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MASSACHUSETTS QUARTERLY REVIEW.
NO. II.-MARCH, 1848.
ART. I.- HAS SLAVERY IN THE UNITED STATES
A LEGAL BASIS?
1.- The Unconstitutionality of Slavery. Parts First and
Second. By LYSANDER SPOONER. 12mo. pp. 281. 2. – Review of Lysander Spooner': Essay on the Unconsti
tutionality of Slavery. By WENDELL PHILLIPS. 8vo.
ONE main pillar of domestic slavery, as it now exists in the United States of America, is the idea that it rests upon the law. Law is regarded with veneration, as the great foundation and support of the rights of property-of personal rights ; in a word-of social organization. Jurists, with a natural disposition to exaggerate the importance of a profession to which most of them have belonged, have been induced to overlook or to disregard the natural foundation of rights. Most of them represent the idea of property as resting on a merely artificial basis--the law; not the law of nature, but the law of convention. Upon that same artificial basis, too, they are induced to rest even the most important of personal rights. These ideas, widely spread through the community, greatly modify public opinion upon the question of slavery. In the abstract, slavery, all admit, is sheer cruelty and injustice. But slavery, as it exists in the United States, is supposed to be legal; and being legal, is supposed to acquire a certain character of right. To use our best efforts for the suppression of cruelty and injustice, is admitted to be a moral duty. But then it is a moral duty, and, in the opinion of many, a paramount duty, to obey the law.
Prevailing ideas on the theory of government tend precisely NO. II.
the same way. Those ideas, derived from Hobbes, Locke, and Rousseau, represent government as a contract. The natural state of man, the state of nature, is assumed to be a state of war, of hostility on the part of each individual against every other. To escape out of this wretched condition, men, we are told, resort to the artificial expedient of government founded on contract. According to this theory, the only moral principle involved in the idea of government is - Contract; and this contract, we are told, must be preserved inviolate, or government is at an end, and chaos comes again. No matter how absurd; no matter how unjust towards ourselves or others : a bargain is a bargain ; and though it stipulates for the pound of flesh, it must be fulfilled. Many excellent men, ready to denounce slavery in the abstract as the sum of all iniquities, will tell us, in the same breath, that the “compromises of the
" constitution” guarantee its existence. It is morally wrong, they say, to attempt to evade or get over, or set aside, those compromises; and this appeal to notions of mercantile honor is not without a powerful influence upon the best portion of the community.
These opinions respecting law and government involve, indeed, the inconsistency and absurdity
of supposing that men have power, by arrangement and convention, to make that artificially right which naturally is wrong. There have not been wanting able writers to expose this inconsistency and absurdity. These writers have shown clearly enough, that the basis of law, the basis of property, the basis of personal rights, the basis of government, are to be sought for and found in the nature and constitution of man, not in
artificial contracts, or arbitrary statutes or usages. They have shown clearly enough, that law, so far as it has any binding moral force, is and must be conformable to natural principles of right; indeed, that in this conformity alone its moral binding force consists; and that so far as this conformity is wanting, what is called law is mere violence and tyranny, to which a man may submit for the sake of peace, but which he has a moral right to resist passively, at all times, and forcibly, when he has any fair prospect of success. Such, indeed, was the principle upon which the American Revolution was justified. The acts of parliament of which the colonies complained, had all the forms of law, and Mansfield and other great lawyers said they were law. But in the view of the colonists, they lacked the substance without which law cannot exist. They subverted those eternal principles of right and equity expressed in that maxim and usage of the English constitution, which coupled taxation and representation together. Taxation without representation was denounced by the colonists as mere robbery, to which, though concealed under the form of law, they were not legally obliged to, and would not, submit.
The principle of the perpetuity and inviolability of contracts, no matter what their object, character, or operation, has been attacked with no less energy and success. It has been triumphantly shown, that the very essence and substratum of contract is, mutual benefit. Contracts, whether in law or morals, have no binding force without a consideration, a good and valuable consideration. Men cannot bargain away either their own rights or the rights of others. All such pretended contracts are void from the beginning--the spawn of fraud in the one party, and ignorance in the other, or of injustice and immoral intentions in both. To say, that by committing the folly or the crime of contracting to do an immoral act a man lays himself under a moral obligation to do that immoral act, is to orerturn the very foundations of morality. Nor are these principles the mere notions of theoretical moralists. So far as relates to private contracts, they are fully acknowledged and admitted by all courts of law throughout the civilized world. They constitute, indeed, the fundamental principle upon which those courts administer the law of contracts.
But all these appeals to general principles, however able and conclusive, when applied to the question of slavery have little weight with the great body of the community. Did they relate to points in which that body had a direct, obvious, personal interest, the appeal, no doubt, would be irresistible. When Andros, governor of New England, undertook to de. prive people of their lands, under pretence of defective titles, o the men of Massachusetts did much quote Lord Coke;" and finding that useless, they stripped Andros of his power. When Grenville undertook to levy taxes without their consent, they were ready at once to resort to fundamental principles, and, when those principles failed, to their muskets. Then, the case touched themselves. When it only touches the unfortunate negroes of the southern states, or a few poor colored people of our own, it is quite a different matter. Appeal to principle is then denounced as wild and visionary. Always fearful of effort and responsibility, the great mass of the community entrench themselves on this question behind statutes, decisions, usage, the opinions of lawyers, and the current notions of the day. To be sure, slavery is wrong and unjust, and impolitic and wicked, but then it is legal.
Nor, indeed, is this conduct to be wondered at. The very courts, those reverend depositories of the knowledge of the law, those vicegerents upon earth of eternal equity and justice, have themselves set the example. In mere questions of private right, the courts resort, without hesitation, to those eternal principles of right reason, that is, of true morality, which they boast to be the foundation of law. They set aside, without hesitation, every private contract which has in it any trace or tincture of fraud or crime. But when it comes to the enforcement of political contracts, a sad change is observable. Individual lawyers, indeed even judges on the bench, of the highest eminence, have not hesitated to say, that an act of parliament contrary to the law of God, that is, contrary to the eternal principles of right, is void. Such opinions have been thrown out incidentally, with great apparent boldness and decision. But when has an act of parliament been set aside on that ground? Never! No court in England or America ever yet dared to do it. Courts have bowed submissively at the feet of the governments, their creators, ascribing to those creators an omnipotence over right and wrong greater than the philosophy of our day is willing to ascribe to God himself. They hold, indeed, to the maxim Fiat justitia, ruat coelum, but in this sense: “the will of the government must be done, though heaven itself be trampled under foot.” It must be admitted as the settled doctrine of our courts of law, that the supreme legislative authority has the power to declare to be law even that which is against right. But this has been a forced concession ; and as Gallileo, when obliged by the Inquisition to confess that the earth stood still, mumbled yet between his teeth, as he rose from his knees, E pur se muove, “ It moves though," !-- so our courts of law, blushing and stammering at the disgraceful concession extorted from them by fear and power, have done their best to limit and to nullify that concession. If the supreme legislature chooses to say that manifest wrong shall be law, the courts submit to enforce it as such. But then they will never presuppose that the supreme legislature intends to do any thing so absurd and cruel. If the intention is plain, manifest, and clear, it must be enforced; but the courts will never resort to implication, or conjecture, or construction, to make out any such intention. This principle in the interpretation of legal enactments, perfectly well settled and established in all the courts of England and America, is thus laid down by Chief Justice Marshall, in the case of United States v. Fisher, 2 Cranch, 390. “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”
In all cases of attempted injustice under the form of law, courts thus reserve to themselves a power to defeat the wicked legislative intention, by refusing to suppose the legislature capable of any such wickedness. The extent to which this is carried out in particular cases, must evidently depend much upon circumstances, especially upon the character and position of the court. Where court is resolved not to see, and is so situated as to be able to carry out its resolution, “irresistible clearness" is out of the question. No possible form of words can produce it. The disposition on the part of the court to see or not to see a wicked intention, will depend upon two things: first, the opinion of the court as to the degree and aggravation of the wickedness ; secondly, their opinion as to the degree of support they will find in the community, if they attempt to defeat that wicked intention.
Take the case of slavery for example. Suppose that in a slave-holding community the question of the legality of slavery is raised, and certain legislative acts are quoted to sustain it. If the court should happen to entertain the opinions professed by Mr. Calhoun, that slavery is not only a blessing in itself, but the essential foundation of a republican government, of course they would see, with great facility, an intention in the quoted acts to give to slavery a legal basis. Even if they entertained the more common opinion, avowed by Mr. Clay, that slavery, though an evil in itself, is yet, under existing circumstances, a necessary evil, the only means of preserving the two races of whites and blacks from a war of extermination, they would still find no great difficulty in perceiving a legislative intention to legalize slavery. But suppose the judges have the feelings proper to men enlightened and humane ; suppose
their eyes fully open to the enormous wickedness of slavery ; suppose they saw in vivid colors all its multiplied evils and miseries, both for masters and slaves; it would be very difficult for any form of words to establish, with “ irresistible clearness," in the minds of such men, a legislative inten