UNCONSTITUTIONALITY OF SLAVERY.

PART SECOND.

CHAPTER XIV.

THE DEFINITION OF LAW.

IT has been alleged, by way of objection to the definition of law given in chapter first, that under it the law would be uncertain, and government impracticable. Directly the opposite of both these allegations is true. Let us see.

1. Natural law, so far from being uncertain, when compared with statutory and constitutional law, is the only thing that gives any certainty at all to a very large portion of our statutory and constitutional law. The reason is this. The words, in which statutes and constitutions are written, are susceptible of so many different meanings, ‑‑ meanings widely different from, often directly opposite to, each other, in their bearing upon men's rights, ‑‑ that, unless there were some rule of interpretation for determining which of these various and opposite meanings are the true ones, there could be no certainty at all as to the meaning of the statutes and constitutions themselves. Judges could make almost anything they should please out of them. Hence the necessity of a rule of interpretation. And this rule is, that the language of statutes and constitutions shall be construed, as nearly as possible, consistently with natural law.

The rule assumes, what is true, that natural law is a thing certain in itself; also that it is capable of being learned. It assumes, furthermore, that it actually is understood by the legislators and judges who make and interpret the written law. Of necessity, therefore, it assumes further, that they (the legislators and judges) are incompetent to make and interpret the written law, unless they previously understand the natural law applicable to the [*138] same subject. It also assumes that the people must understand the natural law, before they can understand the written law.

It is a principle perfectly familiar to lawyers, and one that must be perfectly obvious to every other man that will reflect a moment, that, as a general rule, no one can know what the written law is, until he knows what it ought to be; that men are liable to be constantly misled by the various and conflicting senses of the same words, unless they perceive the true legal sense in which the words ought to be taken. And this true legal sense is the sense that is most nearly consistent with natural law of any that the words can be made to bear, consistently with the laws of language, and appropriately to the subjects to which they are applied.

Though the words contain the law, the words themselves are not the law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and different combinations of senses, in which each and 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 capable of some ten or twenty different senses. So that, by changing the sense of that single word, some ten or twenty different constitutions could be made out of the same written instrument. But there are, we will suppose, a thousand other words in the constitution, each of which is capable of from two to ten different senses. So that, by changing the sense of only a single word at a time, several thousands of different constitutions would be made. But this is not all. Variations could also be made by changing the senses of two or more words at a time, and these variations could be run through all the changes and combinations of senses that these thousand words are capable of. We see, then, that it is no more than a literal truth, that out of that single instrument, as it now stands, without altering the location of a single word, might be formed, by construction and interpretation, more different constitutions than figures can well estimate.

But each written law, in order to be a law, must be taken only m some one definite and distinct sense; and that definite and distinct sense must be selected from the almost infinite variety of senses which its words are capable of. How is this selection to [*139] be made? It can be only by the aid of that perception of natural law, or natural justice, which men naturally possess.

Such, then, is the comparative certainty of the natural and the written law. Nearly all the certainty there is in the latter, so far as it relates to principles, is based upon, and derived from, the still greater certainty of the former in fact, nearly all the uncertainty of the laws under which we live, ‑‑ which are a mixture of natural and written laws, ‑‑ arises from the difficulty of construing, or, rather, from the facility of misconstruing, the written law. While natural law has nearly or quite the same certainty as mathematics. On this point, Sir William Jones, one of the most learned judges that have ever lived, learned in Asiatic as well as European law, says, ‑‑ and the fact should be kept forever in mind, as one of the most important of all truths : ‑‑ "It is pleasing to remark the similarity, 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 manacled by positive institutions.'' fn34 In short, the simple fact that the written law must be interpreted by the natural, is, of itself, a sufficient confession of the superior certainty of the latter.

The written law, then, even where it can be construed consistently with the natural, introduces labor and obscurity, instead of shutting them out. And this must always be the case, because words do not create ideas, but only recall them; and the same word may recall many different ideas. For this reason, nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another. This is owing to the imperfection of language, and the different senses, meanings, and shades of meaning, which different individuals attach to the same words, in the same circumstances.fn35

Where the written law cannot be construed consistently with the natural, there is no reason why it should ever be enacted at all. It may, indeed, be sufficiently plain and certain to be easily understood; but its certainty and plainness are but a poor compen‑ [*140] sation for its injustice. Doubtless a law forbidding men to drink water, on pain of death, might be made so intelligible as to cut off all discussion as to its meaning; but would the intelligibleness of such a law be any equivalent for the right to drink water? The principle is the same in regard to all unjust laws. Few persons could reasonably feel compensated for the arbitrary destruction of their rights, by having the order for their destruction made known beforehand, in terms so distinct and unequivocal as to admit of neither mistake nor evasion. Yet this is all the compensation that such laws offer.

Whether, therefore, written laws correspond with, or differ from, 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 enacting mathematics by statute, that there is in enacting natural law. Whenever the natural law is sufficiently certain to all men's minds to justify its being enacted, it is sufficiently certain to need no enactment. On the other hand, until it be thus certain, there is danger of doing injustice by enacting it; it should, therefore, be left open to be discussed by anybody who may be disposed to question it, and to be judged of by the proper tribunal, the judiciary. fn36

It is not necessary that legislators should enact natural law in order that it may be known to the people, because that would be presuming that the legislators already understand it better than the people, ‑‑ a fact of which I am not aware that they have ever heretofore given any very satisfactory evidence. The same sources of knowledge on the subject, are open to the people, that are open to the legislators, and the people must be presumed to know it as welt as they. fn37 [*141]

2. But it is said further, that government is not practicable under this theory of natural law. If by this is meant only that government cannot have the same arbitrary and undisputed supremacy over men's rights, as under other systems ‑‑ the same absolute [*142] authority to do injustice, or to maintain justice, at its pleasure‑the allegation is of course true; and it is precisely that, that constitutes the merits of the system. But if anything more than that is meant, it is untrue. The theory presents no obstacle to the use of all just means for the maintenance of justice; and this is all the power that government ought ever to have. It is all the power that it can have, consistently with the rights of those on whom it is to operate. To say that such a government is not practicable, is equivalent to saying that no governments are practicable but arbitrary ones; none but those that are licensed to do injustice, as well as to maintain justice. If these latter governments only are practicable, it is time that all men knew it, in order that those who are to be made victims may stand on their defence, instead of being cheated into submission by the falsehood that government is their protector, and is licensed to do, and intends to do, nothing but justice to any.

If we say it is impracticable to limit the constitutional power of government to the maintenance of natural law, we must, to be consistent, have done with all attempts to limit government at all by written constitutions; for it is obviously as easy, by written constitutions, to limit the powers of government to the maintenance of natural law, as to give them any other limit whatever. And if they were thus limited expressly, it would then, for the reasons before given, be as easy, and even altogether more easy, for the judiciary to determine what legislation was constitutional, and what not, than it is under a constitution that should attempt to define the powers of government arbitrarily. [*143]

On what ground it can seriously be said that such a government is impracticable, it is difficult to conceive. Protecting the rights of all, it would naturally secure the cordial support of all, instead of a part only. The expense of maintaining it would be far less than that of maintaining a different one. And it would certainly be much more practicable to live under it, than under any other. Indeed, this is the only government which it is practicable to establish by the consent of all the governed; for an unjust government must have victims, and the victims cannot be supposed to give their consent. All governments, therefore, that profess to be founded on the consent of the governed, and yet have authority to violate natural laws, are necessarily frauds. It is not a supposable case, that all, or even any very large part, of the governed, can have agreed to them. Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government.

It is true that those appointed to administer a government founded on natural law, might, through ignorance or corruption, depart from the true theory of the government in particular cases, as they do under any other system; and these departures from the system would be departures from justice. But departures from justice would occur only through the errors of the men; such errors as systems cannot wholly prevent; they would never, as under other systems, be authorized by the constitution. And even errors arising from ignorance and corruption would be much less frequent than under other systems, because the powers of government would be much more definite and intelligible; they could not, as under other systems, be stretched and strained by construction, so as to afford a pretext for anything and everything that corruption might desire to accomplish.

It is probable that, on an average, three fourths, and not unlikely nine tenths, of all the law questions that are decided in the process of every trial in our courts, are decided on natural principles; such questions, for instance, as those of evidence, crime, the obligation of contracts, the burden of proof, the rights of property, &c., &c. fn38a If government be practicable, as we thus see it to be, where three fourths or nine tenths of the law administered [*144] is natural, it would be equally practicable where the whole was so.

So far from government being impracticable on principles of natural law, it is wholly impracticable to have a government of law, applicable to all cases, unless the great body of the law administered be natural; because it is impossible for legislation to anticipate but a small portion of the cases that must arise in regard to men's rights, so as to enact a law for them. In all the cases which the legislature cannot anticipate and provide for, natural law must prevail, or there can be no law for them, and, consequently, so far as those cases are concerned ‑‑ no government.

Whether, therefore, we regard the certainty of the law, or the practicability of a government applicable to all cases, the preference is incomparably in favor of natural law.

But suppose it were not so. Suppose, for the sake of the argument, that the meaning of the arbitrary commands of power were, in the majority of cases, more easily ascertained than the principles of natural justice; is that any proof that the former are law, and the latter not? Does the comparative intelligibility of the two determine which is to be adopted as the true definition of law? It is very often easier to understand a lie than to ascertain a truth; but is that any proof that falsehood is synonymous with fact? or is it any reason why falsehood should be held to be fact? As much reason would there be in saying this, as there is in saying that the will of the supreme power of the state is law, or should be held to be law, rather than natural justice, because it is easier to understand the former than to ascertain the latter.

Or suppose, further, that government were impracticable, under such a definition of law as makes law synonymous with natural justice; would that be any argument against the definition? or only against government?

The objection to the practicability of government under such a definition of law, assumes, 1st, that government must be sustained, whether it administer justice or injustice; and, 2d, that its commands must be called law, whether they really are law or not. Whereas, if justice be not law, it may certainly be questioned whether government ought to be sustained. And to this question all reasonable men must answer, that we receive such an abundance of injustice from private persons, as to make it inexpedient to maintain a government for the sole purpose of increasing the supply. But even if unjust government must be sustained, the ques‑ [*145] tion will still remain, whether its commands ought to be called law? If they are not law, they should be called by their right name, whatever it may be.

In short, the definition of law involves a question of truth or falsehood. Natural justice either is law, or it is not. If it be law, it is always law, and nothing inconsistent with it can ever be made law. If it be not law, then we have no law except what is prescribed by the reigning power of the state; and all idea of justice being any part of our system of law, any further than it may be specially prescribed, ought to be abandoned; and government ought to acknowledge that its authority rests solely on its power to compel submission, and that there is not necessarily any moral obligation of obedience to its mandates.

If natural justice be not law, then all the decisions that are made by our courts on natural principles, without being prescribed by statute or constitution, are unauthorized, and not law. And the decisions of this kind, as has already been supposed, comprise probably three fourths, or more likely nine tenths, of all the decisions given by our courts as law. fn39

If natural justice be law, then all statutes and constitutions inconsistent with it are no law, and courts are bound to say so. Courts must adopt some definition of law, and adhere to it. They cannot make it mean the two opposite principles of justice and injustice at once. White cannot be made white and black at the same time, by the assertions of all the courts on the globe. Neither can law be made two opposite things at once. It must be either one thing or the other.

No one doubts that there is such a principle as natural law; and natural law is natural justice. If natural justice be law, natural injustice cannot be made law, either by "the supreme power of the [*146] state," or by any other power; and it is a fraud to call it by the name.

"The supreme powers of states," whether composed of majorities or minorities, have alike assumed to dignify their unjust commands with the name of law, simply for the purpose of cheating the ignorant into submission, by impressing them with the idea that obedience was a duty.

The received definition of law, viz., that it is "a rule of civil conduct prescribed by the supreme power of a state," had its origin in days of ignorance and despotism, when government was founded in force, without any acknowledgment of the natural rights of men. Yet even in those days the principle of justice competed, as now, with the principle of power, in giving the definition of law; for justice was conceded to be the law in all, or very nearly all, the cases where the will of the supreme power had not been explicitly made known; and those cases comprised, as now, a very large portion of all the cases adjudicated.

What a shame and reproach, nay, what an unparalleled crime is it, that at this day, and in this country, where men's natural rights are universally acknowledged, and universally acknowledged to be inalienable, and where government is acknowledged to have no just powers except what it derives from the consent of the governed, (who can never be supposed to consent to any invasion of their rights, and who can be supposed to establish government only for their protection,) a definition of law should be adhered to, that denies all these self‑evident and glorious truths, blots out all men's natural rights, founds government on force, buries all present knowledge under the ignorance and tyranny of the past, and commits the liberties of mankind to the custody of unrestrained power!

The enactment and enforcement of unjust laws are the greatest crimes that are committed by man against man. The crimes of single individuals invade the rights of single individuals. Unjust laws invade the rights of large bodies of men, often of a majority of the whole community; and generally of that portion of community who, from ignorance and poverty, are least able to bear the wrong, and at the same time least capable of resistance. fn40 [*147]