gally criminal, because neither this Court nor any other can carry its private apprehensions, independent of law, into its public judgments, on the quality of actions. It must conform to the judgment of the law upon that subject, and acting as a Court, in the administration of law, it cannot attribute criminality to an act where the law imputes none. It must look to the legal standard of morality on a question of this nature."— 2 Dodson, Adm. Rep. p. 210. C. Justice Marshall says, in a similar case:

*

* *

"That it (the Slave-Trade) is contrary to the law of nature, will scarcely be denied. Whatever might be the answer of a moralist to this question, a jurist must seek its legal solution in those principles of action which are sanctioned by the usages, the national acts, and the general assent of the world, of which he considers himself a part. A jurist could not say that a practice thus supported was illegal.' Antelope, 10 Wheaton, p. 66.

* *

See, also Lord Mansfield, 1 T. R., 313: Judge Story, 1 Gall., 66: Judges Best and Bayley, 3 B. & A., 353: Lord Hardwick, Dwarris, 785: C. J. Shaw in the "Med. Case," 18 Pick. Rep., 193: Dwarris, 645: Blackstone, 4. 11: Madison, cited in Story's Comm., 3. 422: Amos' Fortescue, 198–200: 8 Wheaton, 543: 4 Howard, 572: 2 Howard, 197: 8 Bingh., 515, 557: 1 Kent, 468.

I know that there are a few early cases, and a few rash assertions of Lord Coke, plausible perhaps in a Government like the English, where, as there exists no written Constitution, it might possibly be argued that the courts had a right to bring all laws to the test of those great principles of common sense and common justice, which form the only thing that can be called a foundation for British law. But here we have a specific, definite, limited, written Constitution. It contains ALL the principles which the people, the nation, have agreed shall form the foundation of our national law. The only test, therefore, to which our courts have any right to submit the action of the Legislature is, to ask, is it constitutional? If so, it is legally binding on them no matter how unjust or how unreason

able it is. Such is the frame-work of Government under which we live.

But of even this assertion of Coke, Lord Chancellor Ellesmere, his contemporary, has remarked, that it is,

"A paradox which derogateth much from the wisdom and power of Parliament, that when the three estates, King, Lords, and Commons, have spent their labor in making a law, three Judges on the bench, shall destroy and prostrate their pains, advancing the reason of a particular court above the judgment of all the realm. Besides, more temperately did that reverend Chief Justice Herle, temp. Ed. III. deliver his opinion, cited by Coke, 8 R. 118.

when he said, some acts of Parliament are made against law and right, which THEY THAT MADE THEM, perceiving, would not put them into execution; for it is magis congruum (more fit) that acts of Parliament should be corrected by the same pen that drew them, than be dashed to pieces by the opinion of a few Judges." - Quoted by Dwarris, p. 643.

And further, still, Lord Coke qualifies the general language he had used when he elsewhere holds:

"That Judges are not to be encouraged to direct their conduct by the crooked cord of discretion, but by the golden metwand of the law; that is, not to construe statutes by equity, but to collect the sense of the Legislature by a sound interpretation of its language according to reason and grammatical correctness, and to be controlled by the common law." - Dwarris on Statutes, pp. 645, 703.

Dwarris, a learned and distinguished writer, in his late able work Statutes," sums up the matter thus:

on "

"The general and received doctrine certainly is, that an act of Parliament, of which the terms are explicit and the meaning plain, cannot be questioned, or its authority controlled in any Court of Justice," and "where the meaning is plain, to regard consequences in the interpretation, would be assuming legislative authority."

For Judges to mould statutes according to their sense of right would suppose the Legislature,

“To have abdicated its functions and delegated its power and duties to the Judges." ―pp. 646, 720, 755.

To detain the reader one moment longer with the example of another nation, let us add that the French law, generally considered much more loose on this point of judicial duty, is substantially the same with what we have been quoting. It allows the Bench to consult equity and use its individual discretion only on those points where the law is silent.

"Si l'on manque de loi il faut consulter l'usage ou l'equité. L'equité est le retour a la loi naturelle, dans le silence, l'opposition ou l'obscuritè des lois positives."

"Le pouvoir judiciaire etabli pour appliquer les lois, a besoin d'etre dirigé dans cette application par certaines regles. Elles sont telles que la raison particuliere d'aucun homme ne puisse jamais prévaloir sur la loi, raison publique."

(Where there is no law, consult custom or equity. Equity is the return to natural law in case of the silence, self-contradiction, or obscurity of statutes. Judges appointed to apply the laws, must be guided by fixed rules. These

are such that the conscience of an individual can never be allowed to overrule the law, which is the national conscience.) Quoted by Dwarris, p. 7787.8.

Are we not, then, borne out in our assertion that neither any practical theory of Government, nor the recorded opinions of Statesmen or Jurists countenance the doctrine of this Essay, that Judges are the proper persons to remedy, by overruling, the bad laws of a State. On the contrary all combine to point us to the duty of submission, or to the ultimate and extreme right of Revolution, as the appropriate course in the circumstances; and allow the Judge no choice but to apply the laws, as they are handed him by the Supreme Power, or to vacate his seat.

Indeed the most famous definition of Civil Liberty makes it consist in the "being governed only by known, pre-constituted, inflexible rules." What becomes of this if the decisions of the Court are to vary as fast as the moral sense of the Bench rises higher and higher in its perception of right and wrong? On this plan justice becomes as much "matter of accident," as Madame de Stael told Alexander Liberty was, under a despotism. To Mr. Spooner's doctrine we may apply what was said on another occasion :

"If these principles prevail there are no longer any Pyrenees. Every bulwark and barrier of the Constitution is broken down; it becomes tabula rasa, carte blanche, for every one to scribble on what he pleases."

MR. SPOONER'S ARGUMENT.

LEAVING the question whether Law, properly speaking, can estabish Slavery, Mr. Spooner next attempts to show

that it has never

For this purpose

actually been established by law in this country. he examines the written Constitutions of the several States and of the Union.

“In making this examination, [ he says, p. 15,] I shall not insist upon the principle of the preceding chapter, that there can be no law contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed 'strictly' in favor of natural right. The rule is laid down by the Supreme Court in the United States in these words, to wit: 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.' '"'— 2 Cranch, p. 390.

The following are the clauses in the United States Constitution universally supposed to refer to and recognize Slavery:

"ART. I. SEC. 2. Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.

ART. I. SEC. 8. Congress shall have power * * to suppress in

surrections.

ART. I. SEC. 9. The migration or importation of such persons, as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

ART. IV. SEC. 2. No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

ART. IV. SEC. 4. The United States shall guarantee to every State in this Union a republican form of government; and shall protect each of them against invasion; and, on application of the Legislature, or of the Executive, (when the Legislature cannot be convened,) against domestic violence."

The first of these clauses, relating to representation, gives to ten inhabitants of Carolina equal weight in the Government with forty inhabitants of Massachusetts, provided they are rich enough to hold fifty slaves; and accordingly confers on a slaveholding community additional political power for every slave held among them, thus tempting them to continue to uphold the system.

Its result has been, in the language of John Quincy Adams, to make the preservation, propagation, and perpetuation of Slavery the vital and animating spirit of the National Government; and again, to enable “ a knot of slaveholders to give the law and prescribe the policy of the country." So that "since 1830, Slavery, slave-breeding, and slave-trading, have formed the whole foundation of the policy of the Federal Government." The second

and the last articles relating to insurrection and domestic violence, perfectly innocent in themselves - yet being made with the fact directly in view that Slavery exists among us, do deliberately pledge the whole national force against the unhappy slave if he imitate our fathers and resist oppression, thus making us partners in the guilt of sustaining Slavery. The third is an express toleration of the Slave-trade till 1808, leaving it optional with Congress whether to abolish or not afterwards. The last clause is a promise on the part of the whole North, to return fugitive slaves to their masters; a deed which God's law expressly condemns, and which every noble feeling of our nature repudiates with loathing and contempt.

Mr. Spooner's argument may be briefly stated thus:

1st. The people never intended to recognize or guarantee Slavery in the National Constitution.

2d. If such was their intention it was never effected; for that instrument, legally interpreted, contains no recognition or guaranty of the Institution.

3d. Such recognition, if it exists, is void, and wholly inoperative, since there is no legal Slavery in any of the States to which it can refer.

In our review we shall follow the order thus briefly sketched, rather than the one adopted by Mr. Spooner, as it will enable us to say all we wish in a smaller space.

INTENTIONS OF THE PEOPLE.

AND first, the intentions of the people. It is very convenient. for Mr. Spooner to make light of the meaning which the people attached to the Constitution in 1789, and since, as of no practical value; though he is ready to allow that the intentions of the adopters of the Constitution when legally shown from the Instrument itself, taken as a whole, are binding and conclusive. It is a point we can afford to spare, this of the meaning affixed to the Instrument by the people themselves. We are perfectly willing at any time to waive it and discuss the strict legal effect of the written Instrument, without aid from collateral history or national circumstances. But it is idle in an argument of this kind to keep out of sight a view which common sense, the nature of the case, and the