Lysander Spooner, Poverty: Its Illegal Causes and Legal Cures. Boston: Bela Marsh, No. 25 Cornhill. 1846.
SOCIAL, MORAL, INTELLECTUAL, AND POLITICAL RESULTS FROM THE PRECEDING PROPOSITIONS.
Social Results. To appreciate, in some measure, the important social influences of the preceding propositions, it is only necessary to consider that that portion of human virtue, which consists in one's doing good to others than himself, depends almost entirely upon sympathy-upon one's susceptibility of being affected by the feelings of others; and that this sympathy, or susceptibility, is mostly, if not wholly, the result of his having had, in some measure, a similar experience with others, or of his having had social relations with them. Thus those who have been sick, sympathize with the sick; the sorrowful sympathize with the sorrowful; the merry with the merry; the rich sympathize with the rich; the poor with the poor; the learned with the learned; the vicious with the vicious; kings with kings; slaves with slaves; amid all men more or less with their immediate personal acquaintances. And it is from the sympathy, thus excited by personal intercourse, or by a similarity of experience, that much, perhaps most of the kindness, shown by one human being towards another, results. On the other humid, much of the indifference, or want of kindness, manifested by one man towards another, is the natural result of his having had little or no similar experience, or little or no personal acquaintance with him. Thus kings sympathize little with the people, and the people little with kings; slaves sympathize little with masters, and masters little with slaves; the rich sympathize little with the poor, and the poor little with the rich; and few sympathize much with strangers.4.
So again, most, or all, of the hatred and injustice, felt and practised by one man towards another, results from the fact, that the points of collision in men's characters and interests are not rounded, and smoothed, and softened by the kindly influences of sympathy and acquaintance. Much of the hatred existing among mankind is the hatred of class against class-of classes against other classes, with whom they have little personal acquaintance, or little common experience. The rich do not hate the rich, as a class; nor the poor, the poor. But the rich hate and despise the poor, and the poor hate and envy the rich; and it is solely, or principally, because these two classes have not sufficient personal acquaintance, and sufficient similarity of experience with each other, to awaken their sympathies, and thins soften or avert the collision of their feelings, interests, and rights~ Thus the rich will often defraud, oppress, amid insult the poor, and the poor defraud and commit violence upon the rich, with less compunction than the same individuals would have defrauded, injured, or insulted one of their own number. And every man, who will defraud others at all, will more willingly defraud a stranger thin an acquaintance.
Such being the laws of men's minds, and such the conditions on which so large a portion of men's virtue towards each other depends, it is obviously a matter of the highest social importance, that men-so far as it can be effected without infringing their individual liberties and rights- should occupy such situations amid circumstances relatively to each other, as will promote the widest personal acquaintance, and the nearest similarity of experience among them all. To the accomplishment of this end, perhaps nothing is more conducive or indispensable, than an approximation to equality in their pecuniary conditions. Extremes of difference, in their pecuniary circumstances, divide society into castes;
set up barriers to personal acquaintance; prevent or suppress sympathy; give to different individuals a widely different experience, and thus become the fertile source of alienation, contempt, envy, hatred, and wrong. But give to each man all the fruits of his own labor, and a comparative equality with others in his pecuniary condition, and caste is broken down; education is given more equally to all; and the object is promoted of placing each on a social level with all: of introducing each to the acquaintance of all; and of giving to each the greatest amount of that experience, whelm, being common to all, enables him to sympathize with all, and insures to himself the sympathy of all. And thus the social virtues of mankind would be greatly increased.
Moral Results. Important moral results, other than those already mentioned as social, would be accomplished by carrying into operation the principles that have been set forth in the preceding propositions. To be convinced of this, we have only to look at all the criminal and vicious individuals in the community, and see how many of their crimes and vices calm be traced either to their superabundant wealth, their extreme poverty, their desire for wealth, or their fear of poverty.
1. Those grosser offences against the rights of property, that are punishable by society as crimes, such as theft, robbery, forgery, and swindling, result, not from the love of crime, but almost without exception from one or another of these three sources, viz., the sufferings of actual poverty; the fear of coming poverty; or a desire for those luxurious displays amid indulgences, which the perpetrators see to be enjoyed by the possessors of wealth. And all these motives to crime are aggravated, and individuals are often goaded to recklessness and audacity by that hatred of society, and that sense of outrage and wrong, which result from the observation of those gross inequalities of condition, those extremes of poverty and wealth, which are brought about by that monopolizing and iniquitous legislation, which, while it deprives the many of their natural right to obtain capital on which to labor, and of their natural right to all the fruits of their labor, arbitrarily gives to the few the command of all the loanable capital, and consequently the control, and a large part of the fruits of other men's labor.
But if the principles of the preceding chapters were administered as law, the crimes resulting from these sources would mostly disappear. The causes now impelling to the coin-mission of them would rarely exist. Nearly every man would be able to control his own labor, and secure to himself the whole of its fruits, (except what lie should pay as interest on his capital;) amid these would save him from that extreme poverty which instigates to crime. Monopolies also being broken down, there would be little or no great wealth, in the hands of single individuals, to excite his envy, or his desire for luxury and display. He would be able, without crime, to maintain a position near enough to the general level of society to save him from the temptation to crime.
2. Those innumerable frauds that pervade every department of traffic, hut are not of that tangible character that can be proved and punished by society, result, in an important portion of the cases, from a fear of poverty, and, in another important portion, from a desire of that superior wealth, which the few acquire by means of monopolizing legislation, and which constitutes one of the principal distinctions of society. But if the propositions, advocated in the preceding chapters, were carried into effect, the motives to these frauds would be, in a great measure, extinguished; because, 1, there would be no such liability to extreme poverty as now; and 2, there being then few or no great fortunes in society, but, on the contrary, a somewhat general equality in wealth, large fortunes would not, as now, constitute the foundation for castes and distinctions; consequently they would not be objects of such general ambition as now; and, of course, would not prompt men, so often as now, to the commission of frauds for the sake of obtaining them. Neither would the possession of them, when acquired by fraud, be such a salve to a man's character, as now. Wealth is now such a mark of distinction and honor, that society palliate, if they do not justify, almost any measure, short of open crime, to secure it. But under a system, where every man could easily obtain capital, on which to labor, and could have all the fruits of his labor; and where there was such a general equality of wealth as would necessarily result from those two causes, there would be no caste or distinction founded on wealth; superior wealth would not be at all necessary to give one reputation; all men, as a general rule, could honestly obtain all the wealth that would be necessary to their respectability; and they would have little temptation, as now, to forfeit their character for integrity, for the sake of acquiring a degree of wealth that would give them no marked importance in society.
It is manifest also that the present precariousness of men's pecuniary condition is a great provocative to injustice and fraud. It is not natural to mankind to desire to defraud or injure each other. But the wheel of fortune, iii the present state of timings, is of such enormous diameter; those on its top are on so showy a height; and those underneath it are in such a pit of debt, oppression, and despair; and its revolutions are so rapid, unsteady, and convulsive, that it is no subject of wonder that those on its sides should feel compelled, by the necessity of self-preservation, to jostle and cheat each other out of their footing, in order no seize a secure one for themselves. But under the system proposed, fortune could hardly be represented by a wheel; for it would present no such height, no such depth, no such irregularity of motion, as now. It should rather be represented by an extended surface, varied somewhat by inequalities, but still exhibiting a general level, affording a safe position for all, and creating no necessity, for either force or fraud, on the part of any one, to enable him to secure his standing.
3. Intemperance is another of the vices attendant upon superabundant wealth, and extreme poverty. The rich often become luxurious, gluttonous, and drunken, apparently because life hangs heavy on their hands. Being relieved from the necessity to labor, they feel little motive to that healthful industry, which is the companion and guardian of temperance; and their minds having been starved while they were engaged in hoarding their wealth, they are now incapable of intellectual pursuits, and have little or no resource against ennui but in animal indulgences. On the other hand, the intemperance of the poor is the natural consequence of the extremities of their condition. The excitement, or the stupor of intoxication, brings at least a temporary relief from the anxieties that harass and unsettle their minds, and drive them to desperation.
4. Gambling also naturally results from too much wealth, and too severe poverty. The rich gamble for excitement, and because they can afford, or think they can afford the risks. The poor gamble in the hope of gain-tempted by the prospect of fleecing the rich, or driven to it by the hopelessness of their own condition.
5. Lewdness-the destroying vice of society-is enormously increased, if not mainly supported, by the precariousness and the inequality of men's pecuniary condition. The rich become lustful and libidinous from idleness and luxury, and their wealth enables them to purchase the gratification of their desires. The poor become reckless from want, or from envy of the rich; and sell their virtue for bread, or for the means of display. Purity dwells with moderate competence, with the simple board, with the modest garb, and with cheerful industry.
The ruin of the young, particularly of young females, is mostly accomplished by means of their absence from home. They are generally safe in their father's house. But the same want of capital that compels a poor man to sell his own labor, compels him also to sell the Labor of his children and to send them, in their youth, beyond his own roof or farm, to occupy some menial situation in a rich man's service, where toil, oppression, insult, neglect, amid loud ness are their lot; where few or no kind counsels meet their ears; where no friendly eye watches over their ways, and no guardian hand protects them from the dangers that crowd around them. What armies of the youth of both sexes arc annually driven, by poverty, from the parental roof, and parental care, to seek menial employment iii manufacturing and commercial towns, and to fall sacrifices to their own inexperience, and the enticements of the libertines that swarm in such places.
If every man could obtain the capital necessary to employ his own hands and the hands of his family, children would be reared at home much more generally than now. It would rarely be necessary for daughters to go abroad for employment; and never to occupy servile and degraded situations as now. And if daughters only were to be reared uniformly at home, society would be pure compared with what it is now. It would often be necessary for sons to go from home to learn sonic different calling from that followed by their fathers; but they would not be driven from home by poverty. And not being driven from home by poverty, they would not be driven into servile and degraded situations, where their loneliness and misery would urge them into vice. As there would then be no such extremes of poverty and wealth, as now, a son heaving his father's house for employment, would not leave an abode of want to become a menial in the mansion of the rich; he would merely leave one comfortable and virtuous home for another of like character, In a family situated in pecuniary respects much like his own, and In which he would be an equal and respected, perhaps cherished member, instead of a menial and an outcast. In such a situation his morals would be much more safe than when driven by poverty into a servile and lonely condition, where he would meet no sympathy from the family with which he lived, and find no virtuous companionship to keep him from vice.
That general equality of condition, and that pecuniary independence, which should enable parents always to roar their children at home, or which should merely save them from the necessity of placing them abroad, except in situations and families where the want of parental kindness and watchfulness would be, in sonic good measure, supplied to them, would save almost countless multitudes of the youth of both sexes from the ruin that now overtakes the neglected and outcast children of poverty.
But the system proposed would promote chastity In still another, and perhaps even more effectual way, to wit, by making marriage nearly universal, and by inducing it in early life. Celibacy is the great cause of licentiousness. If all men were to be married in early life, there would be very little libertinism-for although libertinism now invades married life, it does not originate there. Its principal source is in the unnatural and solitary state of large numbers of both sexes. The sexes are so nearly equal in number that if all of either sex were married, there would not, be enough of the other left unmarried to give rise to any general profligacy.
The desire of matrimony is so strong and universal, amid manifests itself so early in life, that nearly all would be married at an early age, if their pecuniary circumstances would admit of it. The causes, of a pecuniary nature, that prevent universal and early marriages, are these:
1. Young men cannot establish themselves in business of their own, immediately on attaining their majority, because they cannot obtain capital on which to employ their labor. Until they can obtain capital, and thus establish themselves, they do not wish to marry, because their station in society will not be agreeable, or because their income, while laboring for others, will not give them a sufficient support. But if freedom in banking, and freedom in the rate of interest, and the prior right of the prior creditor to the property of the debtor, were recognized as law, there would be no difficulty in a young man's borrowing capital enough to employ his own hands upon; and his being married would improve, instead of injuring his chance of obtaining it; because his being married would afford his creditor an additional guaranty for his industry, economy, and morality. Other things being equal, a married man can always obtain both credit and employment, in preference to an unmarried one.
2. Men's fortunes, in the present state of things, are so precarious-there is so much danger that a man, who is in comfortable circumstances to-day, may, by sonic of the hazards of trade, lose his property to-morrow; and not only lose it, but be left with a debt upon him, which will be a charge upon his future earnings, and an obstacle in the way of his borrowing the capital necessary to make his industry lucrative-there are so many dangers of this kind, that a prudent man dare not marry until he has accumulated, as he thinks, property enough to protect him, to some reasonable extent, against the chances of misfortune, lie therefore lives unmarried for years solely to make this accumulation. But if the obligation of debts attached only to the property that a man should have when his debt should become due, and not to his earnings afterwards, so that he should always acquit himself of his debts by paying to the extent of his means, this danger of being overwhelmed in debt and consequent poverty, would be removed. He would know that he could always be at least a free man, if not a rich one; and that he could always be sure at least of his earnings for the support of his family; and that. if he could get capital, (as he could under the system proposed,) sufficient to employ his own hands upon, he could always support them in a condition of respectability.
3.A third motive, with many persons, for postponing matrimony, is the desire of first accumulating sufficient wealth to enable them to maintain a domestic establishment of such elegance and cost as will bring them within the caste or circle distinguished by wealth and display. But if the system proposed were carried into effect, it would produce such a comparative equality in men's conditions, that there would be no rank or caste founded on such distinctions; amid thus this motive to the postponement of marriage would lie removed.
Thus the various motives, of a pecuniary nature, which now operate to dissuade or deter men from early matrimony, would he, in a great measure, removed by the system proposed; and the morals of society would be very greatly purified by the change.
Under the present system, we see society agitated by the efforts of individuals, associations, and of society at large, to check the several crimes, frauds, and vices, that have now been enumerated, amid that seem sometimes to threaten all human virtue. Legislatures, courts, prisons, churches, schools, and moral associations of all sorts, are sustained at an immense cost of time, labor, talent, and money. Yet they only mitigate, they do not cure the disease. And like all other efforts to cure diseases, without removing the cause, they must always be inadequate to the end in view. The causes of vice, fraud, and crime, to wit, excessive wealth amid excessive poverty, must be removed, before society can be greatly changed. Just in proportion, or very nearly in proportion, as these causes are removed, will the ignorance, the vices, the frauds, and the crimes of all sorts naturally resulting from them, disappear.
Intellectual Results. The intellectual advancement of society would be immensely promoted by the adoption of the system proposed. To be convinced of this, we have only to consider the following facts:
1. The mental independence of each individual would be greatly promoted by his pecuniary independence. Freedom of thought, and the free utterance of thought, are, to a great degree, suppressed, on the part of a large portion of the poem in all countries, by their dependence upon the will amid favor of others, for that employment by which they must obtain their daily bread. They dare not investigate, or if they investigate, dare not freely avow amid advocate those moral, social, religious, political, and economical truths, which alone calm rescue them from their degradation, lest they should thereby sacrifice their bread by stirring the jealousy of those out whom they are dependent, amid who derive their power, wealth, and consequence front the ignorance and servitude of the poor.
2. The mass of the poor in all countries have but little leisure, or means, or opportunity for intellectual cultivation. Wherever capital is in the hands of the few, the competition for employment among laborers becomes so great as to reduce the price of labor to a sum that will give the laborer but a mean and wretched subsistence in return lot- the severest toil of which his body is capable. Under these circumstances, intellectual culture, to any considerable extent, becomes impossibility. Even the desire of it is in a great measure crushed, and but feebly animates the breast of the mass of them. Their thoughts are confined, by the pressure of their physical necessities, almost wholly to the questions of what they shah eat, and how they shall live.
When it is considered how large a portion of the human race have in all ages been thins condemned, by extreme poverty, to an almost brutish and merely animal existence; that their minds were, nevertheless, naturally susceptible of the same cultivation amid development as those other minds that have been cultivated and developed; that they needed, for their growth, but such an opportunity as all might have enjoyed, if each man could have controlled his own labor, and possessed its fruits; that their intellects, thus enlightened, would have contributed their share, equally with others, to the general progress of knowledge; that among them must have been a due proportion of superior minds, capable of becoming discoverers in science, inventors in the arts, amid teachers in morals, religion, and law; when we consider these facts, we cannot entirely shut out the idea, although we can form no adequate idea, of what the world might now have been, if so large a portion of its intellectual light had not been thus needlessly and wickedly extinguished.
3. The system proposed would speedily result in the universal education of children. The universal education of children can, in the future of things, never be accomplished except through the universal ability of parents to provide the means of educating their own children respectively. In some snail portions of the most civilized parts of the world, educational systems have been established, which give knowledge to the children of the poor, at the public expense. Yet under these systems children are but partially and poorly educated, in comparison with what they would be, if all parents were able to meet the necessary expenses of educating their own children. These systems too, defective and inadequate as they are, prevail in but small districts of the world; and if extended at all, can be extended but slowly. Moreover they arc but the unnatural and forced productions of an unnatural state of society, consequent on the unnatural distribution of wealth. They merely constitute one of the remedies, by which government attempts to mitigate the evils of its own injustice, to wit, the evils of that monopolizing legislation, by which they keep capital in the hands of the few; deprive the many of their right to labor independently for themselves; rob them of the fruits of their labor; and thus render it impossible for them to educate their children. Such being the character of public systems of education, their perpetuity cannot be relied on; nor can it even be advocated, except on the supposition that a large, or at least somewhat considerable, portion of the people are always (cm remain too poor to educate their own offspring. And if they cannot be relied on as permanent institutions where they already exist, still less can they be looked to as the means by which the world at large is over to be universally educated. The universal education of children can, in the nature of things, never come from any other source then the universal ability of parents to provide for their education. And this universal ability of parents can come from no other sources than their liberty to labor; their liberty to borrow capital on which to labor; and their liberty thus to secure to themselves all the legitimate fruits of their labor.
4. The intellect of society would be much better directed, tinder the system proposed, than under any that has ever existed. It would be directed more to the service and improvement of man, as man; and less to the aggrandizement of one portion of mankind, at the expense of the other portions, than it is, or ever has been under system where wealth and power are distributed by arbitrary, instead of natural and equal laws. This system would present no such great prizes, either of wealth or power, as are presented by existing systems, to tempt the avarice and ambition of those stronger minds, that have great capacities for both good and evil, and that generally follow good or evil according to the respective influences of each upon their own elevation. The system proposed would bring such men down very nearly to the same social, political, and pecuniary level with the mass of men; and place entirely beyond their reach and their hopes those great fortunes, and that great political power, which can now be obtained, and which can only be obtained, by moans of those arbitrary political arrangements that produce a corresponding poverty and subjection on the part of the masses.
So long as society, or its institutions, offer a few great prizes, either of wealth or power, for the acquisition of any one, so long many of the more powerful minds will be engrossed in the pursuit of (item. Unable to obtain them, (inasmuch as they are in their nature unattainable,) consistently with the equal rights of all, they will propose to secure them by sacrificing the rights of a part, and sharing the spoils with their adherents, by means of partial and monopolizing legislation. Thus their contests with each other will be made to involve the interests, welfare, and rights of every other titan-for every other man is to be made either a victim or a beneficiary of some one or more of the various schemes proposed by the different competitors. Thus nearly every individual mind in the community becomes occupied, necessarily occupied, as a party interested, on one side or the other, in these strifes, where power and plunder are the objects of the assailants, and defence and retaliation the objects of the assailed. Such contests not only necessarily suspend, to a great degree, all those labors and studies that really advance man as an intellectual and moral being, or promote the impartial welfare of the race, but they actually divert a vast mass of mind into pursuits - of monopoly and war - that have for their objects, injury amid destruction to mankind at large. Much of the intellect of society, tinder such circumstances, is not merely wasted, as regards purposes really beneficial to all mankind; it is worse than wasted; it is exerted for purposes of positive detriment and injury.
Such selfish, absorbing, and destructive agitations could evidently find no place under institutions, which, instead of offering dazzling prizes to the few, should, on the contrary, secure to each individual, without discrimination, the full enjoyment of his right to labor, to hire capital on which to labor, and to hold all the legitimate fruits of his labor. The mass of men, under such circumstances, could not be withdrawn from the quiet enjoyment of their just and natural rights, and the pursuit of their highest interests, to enlist, as they now do, as mercenaries under the lead of ambitious, rapacious, and unprincipled men, or to lend themselves as tools iii their iniquitous enterprises of avarice and aggrandizement. Ambition, therefore, for want of troops, if for no other reason, would be obliged to abandon its war upon the equal rights of men; and to apply itself to achievements that promise good, instead of evil, to man in the aggregate. Thus preeminent minds, that are now employed and exhausted in the projection and execution of great plans of rapacity and power, in fierce struggles for the elevation of the few, and the corresponding prostration of the many, would be driven, by a sort of moral necessity, to seek more peaceful employments. And these other employments would generally be of such philosophical, scientific, or literary kinds, as active minds delight in, and such as conduce to the physical, intellectual, or moral advancement of the human family at large. And mankind at large, being thus relieved from many of those turbulent collisions, which now inflame their passions, and pervert their judgments, and having more leisure and quiet for intellectual pursuits, would rapidly acquire a more humane and intellectual character.
Political Results. If the several propositions stated in chapter second, were recognized as law, and if their effects upon the pecuniary conditions of men should be such as it is here claimed they would be, the only true and rightful ends of all political institutions, so far as they relate to man's pecuniary conditions, would seem to be very 8nearly accomplished. For what rightful objects have political institutions, in reference to pecuniary matters, beyond that of securing to each individual the free exercise of his natural right to acquire all he can by honest and moral means, and of his right to the control and disposition of all his honest acquisition's Each man has the natural right to acquire all he honestly can, and to enjoy and dispose of all that hue honestly acquires; and the protection of these rights is all that any one has a right to ask of government in relation to them. It is all that he can have, consistently with the equal rights of others. If government give any individual more than this, it can do it only by taking it from others. It, therefore, in doing so, only robs one of a portion of his natural, just, and equal rights, in order to give to another more than his natural, just, and equal rights. To do this, is of the very essence of tyranny. And whether it be done by majorities, or minorities, by the sword, the statute, or the judicial decision, it is equally and purely usurpation, despotism, and oppression.
Labor is one of the means, which every man has a natural right to employ for the acquisition of property. But in order that a man may enjoy his natural right to labor, and to acquire all the property that lie honestly can by it, it is indispensable that he enjoy fully and freely his natural right to make contracts; for it is only by contract that he can procure capital on which to bestow his labor. And in order that he may obtain capital of the best possible terms, it is indispensable that his natural right of contract be entirely mm restricted by any arbitrary legislation; also that all the contracts hue makes he held obligatory fully to the extent, and only to the extent, to which, according to natural law, they calm be binding.
But nearly all the positive legislation, that has ever been had in this country, either on the part of the general or state governments, touching man's right to labor, or their right to the fruits of their labor, or their rights of contract-whether such legislation has had reference directly to banks and banking, to the rates of interest, to insolvency and bankruptcy, to the distribution of the debtor's effects among his creditors, or to the obligation or enforcement of contracts - nearly all has been merely an attempt to substitute arbitrary for natural laws; to abolish men's natural rights of labor, property, and contract, and in their place establish monopolies and privileges; to create extremes in both wealth and poverty; to obliterate the eternal laws of justice and right, and set up the naked will of avarice and power; in short, to rob one portion of mankind of their labor, or the fruits of their labor, and give the plunder to the other portion.
Some of this legislation has probably been the result of art ignorance of natural law; but very much of it has undoubtedly been the result of deliberate design.
The system proposed would take men's pecuniary interests, in a great measure, out of the hands of the legislative branch of the government, and leave them to rest import immutable principles of natural law, to be ascertained by the judiciary. If this were accomplished, the "natural, inherent, and inalienable right of individuals to acquire, possess, and dispose of property," would then have at least a semblance of reality in actual life; and would cease to be treated, as it now is, as a mere privilege to be enlarged, contracted, or utterly withholden, as those who administer the government may arbitrarily dictate. But so long as this right is admitted to he a subject of arbitrary legislation, so long it will be perpetually infringed, invaded, and denied, by innumerable legislative devices of the cunning arid the strong, which a large portion of society, the ignorant, the weak, and the poor, can neither ferret out, nor resist.
If the judiciary should assert and maintain, (as they are constitutionally bound to do,) the natural right of all men to acquire, possess, and dispose of property, in accordance with the principles of natural law, they would do such a deed for freedom, humanity, and right, as has never yet been done since government was instituted. And why do they not do it? Many, if not all our state constitutions declare, either in form or substance, that "the right to acquire, possess, timid dispose of property, is a natural, inherent, amid inalienable right." The legal authority of this constitutional declaration, is to prohibit and annul all legislative enactments whatsoever, that would infringe the right of any individual to acquire and dispose of property on the principles of natural law. This principle may not, perhaps, be distinctly asserted in all our state constitutions; but it is, nevertheless, everywhere law; law, by an Infinitely higher authority than constitutions and statutes. The right, (whether practically acknowledged, or not,) is an "inherent, essential, inalienable right" of human nature: it is the natural and necessary right of providing for one's own subsistence; and can no Immure be surrendered to government, (which is but an association of individuals,) than to a single individual. It is, therefore, in the nature of things, impossible that any government can have the right, (however it may have the power,) to infringe it. Why, then, do not the judiciary sustain this principle, and annul all the arbitrary legislation against banking? against particular rates of interest? and all the other legislation, by which individuals are deprived of their natural right to make contracts, naturally lawful, for the acquisition and disposal of property? and by which a few monopolists are enabled to control so large a portion of the labor and capital of the community? Is the reason to be found in their ignorance? their cowardice? their bigotry? or in their corrupt subserviency to the other departments of the government, from whom they receive their appointments and salaries, and to whom alone they are made amenable for their conduct?
Were the judiciary to assert this principle, (that is, the natural right of men to make all contracts, that are in their nature lawful, for the acquisition amid disposal of property,) amid carry it out in all its ramifications, as they are morally amid legally bound to do, government would no longer be, what it now, to a great extent, everywhere is, an organized system of plunder, usurpation, and tyranny, by which the intelligent, the rapacious, and the strong continually prey upon the ignorant, the weak, and the poor.5
Should the judiciary ever take this ground, government will then be reduced to a very simple and harmless affair, in comparison with what it now is. All those innumerable, arbitrary, conflicting, and over changing legislative enactments, which annually come upon us like visitations from some incarnated spirit of anarchy amid injustice, to elevate, depress, and change the relative values of different kinds of property, (thereby putting into one set of pockets fortunes taken from others,) and to enlarge, diminish, and deny men's natural and equal rights of acquiring their subsistence, will then give place to judicial decisions founded upon the unchanging principles of natural law, and affecting uniformly the rights of all ; and to a few simple legislative provisions for carrying these decisions into effect.
No reasonable objection can be made to this doctrine on the ground that natural law, in its application to all possible cases, is not already fully and absolutely known. If it he not, in any particular case, known, that is only a reason why it should be sought after, and ascertained, (by the proper tribunal, the judiciary;) and not why it should be arbitrarily set at defiance where it is plain and palpable. The truths of mathematics are not fully known in their application to all possible cases; yet is that any reason why they should not be adhered to so far as they are known, or can be ascertained? Is it any reason why the ruling power of a state should innovate upon mathematical principles by legislation, and enact that three and four shall be counted as fifteen, and eight and six as forty; and that the amount of men's dimes to each other shall be determined by such processes as these? As much reason would there be in such a procedure, as there is in legislatures attempting to prescribe men's rights of property, or their rights to the acquisition of property, in defiance of the principles of natural law. Natural law is the science of men's rights, as mathematics is the science of numbers and quantities. It is impossible, in the nature of things, that men can have any rights, (either of person or property,) in violation of natural law-for natural law is justice itself. And justice is a science, to be learned; not an arbitrary rule, to be made. The nature of justice can no more be altered by legislation, than the nature of numbers can be altered by the same means.
Natural law, in regard to all human rights, is capable of being ascertained with nearly absolute certainty. There are no Gordian knots in it, that must be cut by legislation. It has been said with very great reason, and probably with entire truth, that nothing approaches so near the certainty of mathematics, as the reasonings of the law. Sir William Jones, a man preeminently learned in the laws of different nations, ancient and modern, says, "It is pleasing to remark the similarity, or rather identity, of those conclusions, which pure unbiased reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions."6
The science of justice, then, is, in its nature, certain; and its truths are susceptible of being ascertained, to a very great extent, as absolutely as any other truths of an abstract nature. We have also, in this country, greater facilities for progress in the science of the law, (if law were suffered to rest on natural principles,) than in any other country. Individual rights, the only basis of natural law, are already acknowledged to a greater extent here than elsewhere. We have also a large number of separate states, each having aim independent judicature. The decisions of these separate courts are continually coming under examination in all the others. If an error is committed by one of them, through want of investigation, or any other cause, the same question, when it arises in the others, is independently and more thoroughly scrutinized, and thus the truth is nearly certain to be ascertained. The science of the law, therefore, but for that legislation which innovates upon it, and sets all natural principles at defiance, would be carried further towards perfection in this country than it ever has been elsewhere.
If, however, the arbitrary commands of legislative bodies are bettor standards of right, than the everlasting principles of justice and natural law, why are not the former substituted for the latter in all cases whatsoever? Why do not legislatures make thorough work in demolishing, obliterating, and erasing everything like natural right? We have still, nearly whole branches of law, on which legislation has not yet dared to lay its Vandal hand. Why are they spared? Is it because the utter extinction of justice would defeat the purposes of rapacity itself, by not allowing men to produce enough to be worth the robbing? Or is it because knowledge, and consequent power, have at length become so far diffused among the mass of mankind, that no very considerable portion of them can now be reduced by the others to unqualified servitude?
4. There is, of course, some sympathy between all men, for a common nature compels it; but it is not quick or strong between opposite classes or strangers, as it is between similar classes and acquaintances. Return
5. The judiciary probably would assert this principle, In this country, (and under a system of universal suffrage they would be sustained In doing it,) were it not that, by our constitutions, they are placed, in a great measure, beyond the reach of either the approbation or censure of the people at large, and made dependent upon, and the mere creatures of, the very departments, whose usurpations they are, in theory, designed to restrain. They receive their offices and salaries from, and are made amenable by impeachment solely to the other departments; and, as might be expected, they servilely and corruptly sustain all their arbitrary measures, in defiance of all the moral and constitutional obligations they are really under in the premises.
Although the natural rights of all men to acquire, possess, and dispose of property— which, of course, involves the right to make all the contracts, naturally lawful, by which property may be acquired or disposed of—is so clearly announced in most of our constitutions; although, as a principle of natural law, it is too manifest to be doubted, or denied; although It Is a right, in its nature vital to the well being, and even to the self—preservation of every man; and although all our statute looks abound with enactments, infringing, denying, or withholding this right, on the part of a greater or less portion of the people; it is nevertheless hardly probable that a single one of all these thousand enactments has ever yet encountered the veto of the judiciary. What a sickening proof this, of the degradation, corruption, and servility of that branch of the government which holds all our rights in, its hands.
The judiciary should be made entirely independent of the executive and legislative branches of the government. They should neither receive their appointments nor salaries from them; nor be amenable to them by impeachment. We might then hope that they would act as a check upon their usurpations, instead of acting as they generally do now, as mere pimps and panders to them, lending the covering of their sanction to hide the crimes of the legislatures from the era of the victims. Judges should he elected by the people; for short terms; their salaries should be fixed by the constitutions; and they should be amenable, by impeachment, to independent tribunals specially instituted for the purpose. They should also be separately chosen as separate periods, and by separate districts of the people — that no party however powerful in the nation, or in the state, might be able to choose the whole of the judiciary.
The judiciary is altogether the most important department of the government; or rather would be so, if it were properly constituted. Indeed, if judges were lint honest and capable, there would be very little for the legislative department to do, in regard to property, except to provide the means for carrying the decisions of the judiciary into effect. Return
6. Jones on Bailments, p. 133 Return
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