal contract.

If such a contract had ever been made by one private individualto another, and had been signed, sealed, witnessed, acknowledged,and delivered, with all possible legal formalities, no decent courton earth—certainly none in this country—would have regarded it, fora moment, as conveying any right, or delegating any power, or ashaving the slightest legal validity, or obligation.

For all the reasons now given, and for still others that might begiven, the legislative power now exercised by Congress is, in bothlaw and reason, a purely personal, arbitrary, irresponsible, usurpeddominion on the part of the legislators themselves, and not a powerdelegated to them by anybody.

Yet under the pretense that this instrument gives them the rightof an arbitrary and irresponsible dominion over the whole peopleof the United States, Congress has now gone on, for ninety yearsand more, filling great volumes with laws of their own device,which the people at large have never read, nor even seen, nor everwill read or see; and of whose legal meanings it is morally im-

66 Lysander Spooner

possible that they should ever know anything. Congress has neverdared to require the people even to read these laws. Had it doneso, the oppression would have been an intolerable one; and thepeople, rather than endure it, would have either rebelled, and over-thrown the government, or would have fled the country. Yet theselaws, which Congress has not dared to require the people even toread, it has compelled them, at the point of the bayonet, to obey.

And this moral, and legal, and political monstrosity is the kindof government which Congress claims that the Constitution author-izes it to impose upon the people.

Sir, can you say that such an arbitrary and irresponsible dominionas this, over the properties, liberties, and lives of fifty millions ofpeople—or even over the property, liberty, or life of any one ofthose fifty millions—can be justified on any reason whatever? Ifnot, with what color of truth can you say that you yourself, or any-body else, can act as a legislator, under the Constitution of theUnited States, and yet be an honest man?

To say that the arbitrary and irresponsible dominion, that isexercised by Congress, has been delegated to it by the Constitution,and not solely by the secret ballots of the voters for the time being,is the height of absurdity; for what is the Constitution? It is, at best,a writing that was drawn up more than ninety years ago; was as-sented to at the time only by a small number of men; generallythose few white male adults who had prescribed amounts of prop-erty; probably not more than two hundred thousand in all; or onein twenty of the whole population.

Those men have been long since dead. They never had anyright of arbitrary dominion over even their contemporaries; andthey never had any over us. Their wills or wishes have no morerightful authority over us, than have the wills or wishes of menwho lived before the flood. They never personally signed, sealed,acknowledged, or delivered, or dared to sign, seal, acknowledge, ordeliver, the instrument which they imposed upon the country aslaw. They never, in any open and authentic manner, bound eventhemselves to obey it, or made themselves personally responsiblefor the acts of their so-called agents under it. They had no naturalright to impose it, as law, upon a single human being. The wholeproceeding was a pure usurpation.

In practice, the Constitution has been an utter fraud from thebeginning. Professing to have been "ordained and established" by

A LETTER 67

"we, the people of the United States," it has never been submittedto them, as individuals, for their voluntary acceptance or rejection.They have never been asked to sign, seal, acknowledge, or deliverit, as their free act and deed. They have never signed, sealed, ac-knowledged, or delivered it, or promised, or laid themselves underany kind of obligation, to obey it. Very few of them have ever read,or even seen it; or ever will read or see it. Of its legal meaning (ifit can be said to have any) they really know nothing; and never did,nor ever will, know anything.

Why is it, Sir, that such an instrument as the Constitution, forwhich nobody has been responsible, and of which few persons haveever known anything, has been suffered to stand, for the last ninetyyears, and to be used for such audacious and criminal purposes?It is solely because it has been sustained by the same kind of con-spiracy as that by which it was established; that is, by the wealthand the power of those few who were to profit by the arbitrarydominion it was assumed to give them over others. While the poor,the weak, and the ignorant, who were to be cheated, plundered, andenslaved by it, have been told, and some of them doubtless made tobelieve, that it is a sacred instrument, designed for the preservationof their rights.

These cheated, plundered, and enslaved persons have been madeto feel, if not to believe, that the Constitution had such miraculouspower, that it could authorize the majority (or even a plurality) ofthe male adults, for the time being—a majority numbering at thistime, say, five millions in all—to exercise, through their agents, se-cretly appointed, an arbitrary and irresponsible dominion over theproperties, liberties, and lives of the whole fifty millions; and thatthese fifty millions have no rightful alternative but to submit alltheir rights to this arbitrary dominion, or suffer such confiscation,imprisonment, or death as this secretly appointed, irresponsiblecabal, of so-called legislators, should see fit to resort to for the main-tenance of its power.

As might have been expected, and as was, to a large degree, atleast, intended, this Constitution has been used from the beginningby ambitious, rapacious, and unprincipled men, to enable them tomaintain, at the point of the bayonet, an arbitrary and irresponsibledominion over those who were too ignorant and too weak to pro-tect themselves against the conspirators who had thus combinedto deceive, plunder, and enslave them.

68 Lysander Spooner

Do you really think, Sir, that such a constitution as this can availto justify those who, like yourself, are engaged in enforcing it? Isit not plain, rather, that the members of Congress, as a legislativebody, whether they are conscious of it or not, are, in reality, a merecabal of swindlers, usurpers, tyrants and robbers? Is it not plainthat they are stupendous blockheads, if they imagine that they areanything else than such a cabal? or that their so-called laws imposethe least obligation upon anybody?

If you have never before looked at this matter in this light, I askyou to do so now. And in the hope to aid you in doing so candidly,and to some useful purpose, I take the liberty to mail for you apamphlet entitled:

"NATURAL LAW; OR THE SCIENCE OF JUSTICE; a Treatiseon Natural Law, Natural Justice, Natural Rights, Natural Liberty,and Natural Society; Showing That All Legislation Whatsoever Isan Absurdity, a Usurpation, and a Crime. Part I."

In this pamphlet, I have endeavored to controvert distinctly theproposition that, by any possible process whatever, any man, orbody of men, can become possessed of any right of arbitrary do-minion over other men, or other men's property; or, consequently,any right whatever to make any law whatever, of their o w n -distinct from the law of nature—and compel any other men to obeyit.

I trust I need not suspect you, as a legislator under the Constitu-tion, and claiming to be an honest man, of any desire to evade theissue presented in this pamphlet. If you shall see fit to meet it, Ihope you will excuse me for suggesting that—to avoid verbiage, andeverything indefinite—you give at least a single specimen of a lawthat either heretofore has been made, or that you conceive it pos-sible for legislators to make—that is, some law of their own device—that either has been, or shall be, really and truly obligatory uponother persons, and which such other persons have been, or may be,rightfully compelled to obey.

If you can either find or devise any such law, I trust you willmake it known, that it may be examined, and the question of itsobligation be fairly settled in the popular mind.

But if it should happen that you can neither find such a law inthe existing statute books of the United States, nor, in your ownmind, conceive of such a law as possible under the Constitution, I

A LETTER 69

give you leave to find it, if that be possible, in the constitution orstatute book of any other people that now exist, or ever have existed,on the earth.

If, finally, you shall find no such law, anywhere, nor be able toconceive of any such law yourself, I take the liberty to suggest thatit is your imperative duty to submit the question to your associatelegislators; and, if they can give no light on the subject, that youcall upon them to burn all the existing statute books of the UnitedStates, and then to go home and content themselves with the exer-cise of only such rights and powers as nature has given to them incommon with the rest of mankind.

70 Lysander Spooner

The American Letter Mail Company

Spooner's Private Post OfficeLysander Spooner appears at various times in American affairsof widely differing substance in the 19th century, with uniquelyindividual published contributions to legal, economic, political andeven theological theory. The largest part of such activities is knownonly to a small number of students and researchers, and the historytextbooks usually do not even mention his name. The best knownventure of Spooner, which has been memorialized by several com-mentators, was his private mail business, the American Letter MailCompany. This was one of many such enterprises which competedsuccessfully against the federal government's post office, but weredriven out of business by an act of Congress which became effectiveJuly 1, 1845.

Spooner fought this in the courts and lost, but he always main-tained that the government adopted his lower rates. (See his TheUnconstitutionality of the Laws of Congress Prohibiting PrivateMails [New York, 1944], and Who Caused the Reduction inPostage? [Boston, 1851].) He has been repeatedly described as"the father of cheap postage in America/' Apparently Spooner'scompany handled a generous volume of business, because coversbearing its stamp and cancellation are not considered "of greatrarity" even today, according to the specialist Donald S. Patton inThe Philatelist. (One will find of considerable interest with refer-ence to Spooner and his post the article by Ernest A. Kehn, HenryM. Goodkind and Elliott Perry, "Look Before You Lick," ReadersDigest [June, 1947], pp. 125-127, and Henry F. Unger's "Spoonerand the Post Office," Business Progress [March-April, 1964], p. 16.)

Facing: one of the best-preserved covers of Spooner's American LetterMail Company, from the Richard Schwartz collection. A particular thanksis extended to David L. Jarrett of the Postal History Society for making itavailable.

Let's Abolish Government - Lysander Spooner

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