The Online Library of Liberty

A project of Liberty Fund, Inc.

• Poverty, Its Illegal Causes and Legal Cure.—part I. By Lysander Spooner.
• Recommendations.
• Act of Congress of 1793.: An Act Respecting Fugitives From Justice, and Persons Escaping From the Service of Their Masters.
• Act of Congress of 1850.: An Act to Amend, and Supplementary to the Act, Entitled “an Act Respecting Fugitives From Justice, and Persons Escaping From the Service of Their Masters,” Approved February 12, 1793.
• A Defence For Fugitive Slaves.
• Chapter I.: Unconstitutionality of the Acts of Congress of 1793 and 1850.
• Chapter II.: The Right of Resistance, and the Right to Have the Legality of That Resistance Judged of By a Jury.
• Chapter III.: Liability of United States Officers to Be Punished, Under the State Laws, For Executing the Acts of 1793 and 1850.
• Appendix A.: Neither the Constitution, Nor Either of the Acts of Congress of 1793 Or 1850, Requires the Surrender of Fugitive Slaves.
• Appendix B.: Authorities For the Right of the Jury to Judge of the Law In Criminal Cases.
• Appendix C.: Mansfield’s Argument Against the Right of the Jury to Judge of the Law In Criminal Cases.
• Appendix D.: Effect of Trial By Jury, In Nullifying Other Legislation Than the Fugitive Slave Laws.
• Unconstitutionality of Slavery. Parts First and Second.
• Recommendations.
• Also For Sale As Above.

CHAPTER III.

Liability of United States Officers to be punished, under the State Laws, for executing the acts of 1793 and 1850.

If the laws of 1793 and 1850 are unconstitutional, they are no laws, in the view of the constitution; consequently they confer no authority on any one; and the United States judges, commissioners, marshals, &c., who may assist in sending men into slavery, in performance of them, are liable to be punished, under the State laws, as kidnappers, the same as they would have been if Congress had passed no act on the subject.

The constitution contemplates that all officers of the United States, except Senators and Representatives, may be punished for any crimes done under color of their office; for it declares, that, in addition to impeachment, they “shall be liable, and subject to, indictment, trial, judgment, and punishment according to law.” (Art. 1, Sec. 3, Ch. 7).

If any one of these officers were to commit murder, rape, arson, theft, or any other crime, either under color of his office, or otherwise, his office is no protection to him against the laws of the State. And it is the same in the case of kidnapping, as it would be in the case of any other crime.

The only question, that can be raised in their defence, is, whether they are bound to know that an act, that has passed through the regular forms of being enacted, is unconstitutional?

This question is answered by the simple principle, that every body is bound to know the law. If that obligation be imperative upon any one, it is imperative upon those who administer the law. The constitution is the fundamental, the paramount law, and all officers of the government are sworn to support it. Of course they are presumed to know it, and bound to know it, else their oaths to support it would be but nonsense.

If they are bound to know the constitution itself, they are of course bound to know whether an act, that has passed Congress, be in conformity with it,—else in executing the act they would be liable to commit a breach of their oaths to support the constitution.

They are also sworn to administer and execute the laws of the United States. Unless they were presumed to know, and bound to know, what are, and what are not, laws of the United States, within the meaning of the constitution, this oath also is an absurd one.

If the judges or executive officers were bound to consider every act, that may pass Congress, a constitutional one—that is, a law, within the meaning of the constitution,—their oath to support the constitution, and their oath to support the laws, would come in conflict with each other, whenever an unconstitutional act was passed.

Indeed we all know that the judiciary are not bound to consider an act of congress constitutional; and if the judiciary are not, no other branch of the government is, for each department of the government judges of the constitution for itself, independently of the others,—else no one branch would be any restraint upon the others, and the whole object of having the government divided into different departments, to act as checks upon each other, would be lost. Every law, therefore, must pass the ordeal of all branches of the government, (if brought before them), before it can be executed.

The constitution (Art. 1, Sec. 6), protects those who make an unconstitutional law,—that is, “the Senators and Representatives,”—from any legal responsibility for the act, by providing that “for any speech or debate in either house, they shall not be questioned in any other place.” Unless, therefore, those who execute an unconstitutional law, can be held responsible for their acts, there is no crime, however contrary to the constitution, which congress may not authorize to be committed with impunity; and all ideas of there being any legal and practical restraints upon the government of the United States, short of a resort to force, are fallacious.

For all acts, therefore, that are criminal in themselves, the officers of the United States are liable to be tried under the State laws, and punished, unless they show that the acts were done in pursuance of some constitutional law of the United States. And no presumption in favor of the constitutionality of the law can be allowed, if the acts done are criminal in themselves; for the presumption must always be that the constitution authorizes nothing criminal in itself.

In the trial of an United States officer for a crime committed under color of an unconstitutional law of Congress, the question whether the law were constitutional, would be a question to be judged of, in the first instance, by a jury. If they held the law unconstitutional, and convicted the defendant, he would have a right of appeal to the Supreme Court of the United States. But corrupt as that court is, they would rarely dare, against the general voice of the juries of the country, to hold a law constitutional, that licensed crimes against the people.

In saying that the officers of the government are bound to know the law, (and consequently to know whether an act of congress be constitutional), I am only laying down the general principle of criminal law—a principle, which the government usually enforces without mercy, against private individuals, and which is certainly as sound when applied to an officer of the government, as when applied to private persons.

But in truth the maxim, that ignorance of the law excuses no one, is a very absurd and unjust one, if applied without any limitation, inasmuch as it would nullify the first principle of criminal law, that there can be no crime without a criminal intent. The rule is also one, which judges themselves could not live under, for they are every day committing errors, which would be crimes, if ignorance were not a legal excuse.

But the rule is a sound one, so far as it is necessary to compel all men, officers of the government, as well as private persons, to use all reasonable and proper diligence to ascertain the law. And where a law requires any thing, that is criminal in itself, an officer is bound to act with far greater caution, and to use far greater diligence, to ascertain whether it be constitutional, than he is where the act required to be done is right in itself—because the presumption of law is always in favor of justice. Nothing, therefore, but entirely clear and conclusive proof of the constitutionality of a law, ought to justify an officer in executing it, if it require him to do any thing that is intrinsically criminal.

This liability of the officers of the United States, to the criminal laws of the states, is no hardship upon them—for it applies only in cases where the acts done by them are mala in se, criminal in themselves. And they, like other men, can be convicted only where the jury find that they either knew that the acts done by them were intrinsically criminal, or were culpably ignorant of their character in that respect. Now, it would really be no hardship that a man should be punished for an act, that he knew to be to be intrinsically criminal, even though it were authorized by all the governments in the world; because governments have no rightful power to authorize such acts, and their authority is, morally speaking, no justification to the agent. An officer of the government, who performs an act criminal in itself, does it voluntarily for hire, (for he is at liberty to resign his office); and he has no more moral excuse for the act than any other man has, who perpetrates a crime for pay. It is therefore a special grace, and bad enough in principle, to allow officers of the government, in any case, to set up a law of the government, as an excuse for a known crime. If this grace be extended so as to allow an unconstitutional law, (which is really no law at all), to be used as a justification for crimes, we in reality license the government to perpetrate all crimes at pleasure.

The question now arises, whether these fugitive slave laws are so plainly unconstitutional, as to afford no legal excuse for those who execute them?

In the first place, there would seem to be no doubt, so far as the commissioners are concerned. The acts required of them are judicial acts; yet they plainly are not judicial officers, within the meaning of the constitution. And inasmuch as the act of delivering a man into bondage is intrinsically a crime, they are inexcusable for assuming judicial powers for the purpose of executing it.

The objection which lies against the commissioners, on account of the tenure of their offices, and their want of fixed salaries, does not apply to judges of the established courts. But all the other grounds of unconstitutionality are as strong in the case of the judges as in the case of the commissioners. And the question is, whether an act of Congress, requiring that a man—found in a free state, and prima facie a free man and citizen of the United States—be delivered into slavery; without a trial by jury; on ex parte evidence; and a part of that ex parte evidence taken in another state, by a state “court, or judge thereof in vacation,” and made binding upon the United States court that delivers him up; denying him the right to give his own testimony; and depriving him, by “a summary manner” of proceeding, of all opportunity of procuring other testimony in his favor; be so plainly unconstitutional, that a jury would be bound to hold a judge guilty of a criminal intent in executing it?

That the act of delivering a man into slavery is intrinsically a crime of a high grade no one can deny. The presumption of law therefore, is, that the constitution gives no authority for it. The burden is therefore upon the judge to show that the acts of Congress are so clearly constitutional, as to overcome this presumption, and justify the act. If he can show this, he is entitled to the benefit of it; otherwise not.

To illustrate the principles here maintained, let us suppose that Congress pass an act for the trial and punishment of traitors; providing that a person accused of treason, may be tried and convicted wholly on ex parte evidence; that ex parte evidence, taken in another state than the one in which he is tried, and before “any (state) court of record, or judge thereof in vacation,” “shall be held and taken (by the United States court) to be full and conclusive evidence of the treason,” leaving nothing but the identity of the individual to be proved on the trial; enacting also that he shall be tried “forthwith,” after being arrested, and “in a summary manner,” that will allow him no opportunity to procure evidence in his defence; that he shall not have a trial by jury, as the constitution requires that he shall have; but that he shall be tried by a single judge; (and that judge, it may be, not one having a fixed salary, and therefore free from any pecuniary interest in his conviction, but one depending solely upon fees for his pay, and who is to receive ten dollars if he convict the accused, and sentence him to death, and but five dollars if he acquit him); enacting further that, in case of conviction, no appeal shall be allowed to a higher court on any question of either law or fact; that no writ of habeas corpus shall be issued in his behalf; but that, on the contrary, the judge, that convicted him, shall at once issue his warrant to the marshal, requiring him, under penalty of a thousand dollars, to hang the man immediately before he can be rescued by the people; suppose all this, and does any one doubt that the judge, marshal, and every body else who should assist in executing the law, would be bound to know that such a law was unconstitutional, and would therefore be guilty of murder in executing it? and liable to be punished as murderers under the laws of the state, in which the transaction occurred? Yet what difference is there, in principle, between that case, and a case of kidnapping under the statutes we have been discussing? If there be any difference, sufficient to constitute a valid excuse, the government officers must go acquitted of their crime; otherwise they must be convicted.

The same principles of responsibility to the criminal laws of a state, that apply to judges, commissioners, and marshals, apply also to the militia, who turn out, at the command of the president, to assist in enforcing an unconstitutional law. If the militia are bound to know nothing of the constitutionality of a law of Congress, or to know no law but the orders of a superior officer, we live under a military despotism.

In addition to these liabilities to the criminal law, the officiers of the United States are liable to civil suits for damages, if they execute an unconstitutional law of Congress to the injury of private persons. And judgments recovered in the state courts could be invalidated, if at all, only on an appeal to the supreme court of the United States.

Finally. If these fugitive slave laws are unconstitutional, the delivery of persons into slavery under color of them, is a crime; and the state magistrates, on application to them, are bound to place the officers of the United States under bonds to keep the peace in this particular. If those officers then proceed, contrary to the obligation of their bonds, to execute the law, their bonds are liable to be enforced, unless invalidated on an apppeal to the supreme court of the United States.

Unless these principles be sound, it is manifest that the states have no power to protect their citizens against any crimes, which Congress, by unconstitutional enactments, may please to license to be committed against them.