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Copy “ Col. Charles D. Miller, Dear Sir, I return you herewith the papers you sent
me. Since I saw you in Yours Truly, L. Spooner Col. Charles D. Miller Dear Sir, I have recd a letter from Mr. Smith saying
that Judge Peabody had made some advances to him on behalf of Mr. Phelps, with
a view to a settlement. It seems to be
important, that before Mr. Smith fixes his terms of settlement he should
satisfy himself fully on three points of law involved in the case – in as much
as his opinions on these points will be likely to modify very materially the
terms to which he would agree. The
points are these – 1. The
consular question If Mr. Smith should feel perfectly sure of
maintaining his suit in the State court, he will be likely to insist on harder
terms than if he should conclude that he will be obliged to sue in the My argument is not entirely done but it is so
nearly done that Mr. Smith, if he should need it, will probably be able to
satsify himself whether my opinion on the point is correct. The argument is pretty long, but I will make
a copy of it – so far as it is already written – and send it to him, if he
desires it. 2. The
liability of all the defendants, without specific proof against each one, other
than the publication of the libel with their names. This Point is important, unless you succeed
in getting direct poroof attached, and their non-repudiation of it &
against it all, which I apprehend you will not be able to do. Although Mr. Sedgwick must be much more
familiar with pleadings and evidence than I am, and although I have a very high
respect for his opinion, I confess I still have some doubt whether his opinion
on this point is correct. But I have had
no time to look at authorities , and can at this time therefore view it only in
reference to general principles. Suppose a libel be published against A.B.
charging him with robbing a bank; and the names of the president and all the
directors appear affixed to the libel. A
reasonable time elapses, and more of them repudiate the publication. Is it necessary that A.B. in order to sustain
his suit against all, should have direct proof that each and every one affixed
his signature or authorized any one to affix his signature, to the libel before
it was published. Does not his
acquiescence afterward in the criminal use of his name, imply his consent to
such se, and make him liable, the same as if he had originally consulted? A man’s name and influence are his
property. And acquiescence in the
criminal use of them by another, it seems to me, is, in law, a consent to such
use. 3. But
suppose those only one liable, who actually signed the libel, or authorized
their signatures to it. In that case,
the criminality, of those who did sign it, is made much heavier than it
otherwise would be; for they are not only libellous but they have added forged
names to the libel, to give it greater effect.
They are, then, doubly criminal and must bear a double share of
liability. One suggestion more. If Mr. Phelps is anxious for a settlement,
may it not be worth while to refuse a settlement with him, with a view of
making it necessary for him to use his influence with the others, to bring them
to a settlement? Please send a copy of this to Mr. Sedgwick if
you think it necessary or proper. Yours Truly, Lysander Spooner P.S.
If I send the argument, how shall I send it? It is too bulky to go by mail. Will the express take it to you? Dear Sir, Of the very liberal retainer you paid me –
more liberal than I should have ventured to ask, if you had left it with me to
fix the amount– so much has gone to pay debts that I have no longer any thing
left to eat. Not being in the way of
receiving any money from other sources, I think you will excuse me for asking
you to send $100 – a thing , which of course I should not expect you to do,
until the termination of the suit, if I had any other alternative. Yours Truly, L. Spooner R.B. Minturn Dear Sir, Taking great interest in the subjects on
which you have written, and judging from the description of my friend Mr. Wm.
B. Scott that I shall find much in your work with which I shall sympathize
warmly, I beg that you will forward to me (at above address) one copy of each
of your finished works. In payment I
enclose cheque of $10 – and please apply the excess toward the cost of printing
your unpublished manuscripts. Yours Truly, Rob’t B. Minturn. Lysander Spooner Esq. My dear Sir, Great occupation has prevented me from
sending an earlier acknowledgment of your __ of the 15th last. It does not seem to me that your answer meets
my point, as I do not desire to object to the first few paragraphs of section
IV, in which you bind yourself to the assertion that the principle you are
contending fro was necessarily implied by the principles asserted in the
Declaration of Independence. My objections being at the top of page 12,
where you introduce a new argument by the word Moreover, as
follows: [TYPED]
12 Moreover, it was only as separate
individuals, each acting for himself, and not as members of organized
governments, that the three millions declared their consent to be necessary to
their support of a government; and, at the same time, declared their dissent to
the support of the British Crown. The above I claim to be historically
erroneous, as the decision of each colony to join in the contemplated
Declaration of Independence was determined by a majority of its qualified
citizens, and in every case was contrary to the opinion of a minority or
majority of the inhabitants of each colony.
The Revolutionary Authorities were in fact Representatives of
Oligarchies – and they acted as such, assuming to coerce those of the community
whose opinions were adverse to the Rebellion.
It seems to me very clear that what was done at that time was very far
from being done with the unanimous consent of every citizen, either express or
implied; and that it was very distinctly doe by “organized governments” and
very tyrannical governments at that. You then go on to say that: [TYPED] The governments, then existing in the
Colonies, had no constitutional power, as governments, to declare the
separation between All of which I am quite ready to admit except
the phrase that the colonial legislature, in the revolutionary steps they took,
“acted only as so many individual revolutionists.” On the contrary I think it is clear that they
acted as representatives of the dominant faction of the individual
oligarchies by which they had been respectively chosen, and that they had
asserted the power (and claim to supremacy) of this oligarchy not merely as
against the British government, but also as against all recusants at home. It is true that in one sense they were not
constitutional authorities; but they certainly were constituted
authorities, de facto governments, asserting sovereighty for themselves
or their contsituents and claiming allegiance from all inhabitants. You next say: [TYPED] It was also, in the eye of the law, only as
separate individuals, each acting for himself, and exercising simply his
natural rights as an individual, that the people at large assented to, and
ratified the Declaration. On this I would remark that so far as the
“people at large” did really assent to the Declaration of Independence,
they doubtless did it, each for himself: but how about the large numbers who did
not assent to it voluntarily, but were coerced into sustaining or not
opposing the movement. Was their assent
given “each for himself” and “exercising simply his natural rights”? The next sentence is this: [TYPED] It was also only as so many individuals, each
acting for himself, and exercising simply his natural rights, that they
revolutionized the constitutional character of their governments, (so as
to exclude the idea of allegiance to Great Britain); changing their forms only
as when their convenience dictated. And this is also I claim to be historically
incorrect, inasmuch as the constitutional changes in the local governments were
clearly made by the dominant factions of the local oligarchies – and not by the
public acting “only as individuals.” But I need not continue to apply this
argument to each succeeding perspectives, and I will only add that I have just
the same objection to your conclusion, which is in these words: [TYPED] Thus, the whole revolution turned upon,
asserted, and, in theory, established, the right of each and every man, at his
discretion, to release himself from the support of the government under which
he had lived. Which, on the contrary, I believe that the
Revolution “turned upon asserted and in theory established” nothing more nor
less than state sovereignty : that is to say, the at most we can fairly
claim that they established was this right of the political majority of
every organized community to establish, recognize, assert and maintain any
government they choose without regard to any adverse claims of any one
class, foreign or domestic. You of course understand that I sympathize
warmly in the general scope & conclusion of your whole argument –
viz. That there is no principle of natural right (so called) which
requires any man to bear allegiance to a government any longer than he may
chose to do so. My objections lie to the
particular appeal you have made to history, to show that this principle was
asserted in the American Revolution. I
deny that this principle was then asserted, and merit that the action then
taken was in many respects in violation of this principle, which I am willing
to admit, and indeed claim, that another principle, namely that of State
Sovereignty, was then asserted or maintained; and that from this principle, by
a secondary argument, the right of each individual to secede from the State can
be proved by us, though it would have been repudiated by the men
of the Revolution and was in conflict with their proceedings. The assertion of the doctrine of State
Sovereignty and the Right of Secession is the distinction doctrine which
America has contributed to political progress – the first action of sovereignty
is that it is a personal attribute of the Ruler and this notion finds its
natural embodiment in an absolute monarchy; the next idea in advance is to
attribute sovereignty to the nation, and the natural embodiment of this
improved conception is in a limited monarchy or representative government. The third step in progress is to suppose that
the Sovereignty resides in separate communities, which are voluntarily
united politically, for their own advantage; – this is the doctrine of State
Sovereignty, and is most suitably embodied in a voluntary confederacy. The last step will be the acceptance of the
doctrine of individual sovereignty, or the right of every man to secede from
the State, and to be controlled by himself alone so long as he does not trespass
on others. But the most radical doctrine that has as yet
been supported by any large numbers of people is the doctrine of State
Sovereignty. In denying that, and
asserting the doctrine of natural sovereignty in place of it, I think the In your argument, I think you miss a point by
not dwelling on this doctrine – and that the absence of allusion to it makes
some of your arguments unintelligible.
For instance on pp. 13 and 14 you say that rebels are not traitors
because “having pledged no faith they broke none,” while almost all persons
brought up in the belief of National Sovereignty will consider that a rebel who
has taken an oath of allegiance and then repudiates it (as so many of the
Southerners did) have pledged faith and broken it – and such persons
will not be able soon to see what you can possibly mean by this argument. I
am, dear Sir, Yours
Sincererly, Robt. B. Minturn |