The Online Library of Liberty

A project of Liberty Fund, Inc.

• Shorter Works of Lysander Spooner, Volume I
• The Deist’s Immortality, and an Essay On Man’s Accountability For His Belief.
• The Deist’s Immortality.
• An Essay, On Man’s Accountability For His Belief.
• Worcester Republican.—extra.
• The Deist’s Reply.
• Chapter I.: The Early Spread of Christianity.
• Chapter II.: The Nature and Character of Jesus.
• Chapter III.: The Alleged Miracles of Jesus.
• Chapter IV.: The Prophecies.
• Chapter V.: The Resurrection.
• Supreme Court of United States, January Term, 1839. } Spooner Vs. M’connell, Et, Al.
• Constitutional Law.
• Chap. I.: The Unconstitutionality of All State Laws Restraining Private Banking and the Rates of Interest.
• Chap. II.: What Bank Charters Are Unconstitutional.
• Chap. III.: What Bank Charters Are Constitutional.
• Chap. IV.: The Power of Congress Over the Currency.
• Errata.
• Poverty: Its Illegal Causes and Legal Cure. Part First.
• Chapter I.: Illegal Causes of Poverty.
• Chapter II.: Economical Propositions.
• Chapter III.: Economical Results From the Preceding Propositions
• Chapter IV.: Social, Moral, Intellectual, and Political Results From the Preceding Propositions.
• Chapter V.: The Legal Nature of Debt.
• Chapter VI.: The Legal Nature of Debt.—( Continued. )
• Who Caused the Reduction of Postage? Ought He to Be Paid?
• Illegality of the Trial of John W. Webster.
• A New System Paper of Paper Currency.
• Part First
• Note.
• Chapter I.: Outline of the System.
• Chapter II.: Advantages of the System.
• Chapter III.: Security of the System.
• Chapter IV.: Practicability of the System.
• Chapter V.: Legality of the System.
• Part Second.
• Articles of Association of a Mortgage Stock Banking Company.

CHAPTER VI.

THE LEGAL NATURE OF DEBT.—(Continued.)

Some persons may not have been convinced, by the arguments already offered, that debt is but a bailment. The doctrine is also too important to be dismissed without offering all the arguments that go to sustain it. Some further explanations of collateral questions are also necessary. These additional arguments and explanations have been reserved for a second chapter, for the reason that, to many minds, I apprehend, they will be unnecessary, and therefore tedious; and for the further reason that the matter will be simplified by presenting them separately from those in the preceding chapter.

There remain two lines of argument, which go to prove the same point, to wit, that debt is but a bailment—and which, for the sake of distinctness, will be presented separately. It will be impossible, in presenting them, to avoid entirely a repetition of some of the ideas already expressed.

FIRST ARGUMENT.

In order to get at the true nature and obligation of debt, it is necessary to consider that a promise to pay money is of no legal importance, except as evidence of debt. It does not, of itself, create the debt. It only aids to prove it.

Neither do the true nature and obligation of debt consist in, nor even rest at all upon, the merely moral obligation of a promise to pay. A naked promise to pay money is of no obligation, in law, however sincere may have been the intention of the maker to fulfil it. The legal obligation of debt never arises from the fact that a man has made a promise to pay money. It is entirely immaterial to the validity of a debt, whether the debtor have made any promise or not. The debt does not arise from the promise; the promise is only given as evidence of the debt.

The legal obligation of a debt, then, is something entirely distinct from the moral obligation of a promise, or the moral obligation to keep one’s word. The promise is given merely because the debt is due, and as evidence that the debt is due. It is no part of the legal obligation of the debt itself.

If a promise be made when no debt is due, the promise is of no importance in law. On the other hand, if a debt be due, and no promise have been given, the debt is equally valid, as if a promise had been given. These facts show that the promise is nothing material, either to the existence or to the obligation of a debt. A debt may be created without giving a promise; and a promise may be given without creating a debt.

In order, therefore, to get at the true nature of debt, it is necessary to separate it entirely from the idea of a promise. It is this false idea of the legal obligation of a promise, that interposes itself before our minds, and prevents our seeing the true nature and obligation of the debt.

But it is said by the lawyers, that when a man has “received value,” as a “consideration” for his “promise,” his promise is binding. But it is an entire misstatement of fact, and conveys wholly erroneous ideas of the nature of debt, to say that the debtor receives value, as a consideration for his promise. A man never pays a consideration for a promise—for a promise, as we have seen, has, of itself, no legal obligation, and is of no consequence to the validity of a debt. To say, therefore, that a man pays a consideration for a promise, is equivalent to saying that a man pays his money for nothing—for that which has no value of itself, and is of no legal obligation.

If, then, the creditor do not pay “value” to the debtor as a consideration for the debtor’s promise, for what does he pay it to him? Obviously as the consideration, or price, of the thing promised—that is, as the price of the equivalent, which the debtor sells to him in exchange. If, for instance, A sells to B a horse for an hundred dollars, and takes B’s promissory note therefor, he does not sell the horse for the note, but for the hundred dollars; and he takes the note merely as evidence that he has bought the hundred dollars, and paid an equivalent (or value) for them, and that they are therefore now his, by right of property; also as evidence of the time when they are to be delivered to him.

This brings us to a perception of the fact, that the “value received” by the debtor from the creditor, and the sum, or value, which the debtor promises to pay or deliver to the creditor, are merely equivalents, which have been mutually sold or exchanged for each other.

If these equivalents have been mutually sold, or exchanged for each other, each equivalent has bought and paid for the other; and, of necessity, the right of property in each equivalent passed to its purchaser, at the same time that the right of property in the other equivalent passed to its purchaser—that is, at the time of the contract.

But that, which makes one of these parties the debtor of the other, when there has been merely an exchange, or a mutual purchase and sale of equivalents, between them, is simply this, viz., that the value, which is sold by one of the parties to the other, is, by agreement, to remain, for a time, in the hands of the seller, for his use.

A debtor, therefore, is one, who, having sold value to another, and passed the right of property in it to the purchaser, retains it for use until a time agreed upon for its delivery. At the end of this time, the creditor can claim this value, because it is his, he having previously bought it, and paid for it—and not because the debtor has promised to deliver it at that time. The debtor’s promise to pay, or deliver, this value to the creditor, at the time agreed upon, is not of the essence of the contract, by which the creditor acquired his right of property to the value promised; and it is of no importance whatever except as evidence that the value, thus promised to be paid, or delivered to the creditor, has been already sold to him, paid for by him, and now belongs to him; and that the debtor has no right to retain it, for use, beyond the time when he has promised to deliver it. The promise, therefore, instead of being evidence that the right of property, in the value promised, has not passed to the creditor, is only evidence that it had (in point of law) passed to him before the promise to deliver it was made.

The right of property, in the value to be paid by the debtor, must have passed to its purchaser, the creditor, at the same time that the right of property, in the “value” paid by the creditor, passed to its purchaser, the debtor—that is, at the time of the contract; else the creditor would have parted with his “value,” or property, (that which he paid to the debtor,) without receiving any equivalent for it. He would merely have received a promise, which, as we have seen, is of no legal value, of itself, and could be used only as evidence. And it could be used as evidence only to prove that the creditor had paid value to the debtor in exchange for an equivalent; that he had thus bought the equivalent; and that he was then, of course, the owner of the equivalent thus bought and paid for—notwithstanding it were still remaining in the hands of the debtor.

The promise, therefore, would be of no avail, even as evidence, unless the right of property in the value promised to be paid, or delivered, had already passed to the creditor—for that is the only fact, (in case of debt,) which the promise can be used to prove.

But perhaps it will be said, (and this is all that can be said on the other side,) that the promise, and the acknowledgement of the receipt of value, by the debtor, may be used to prove that the creditor has paid value to the debtor in exchange for an equivalent, which the debtor was to deliver, or pay, to the creditor at a future time. True it may; it can be used for that purpose, and no other. But that is, in reality, only asserting, instead of contradicting, what has already been stated, viz., that the promise may be used to prove that the creditor has bought value of the debtor, and paid for it; and that it, (the value thus bought and paid for,) is therefore now his, (the creditor’s,) by right of property, and has been his ever since he bought and paid for it, to wit, ever since he paid his value to the debtor—for (as has before been mentioned) it is absurd to say, when a man has bought and paid for a thing, that he does not own it, (has not the right of property in it,) merely because it was left for a time in the hands of the seller.

The essential error in the common theory of debt, is, that it supposes that the creditor acquires no present right of property—at the time the contract is made, or at the time he pays his value to the debtor—in the equivalent which the debtor promises to pay or deliver to him; that he only acquires a right of property in this equivalent when it is finally delivered, or paid to him—which may be days, months, or years after he has really bought it and paid for it. It supposes that he pays his value to the debtor, and passes his right of property in it to the debtor, without at the time acquiring, in return, any equivalent right of property in the value which the debtor is to pay, or to deliver to him.

This error results, in part, in this way, to wit; because the value sold by the debtor to the creditor, is, at the time of the sale, merged in the whole value of all the debtor’s property, and is to remain so merged until it is finally separated and converted into money, for the purpose of delivery, we overlook the fact, that the right of property in it has nevertheless as much passed to the purchaser, (that is, to the creditor,) as if it were already separated from the mass of the debtor’s property, and delivered to the creditor.*

This error is further strengthened by our confounding, in the first place, the idea of a promise, and the obligation of the debt; and, in the second place, the right of property, and the delivery of the property itself. The promise, and the obligation of the debt, as we have already seen, are entirely distinct matters. So also the right of property, and the delivery of property, are entirely distinct matters. Neither depends at all upon the other.* The right of property is acquired when it is bought and paid for; the delivery only gives the owner the possession of what was already his. A creditor, therefore, acquires a right of property in the value promised to him, at the time he pays his value for it—whether the actual delivery or payment of the value promised takes place at that time, or months, or years afterwards. If this were not so, the creditor, during the whole period, between the time when he pays his value to the debtor, and the time when the debtor finally delivers or pays to him the equivalent value, is without any right of property at all, either in the value he has parted with, or in the value that he is to receive for it. And if he has no rights of property, during all this time, to either of these values, he has, of necessity, no rights at all in reference to them; and never can have by virtue of his contract. He only holds a promise, which could be used as evidence of his rights of property, if he had any such rights; but which, on the theory that he has no such rights, can be of no use whatever.

If it be now established, that the value paid by the creditor to the debtor, and the value promised by the debtor to the creditor, are merely equivalents, that are mutually bought and sold for each other; and if it be also established that the right of property, in each of these equivalents, passes to its purchaser, at the same time that the right of property in the other equivalent passes to its purchaser, to wit, at the time of the contract, instead of at the time of delivery, these facts furnish us with an explanation, or definition of the true legal obligation of a debt. They define this obligation to be the obligation of a seller to preserve for, and deliver to his purchaser at a time agreed upon, value, which he has sold him, and the right of property in which has already passed to him.

If this definition be correct, a debt (or sum due) is merely an amount of value, which has been sold by one person to another, and is to be delivered to him at a time subsequent to the sale. And a debtor is merely one, who has sold value to another, but retains the custody and use of it for a time after the sale, and is bound to deliver it to the purchaser, on demand, or at a future time agreed upon.

If these definitions of debt, debtor, and the obligation of a debt, are correct, they prove that from the time the contract (by which the debt is created) is entered into, up to the time the value due is to be delivered, the debtor is the mere bailee of the creditor; for a man, who continues to hold property, that he has sold to another, is merely the bailee of the purchaser; he is the mere holder, user, and hirer of the value, which he himself has sold, but not delivered; and all the necessary consequences of bailment follow; and the legal principles of bailment apply. One of these principles, as has before been stated, is that if the property bailed be lost or injured during the bailment, without any fault or culpable neglect on the part of the bailee, the loss falls on the bailor, or owner.

SECOND ARGUMENT.

It is a principle of natural law, that a contract for the conveyance of property is void, unless there be property owned by the maker, for the contract to attach to, at the time it is made. If, for instance, A should give to B, a deed of a farm, which A did not own, the deed would be void. It would convey no rights to B, simply because A owned no such farm for the contract to attach to—or, what is the same thing, because it is, in the nature of things, impossible that he could convey to B any rights, which he did not himself possess. And even if A should afterward become the owner of the farm, the deed that he had previously given of it to B, would give B no title to it. To convey the farm to B, a new deed would have to be given, simply because, at the time the first deed was given, A had no right of property in the farm, for his contract to attach to and convey. His first deed being void, at the time it was given, it could never afterwards be made a legal conveyance of rights subsequently acquired.

Again. If A should make a contract, purporting to convey to B his (A’s) right, as heir, in his father’s estate, while his father was yet living, the contract would be void, simply because, while his father was living, he had no right, as heir, in his estate. And even after his father should have died, and he should have become heir to his estate, B could not hold it under any contract that had been made prior to A’s becoming entitled as heir—all for the simple reason, that at the time the contract was entered into, there was no legal right or property in A, for his contract to attach to and convey. And if it attached to nothing at the time it was entered into, it never could attach to anything. No contract, that a man can enter into at one time, can, in the nature of things, be made a legal conveyance of any rights which he did not then possess, and which he should only acquire subsequently.

If A were to give to B, a bill of sale of a horse, which he (A) did not own, B would acquire no rights to the horse by it; simply because A had, at the time, no ownership, or right to the horse, that he could convey. And even if A should afterwards become the owner of the horse, B could not hold him, or claim him, under the bill of sale that had been previously given—solely for the reason that, as there was no right of property, in A, to the horse, at the time the bill of sale was given, the contract was void. It conveyed nothing, because the maker of it had no rights that his contract could convey. There was nothing for the contract to attach to. The contract being void at the time it was entered into, nothing that might happen afterwards could make it a valid conveyance of rights subsequently acquired. B could then get the horse only by a new sale, or a new contract, to be made after A had become the owner of the horse.

In all these three cases, that have been named, where the sale proved void, for want of any right in A to the thing purported to be sold, B could recover back his consideration money, on the ground of its having been paid without any equivalent, or value received. And in an action to recover it, he could use the deed, bill of sale, or other contract, as evidence that he had paid the consideration money; but the contract itself would convey him no rights, either to the land, the inheritance, or the horse, simply because A, at the time of making the contract, had no rights that he could convey. And B would recover his consideration money, solely because the grant or contract had conveyed him no rights.

These cases are put simply to illustrate the principle, that a contract, for the conveyance of property, is void, and conveys no rights whatever to the grantee, unless the grantor be the possessor, at the time the contract is entered into, of the rights his contract purports to convey. Any subsequent ownership, that he may acquire, is not transferred to the grantee by any contract made previous to his becoming the owner. There being, in the grantor, at the time the grant is made, no such rights as the contract purports to convey, the contract is void, inoperative; and being void at that time, nothing can give it validity at a future time. It can only be used as evidence that the grantee has paid his money without consideration, and ought to recover it back. And if he wishes to acquire the specific property contracted for, whenever it may afterwards happen to come into the hands of the grantor, he must do it by a new contract—the old one being absolutely inert, lifeless, invalid, for any purpose of a conveyance. And it is equally invalid, so far as any conveyance of rights is concerned, whether the grantee have actually recovered his consideration money, or not. It may be useful, as evidence, to enable the grantee to recover the money he has paid; but it is incapable of any validity as a conveyance.

The force and justness of this principle will be more clearly seen, when it is considered what a contract really is. It is merely a consent, agreement, assent—a mere operation of the mind. The written instrument, called a contract, is only the evidence of the mental contract, or consent. It has no validity otherwise than as such evidence. The only really material matter is the mental operation, or assent.* Now this mental exercise, or assent, can obviously produce no effect, except while it is in action. It must therefore pass the right of property then, or never. If, while it is in action, the right of property be in the person who experiences this assent, the assent passes the right of property to another. But if the right of property be not in him, while experiencing this sensation of assent, the sensation accomplishes nothing, because there is nothing on which it can operate. And if the person should ever after become the proprietor of the thing to be conveyed, he must experience the sensation again, in order to make the conveyance, because his former consent was of no force except while it continued.

This principle being established, that a contract for the conveyance of property, has no legal force, or validity, as a conveyance—that is, that it attaches to nothing, and conveys no right to anything—unless the maker, at the time the contract is made, be the owner of the rights he purports to convey, let us apply the principle to the case of a promissory note.

A promissory note is a contract (or, more accurately speaking, the evidence of a contract) for the conveyance of property—that is, of money. It is a bill of sale of money, that has been sold and paid for, and is to be delivered at a future time. It differs, in some particulars, from the contracts just mentioned, in regard to land, a horse, &c.; but it does not differ from them, in any particular that is essential to the principle just stated, to wit, that a contract for the conveyance of property, attaches only to the property that a man has when the contract is entered into—(and, of consequence, to such other property as may become indistinguishably mixed with it prior to the delivery.) The rights, which a creditor acquires by a promissory note, (or by the contract of which the note is the evidence,) are rights which attach to the debtor’s property the moment the contract is entered into, even though the money is not to be delivered for months or years afterward. And if the debtor have no property for the contract to attach to, at the time the contract is entered into, the contract is void, and can never afterwards attach to anything. And this is on the same principle, that a deed of a farm attaches to the farm from the moment the deed is made, and that the right of property in the farm passes, at that moment, from the seller to the buyer, even though the possession of the farm is, by agreement, not to be delivered for months or years afterwards. So also a bill of sale of a horse, attaches to the horse, and the right of property in the horse passes from the seller to the buyer at the moment the contract of sale is entered into, even though the horse, by agreement, is not to be delivered until a subsequent time. On the same principle, the right conveyed by a promissory note, (which is merely a contract for the sale and delivery of money,) attaches to the debtor’s property, and the lien passes to the creditor at the moment the contract is entered into, even though the money is not to be delivered until months or years subsequent. The right of the creditor must attach at the time the contract is entered into, or, for the reasons already given, it can never attach at all; and would therefore convey no rights at all to the creditor.

The principal points, in which a deed of land, or a bill of sale of a horse, (where the possession is to be delivered at a time subsequent to the contract,) differs from a promissory note, are these:

1. A deed of land, or a bill of sale of a horse, necessarily describes or designates a particular piece of land, or a particular horse; and it necessarily applies or attaches only to the one so described, because there is, and can be no other precisely like it. Bat a promissory note does not describe the particular dollars, that are sold, or are to be delivered, but only the number of them. It therefore does not apply, or attach to, any particular dollars; and it is not necessary that it should, because all dollars are of equal value, and therefore it is immaterial what particular dollars shall be delivered.

2. As a promissory note does not describe or designate the identical dollars sold, it cannot apply, or attach to any particular dollars, any more than to any other dollars that the debtor may have.

3. As a promissory note does not describe, designate, or attach to any particular dollars, in preference to others, it does not imply that the identical dollars, that are finally to be delivered, now exist in the hands of the debtor. And if it does not imply that those identical dollars now exist in the hands of the debtor, it does not even imply that the amount of value, which the dollars contain, or (in other words,) the amount of value which the note conveys, now exists (in the hands of the debtor) of the debtor) in the shape of dollars, any more than that it exists in any other particular shape, from which it can, by the time agreed on for the delivery, be converted into the particular dollars that shall finally be delivered, or into any dollars that the debtor may have a right to deliver in fulfilment of his contract. As the note does not describe or designate the identical dollars, that are sold by the contract, it does not imply or describe the particular shape, in which the amount of value sold, now exists; for if it do not imply that it exists in the shape of the identical dollars that are to be delivered, it does not imply that it exists in the shape of any other dollars, any more than that it exists in the shape of corn, wool, or iron. It only implies, therefore, that it exists, (that is, that the amount or value conveyed by the note exists,) in the hands of the debtor, in some shape or other, from which it is susceptible of being converted into dollars by the time agreed on for the delivery.

4. As the note does not describe the particular shape in which the value conveyed by it now exists, and does not even imply that it now exists in the shape of dollars, the note is, in effect, a lien upon all a man’s property for the number of dollars mentioned in the note; or it is a sale of so much value, existing in some shape or other, as will procure, or exchange for the number of dollars mentioned in the note, rather than a sale of any particular dollars themselves. That such is the fact, is evident from two considerations, to wit; first, that the identical dollars sold are not described, and therefore cannot be known; and, secondly, that the debtor is to have the use of them until the time agreed upon for the delivery. As the dollars, while remaining in the specific shape of dollars, can be of no use to the debtor, and can be used by him only by converting them into other commodities, and as they are to be left in his hands, for a certain time, solely that he may use them, it follows that it must have been the intention of the parties that the debtor should have the right of converting them into other commodities that might be productive, or susceptible of use in the mean time — that is, until the time of delivery; and, therefore, that the creditor should have his lien upon them, or upon an amount of value equivalent to them, into whatever shape they might be converted, or through whatever changes they might pass, previous to delivery; and that, in time for the delivery, this amount or value was to be converted again into dollars for that purpose.*

5. As the contract, to be of any validity, (that is, to convey any rights,) must, from the moment it is entered into, attach to something or other in the hands of the debtor; and as it does not designate, or therefore purport to attach to the identical dollars that are to be delivered, it can only attach to the general property of the debtor, as a lien for the number of dollars to be delivered. Unless it thus attach to the general property of the debtor as a lien, it would, of necessity, be a nullity, having no legal operation whatever, simply because there is nothing else for it to attach to.

A promissory note, therefore, for an hundred dollars to be delivered at a future time, is, in reality, a contract of sale of so much value, existing, in some shape or other, in the hands of the debtor, as will produce an hundred dollars. Such a contract is, in effect, a lien, for that amount, upon a man’s whole property, even though his whole property should be equal to an hundred times that amount — and why? Because, as the particular amount of value, or property, to which the contract attaches, is not described, or set off distinctly from the rest of his property, the debtor can never show, as long as any portion of his property remains in his hands, and the debt is unpaid, that the portion remaining in his hands is not the portion that was sold, and promised to be delivered. Besides, if, by the time of delivery, it shall appear that all his property has disappeared except a single hundred dollars, it is more reasonable to suppose that he has disposed of his own property, than that he has disposed of that to which his creditor had on equitable right.

A promissory note, then, for an hundred dollars, is a mere bill of sale of an hundred dollars, that are to be delivered at a future time; or rather a bill of sale of so much value, (now existing, or presumed to exist, in some other shape than that of the identical dollars which are to be delivered,) as will purchase an hundred dollars at the time agreed upon for the delivery. Although, then, a promissory note difers from a bill of sale of a horse, or a deed of land, in not describing or designating the identical dollars sold, and therefore in not attaching to any particular dollars which the debtor may have on hand at the time the contract is entered into, it is nevertheless precisely like a bill of sale of a horse, or a deed of land, in this respect, to wit, that the rights of the creditor attach, from the moment the contract is made, to an amount of value, (existing in the hands of the debtor, in some shape or other,) sufficient to produce, or be converted into, the number of dollars mentioned in the note.

But perhaps some may be disposed to deny that there is any such analogy, as I have supposed, between a promissory note and a deed of land, or a bill of sale of a horse; or any analogy that makes it necessary that there should be any property, in actual existence, for the contract expressed in the note, to attach to. And perhaps they will say that the different form of a promissory note from that of a deed, or bill of sale — the former being a “promise to pay” at a future time, and the two latter being express grants in the present tense — implies that the note conveys no such present right of property to the payee, as a deed does to the grantee, or a bill of sale to the vendee.

To see the fallacy of this objection, it is necessary to get rid of words, and get at ideas; or rather to get rid of that confusion of ideas, which results from the habit of arbitrarily using different words to convey the same essential ideas. For instance. We “pay” money for a horse, and we “sell” a horse for money — such is the common use of words. Yet, in reality, we as much “pay” the horse for the money, as the money for the horse. And we as much sell the money for the horse, as the horse for the money. The horse buys the money, as much as the money buys the horse. The horse and the money are equivalents, which are mutually exchanged for each other; which mutually buy each other; which are mutually sold for each other; which mutually pay for each other. In every exchange of equivalents of this kind, there are two purchases, and two sales. One of the parties sells his horse for money, the other his money for a horse. One of the parties buys a horse with money, the other buys money with a horse. And this is the whole matter.

When, therefore, a man sells a horse for money, and promises to deliver the horse at a future time, the contract is of precisely the same essential nature as where a man sells money for a horse, and promises to deliver, or “pay” the money at a future time. The horse and the money are the equivalents, that are exchanged for each other; that is, the right of property in each is exchanged for the right of property in the other. And the right of property in each equivalent passes at the same instant that the right of property in the other equivalent passes — else the contract is not reciprocal, mutual, or equal, and one of the parties receives no equivalent, or consideration, for the property he sells. And it is of no consequence when the delivery, either of the horse, or of the money, actually takes place — whether in a month or a year after the contract — or whether the delivery of both equivalents takes place at one and the same time, or not. The right of property in both equivalents passes at the time of the contract, whether the delivery of either or both takes place then or not. The delivery is a mere incident to the contract, and is of no importance in itself, as affecting the rights of property, which each of the parties has acquired by the contract. After the contract is made, the horse belongs to its purchaser, as much before it is delivered to him as afterwards; and, by the same rule, the money belongs to its purchaser as much before it is delivered, or “paid” to him, as afterward. The same is true in regard to the sale of land. The right of property in the land passes at the time the contract is made, or the deed given, though the possession of the land itself be not delivered until a subsequent time. And, of consequence, the right of property in the equivalent, the consideration, the money, for which the land is sold, or exchanged, passes also at the time of the contract, though this equivalent, or money itself, be not delivered, or paid, until a subsequent time—else the contract would not be mutual, reciprocal, or equal, and the seller of the land would have parted with his right of property in the land, without receiving any consideration therefor—that is, without receiving any equivalent right of property in exchange. The delivery of money, then, on a note or contract made previously to the delivery, corresponds with a delivery of the possession of land, on a deed that has been previously given. The delivery has nothing to do with the right of property in either case—for that (the right of property) has previously passed, to wit, at the time the contract was entered into.

What we call “paying” money on a note, is the mere delivery of money that has been previously sold and paid for, and the right of property in which has previously passed to the purchaser. And it is solely because the money has been previously sold and paid for, and the right of property in it has passed to the purchaser, that the money itself is paid, or delivered. It is because the money has been previously bought by another, and therefore belongs to him, is owned by him, is, in fact, his property, that it is paid, or delivered to him. If it be not paid to him for this reason, or if it be not his property before it is delivered, the delivery is a gratuity; it is what he cannot claim as a right—for plainly a man cannot claim, on a contract, that property be delivered, or paid to him, as his, unless he has, by the contract, first acquired the ownership of it.

Contract rights to things, then, are actual bona fide rights of property in and to the things contracted for. No other intelligible meaning can be given of contract rights to things. A right to a mere promise, or a merely moral claim to the fulfilment of a promise, is nothing in law. The law, that governs men’s title to property, cannot take notice of any such uncertain, intangible, and speculative rights, as that of a merely moral claim to the fulfilment of a promise, if such a claim, (depending, as it may, upon a thousand contingencies not in their nature susceptible of proof,) can be called a right. The law, in regard to property, can take notice of nothing less delinite, certain, or tangible, than actual, proprietary rights, in actual, existing things. And unless a man acquire a right of property in a thing, by his contract, he acquires, legally speaking, no right at all by his contract. There is no other legal right to or in things, that he can acquire by contract. And this proprietary right is acquired—in all cases when it is acquired at all—the moment the contract is made; whether it be agreed that the delivery shall take place at that, or a future time. And this principle applies as well to money that is sold for a horse, or for land, and is agreed to be delivered, or paid, at a future time, as it does to land, or a horse, that is sold for money, and is agreed to be delivered at a future time.*

But perhaps it will be said that the words, “I promise,” which are contained in the note, are not contained in the bill of sale of a horse, or deed of land; and that these words indicate some essential difference in the nature of these different contracts.

But the words, “I promise,” are no essential part of the contract. Nor is a formal promise in any case essential to the validity of a debt—that is, to the obligation to deliver money that has been sold and paid for. A man may make as many naked promises to pay money, as he pleases, and they are of no obligation in law. On the other hand, if a man have received value from another, with the understanding that it is not a gift, or that an equivalent is to be paid for it, the debt is obligatory—that is, the obligation to deliver the equivalent is binding—whether there be any formal promise to pay or not. This we see in the case of goods sold, and charged on account. And the obligation to deliver the equivalent consists in this—that it, (the equivalent or money,) has been bought and paid for, and now actually belongs to the creditor, or purchaser, as a matter of property. The promise, then, is a matter of mere form in any case, and of no importance to the validity of an obligation to deliver an equivalent, that has, by contract, (consent,) been exchanged for value that has been received. It may be important as evidence of the contract; but it is no part of the contract itself; that is, it, of itself, conveys no rights of property to the promisee, and no rights of any kind, to the equivalent promised, which he would not have without any formal promise.

But it may be said, (and this is the language of the lawyers,) that where a man has paid a consideration for a promise, there the promise is binding. But the truth is, (as has before been stated,) that a man never pays a consideration for a promise. He simply pays an equivalent, a price, or consideration, for the thing promised. And his right of property to the thing promised, of course, attaches at the time of the contract—at the time he pays the equivalent for it—or it can never attach at all. And then the promise to deliver, or pay it, (the thing promised,) is made solely as evidence that it (the thing promised) has been sold, and now belongs to the promisee as a matter of property.

A promissory note, then, that is given for money, is, in its essence, precisely like a bill of sale, that is given of a horse, and that contains an agreement to deliver the horse at a future time; or it is precisely like a deed that is given of land, and that embraces an agreement, or memorandum, that the possession of the land is to be given at a future time. The language of these three contracts are, in their legal purport, essentially the same. For instance. The promissory note runs thus.

“Thirty days from date I promise to pay A. B. one hundred dollars, for value received.” Signed C. D.

The bill of sale runs thus.

“A. B. bought of C. D. one horse, to be delivered in thirty days from date. Received payment.” Signed C. D.

The deed of land runs thus.

“In consideration of one hundred dollars, paid by A B, the receipt of which is hereby acknowledged, I hereby grant, sell, and convey to A B, one acre of land, possession to be delivered in thirty days from the date hereof.” Signed C. D.

What difference is there in these three contracts, so far as a conveyance of proprietary rights to the thing promised to be paid, or delivered, is concerned? Obviously none whatever. The bill of sale says, in substance, that the horse has been sold, and that the “payment,” the value, or the equivalent, has been “received;” and that the horse—which, having been thus sold and paid for, now of course belongs to the purchaser—is to be delivered to him in thirty days. The deed says that the land is sold, and its equivalent, or “consideration,” has been “paid” and “received;” and that the possession of the land—(which, having been thus sold and paid for, now of course belongs to the purchaser)—is to be given in thirty days. The note says that the “value”—that is, the equivalent, the “payment,” the “consideration,” for the money promised, has been “received,” (which implies that the money promised has been sold, and now belongs to the purchaser,) and that the money is to be delivered, or paid, in thirty days.

What possible ground is there for saying that the right of property in the land, or in the horse, is conveyed by the contract expressed in the foregoing deed, or bill of sale, and that the right of property in the money, (or in an amount of value sufficient to purchase the money,) is not conveyed by the contract expressed in the note? None, none whatever.

Suppose A and B should make a contract with each other for the exchange—or, what is the same thing, for the mutual purchase and sale—of an hundred dollars in money, and a horse; that is, A should sell to B a horse for an hundred dollars in money, and B should sell to A an hundred dollars in money for a horse; and that both the money and the horse are to be delivered in thirty days from the time of the contract. The promise of one would be to “pay” the money in thirty days, and of the other to “deliver” the horse in thirty days. Yet do not these mutual promises, or undertakings, mean precisely the same thing? And is not the contract, on the part of each, precisely the same throughout, that it is on the part of the other? The horse is the equivalent of the money, and the money of the horse. The money is sold for the horse, as much as the horse is sold for the money. And the horse buys the money, as much as the money buys the horse. The bargain is reciprocal and equal in every respect. The mutual purchase and sale have been a mere exchange of the rights of property in certain values, or equivalents. Why, then, attach a different meaning to the word “pay,” when applied to the money, from what we attach to the word “deliver,” when applied to the horse? Why say that the right of property in the horse passes to the purchaser of the horse at the time of the contract, but that the right of property in the money, (or in an amount of value sufficient to purchase the money,) does not pass to the purchaser of the money until the delivery, thirty days afterwards? Clearly there is no reason for it. Evidently, the right of property in one equivalent passes at the same time that the right of property in the other equivalent passes, to wit, at the time of the contract, without any regard to the time of the delivery.

The real, equitable, bona fide right of property in each of these articles, (the horse and the money,) is exchanged by the contract, and therefore necessarily passes at the time of the contract. The possession merely of each remains with the seller for thirty days. All will agree that the right of property in the horse passes at the time of the contract, and that the possession merely remains with the seller during the thirty days. Why does not the right of property, in the hundred dollars, (or in an amount of value equivalent to the hundred dollars,) pass equally at the time of the contract, and the possession merely remain with the seller of the money for thirty days? The mutual purchase and sale of the horse and the money is a mere exchange of equivalents—a reciprocal and equal contract; and precisely the same rights of property, which pass to the purchaser of the horse, pass also to the purchaser of the money. Certainly, if the right of property in the horse, passes to the purchaser of the horse, by force of the contract, and at the time of the contract, the same right of property in the money passes also to the purchaser of the money, by force of the contract, and at the time of the contract. No proposition, in law, it seems to me, can be more self-evident than this.

Well, then, supposing this point to be established, that the right of property, in money that is promised—or rather in an amount of value existing, in some shape or other, in the hands of the debtor, sufficient to purchase the amount of money promised—passes to its purchaser at the time the contract is entered into, instead of the time of delivery—what follows?

From the time that property is sold, until it is delivered, the seller is the mere bailee of the purchaser; and the property itself is at the risk of the purchaser, unless the seller be guilty of some fault, or culpable neglect, in regard to the custody or use of it.

For instance. In the case before supposed, where A sells to B a horse, for an hundred dollars, giving him a bill of sale thereof; and B sells to A an hundred dollars for the horse, giving him a promissory note therefor—the horse and money to be each delivered to their respective purchasers in thirty days from the time of the contract—A holds the custody of the horse, for those thirty days, as the bailee of B. And if the horse, during those thirty days, die, be stolen, or otherwise lost or injured, by any of the casualties to which horses are liable, without any fault, or culpable negligence, on the part of A, the loss falls upon B, the purchaser. All lawyers will agree that this is the law in regard to the horse. On the same principle, then, that A is the mere bailee of the horse for those thirty days, B is the mere bailee of the money, (or of an amount of value equivalent to the money,) during the same time; that is, this money or value remains in the hands of B, for his use, the real ownership being in A; and if the money, during the thirty days that it is to remain in the hands of B, for his use, be lost by fire, or theft, or any of the accidents, or any of the casualties of trade, to which money is liable, without any fault, or culpable negligence on the part of B, the loss falls upon A, the purchaser and real owner of the money. Clearly the same principles apply to both the articles, horse and money. The right of property in each has been exchanged for the right of property in the other; and the custody and use of each are to remain with its seller for thirty days. Each purchaser, of course, takes the same risk as the other, of the commodity he has purchased, while it remains in the hands of its seller.

If A, the seller of the horse, while the horse remains in his possession, after the sale, should use it in any mode different from what it was understood that he should use it; or should neglect to take such reasonable care, in the use and treatment of the horse, as good faith towards the owner of the horse required of him; and should thereby be the cause of injury or death to the horse, he (the seller) would be still liable for the value of the horse; not, however, on his contract, nor in an action of trover for the horse itself, but in an action on the case for damages, for the loss occasioned by his fault, as has before been explained. By the same rule, if B, the seller of the money, while it remained in his possession, should intentionally or negligently expose it to any other than the usual risks, to which it was understood that it was to be exposed, and thereby the money should be lost, then he (the seller of the money) would be still liable to the owner of it for the amount; not, however, on his contract, nor in an action of trover for the money itself, but in an action on the case for damages, for the loss occasioned by his fault.*

But if A, the seller of the horse, used the horse with such reasonable care, while it remained in his possession after the sale, as the law of bailments and good faith towards B; the owner of the horse, required of him, and the horse, nevertheless, came to injury or death, B, the purchaser and owner of the horse, must bear the loss. By the same rule, if B, the seller of the money, use such care in the preservation and management of it, while it remains in his possession after the sale, as the law of bailments and good faith towards A, the purchaser of the money, require of him, and it (the money) should, nevertheless, be diminished or lost, A, the purchaser and real owner of the money, must bear the loss.

Now the only objection which the lawyers will raise to this doctrine, or to the application of the principles of bailee and bailor to the cases of debtor and creditor, is simply this: They will say that the specific property, to which the contract of debt (at the time it is entered into) attaches, may, before the time agreed on for the delivery, be exchanged, by the debtor, for other property; and that the same contract, which attached to the original property, cannot attach to the new property for which that is exchanged.

They get this false idea from looking solely at the general rule in regard to bailments, and keeping the exceptions and qualifications to the rule out of sight; when, in fact, these exceptions and qualifications cover nearly or quite as many cases, in actual life, as the rule itself. For instance: the general rule, in bailments, is, that the specific thing loaned or entrusted to the bailee, is to be restored to the bailor. The exceptions or qualifications are, where there is either an express or implied authority given to the bailee to exchange the property bailed for something else. Wherever there is either an express or implied authority given to the bailee to make such exchange, the same right of property which the bailor had in the original commodity bailed, attaches to the new commodity, or equivalent, for which that has been exchanged. In the cases of the various kinds of commercial agencies, where the agent is entrusted with commodities of one kind, to be exchanged by him for money, or other commodities, the right of property in the money or other commodities, received by the bailee as the equivalent of the commodities bailed, vests in the bailor on the instant of the exchange, and never becomes vested in the bailee. In many, perhaps in the larger number of cases of commercial agencies, the bailee receives express anthority for making the exchange; but not in all, nor nearly all. In many cases the authority is implied from collateral facts. And an implied authority is as good, in law, in any case whatever, as an express authority. All that is necessary, is, that there be valid grounds for the implication.

Considering, then, the relations of debtor and creditor to be those of bailee or bailor, are there any valid grounds for the implication of an authority, from the creditor to the debtor, to exchange, and traffic with, the property bailed, or loaned to the debtor?

There are several.

1. Inasmuch as the contract makes no designation of the particular form in which the value, to which the contract attaches, exists at the time the contract is entered into, it, of course, prescribes no particular form in which it must exist at any time, except at the time of delivery, when it must be in money. Since, then, there is, in the contract, no express or implied requirement that the debtor shall retain the value in any particular form, it impliedly allows him to use all reasonable discretion as to the form in which it will be expedient to keep it. And such a discretion allows him to convert it, by exchanges, into such different forms as a prudent and careful man might reasonably deem beneficial. Unless he were allowed this discretion, he would not be allowed to convert it from a perishable commodity into a durable one; nor from an unproductive into a productive one.

2. The capital loaned, is loaned to be used. This must always be presumed, because no other reasonable motive for the loan can be supposed. And if it be loaned to be used, and the form in which it is to be used is neither expressed nor implied by the contract, (as is the case in the instance of a promissory note,) it must be presumed that it was intended, by the creditor, that the debtor should use it in such manner as prudent men use their own capital. And as the habit of prudent men is to convert their own capital, by exchanges, or traffic, from one form into another; and as, in many kinds of business, they are obliged to do so, to derive any profit from their capital, it must always be presumed, (in the absence of any express or implied prohibition,) that the debtor was to be allowed the same discretion in the management of the loan, and in converting it from one form into another, by traffic, as prudent men exercise in the management of their own capital.

3. The contract of debt never describes the particular form, in which the amount of value, to which the contract attaches, exists at the time the contract of bailment or debt is entered into; but only the form in which it is finally to be delivered, to wit, that of money. The contract, therefore, only implies that the amount of value exists, in some shape or other, in the hands of the debtor. If, therefore, the debtor have not money for the contract to attach to, at the time it is entered into, it must attach to value existing in some other form, else it would attach to nothing, and therefore be void. When, then, the contract does attach to value existing in some other form than money, it certainly implies an authority to exchange the commodities, (in which the value is invested,) for money, at least, if for nothing else; because the contract expressly prescribes that the value to which the contract attaches shall finally be delivered to the creditor in the shape of money, and the debtor, therefore, could not fulfil his contract, unless he could convert this value into money. And if the debtor is authorized to convert into money, the value to which the contract attaches, there is no reason, that I know of, why he has not all fair and reasonable discretion as to the mode of converting it into money; nor why he may not do it by means of half a dozen intermediate exchanges, if he thinks he can thus do it more advantageously.

4. If the value, to which the contract attaches, do exist in the shape of money at the time the contract is entered into, (as in the case where money itself is loaned, and the debtor has no other property, than the loan, for the contract to attach to,) then the contract certainly implies an authority to exchange that money for other commodities, and those commodities back into money; because the money is obviously loaned to be used; as is proved by the facts, that no other reasonable motive for the loan can be supposed, and that, in most cases, the debtor agrees to pay interest for its use, which he could not afford to do unless the money were to be made productive to him. Now money itself can neither be used, nor made productive, in any other way than by being exchanged for other commodities, or by being wrought into some other shape than coin. These facts, then, are enough to prove that it must have been the intention of the lender, or bailor, that the borrower, or bailee, should be at liberty to exchange the money loaned, for other commodities. And then the fact that the amount of value, promised to be paid to the creditor, is finally to be delivered to him in the shape of money, proves that the debtor has the consent of the creditor to convert these other commodities back into money again.

Whether, therefore, the contract of debt attach, at the time it is entered into, either to value existing in the shape of money, or to value existing in any other shape, (not designated in the contract,) the contract and the collateral facts imply an authority to the debtor to traffic with the property or value to which the contract attaches. And, if this be the fact, then the rights of the creditor, or bailor, follow this value, and cling to it, in every form that it may pass through, in the hands of the debtor, from the time the contract is made, until it is finally delivered, or repaid to him, (the creditor,) in the shape of money.

If it have now been shown that the true relation subsisting between debtor and creditor is merely the relation of bailee and bailor; that a debtor is merely one who has sold value to another, and retains the possession and use of it for a time after the sale; and that the legal obligation of the debtor to pay money, and the legal purport of his promise to pay money, for value that he has received, are merely an obligation and promise to deliver money, which he has sold and received his pay for, and the right of property in which has already passed to the creditor, it follows that the creditor’s right, acquired by his contract, attaches to nothing except to such property as actually existed in the hands of the debtor for the contract to attach to, at the time the contract was made, and to such other value as may have become indistinguishably mixed with it, between that time and the time agreed upon for its delivery or payment. And from these several propositions it also follows, that at the time a debt becomes due, a creditor has no claims, by virtue of his contract, upon anything except what remains of the property that he purchased by his contract, and upon such other value or property as may have become indistinguishably mixed with it, (unless the debtor have been guilty of some fault or culpable neglect in the use or custody of it, whereby it has been diminished or lost.)

The utmost extent, therefore, of the creditor’s claim, (when the debtor has been guilty of no fault, neglect, or bad faith, in the custody or use of the property loaned to him,) is to the property actually existing in the hands of the debtor at the time the debt becomes due. He has a prima facie claim to the whole of this,* if it be necessary for the satisfaction of his debt. But if it be insufficient for the satisfaction of his debt—that is, if his purchase have been diminished in value or amount, while in the custody of the debtor, (without any fault or culpable neglect on the part of the debtor,)—he, the creditor, must bear the loss. The contract is extinct, fulfilled, on the delivery of whatever remains of the property originally bailed to the debator. And if the whole of the value bailed have been lost, without the fault of the debtor, the loss falls on the creditor.

There is no escape from this conclusion but by denying that the contract attached to anything at the time it was made. And such a denial, instead of proving that the debt was obligatory beyond the debtor’s means of payment, would only be equivalent to a denial that it ever had any legal validity at all. In order to maintain the validity of the contract, we must maintain that it attached to something—that is, that it conveyed to the creditor a proprietory right to some value existing in the hands of the debtor at the time the contract was entered into. And if the contract had any validity—that is, if it attached to anything—at the time it was entered into, its validity lived only in the life of the value, or property to which it attached; and when that value expired, or became extinct, the contract, or, in other words, all the rights which the creditor acquired by virtue of his contract, necessarily expired with it.

Taking it for granted that it has now been shown that a debtor is, in law, the mere bailee of his creditor, it may be important to repeat the statement of the principle, by which this bailment operates as a lien upon the whole property of the debtor, even though his property be many times greater than the debt. The principle is this. Suppose the debt to be one hundred dollars; and the whole amount of property, in the hands of the debtor, to be one thousand dollars. The contract attaches to and binds so much value, or property, in the hands of the debtor, as will bring one hundred dollars. But the contract does not designate the particular form, in which the value, or property, to which it attaches, exists. It, therefore, attaches to it in every form, as it exists in the hands of the debtor; simply because it cannot be shown that it attaches to that which exists in one form, any more than to that which exists in another form. Any portion, therefore, of the debtor’s property, or the whole of it, if it should be necessary, is liable to be taken for the satisfaction of the debt; and this liability of the whole makes the debt a lien upon the whole. It is on this principle that a mortgage on land, for but a tenth part of the actual value of the land, is a lien upon the whole.

A promissory note, or other personal debt, where there is no designation of the particular articles of property, to which the contract attaches, is, in fact, a sale of all the property the debtor has in his hands, subject to his right of cancelling the sale by paying the amount of the debt in money, just as a mortgage is a sale of the land mortgaged, subject to the right of the debtor to cancel the sale by paying in money the amount for which the mortgage is given.

In other words, a contract of debt, without any designation of the specific property to which the contract attaches, is a contract by which the debtor pledges his whole property for the delivery, or payment of the amount sold out of it to the creditor, viz., the amount of the debt. Such a pledge gives the creditor a special, or conditional ownership of the whole property pledged; and the debtor thenceforth holds the whole property as the bailee of that portion of its value, which actually belongs to the creditor, and is merged in the value of his, (the debtor’s) whole property.

If the point be now established, that a debt is a lien upon the whole property of the debtor; and if the debtor is the mere bailee of the amount of value sold and belonging to the creditor, it becomes necessary to show on what grounds it is, that the debtor has the right to appropriate, for his subsistence, any portion of the property on which his creditor holds a lien. Where a debtor has mortgaged land to his creditor, he, (the debtor,) has no right to sell any portion of that land, not even to provide himself with food. Why is it different in the case of the lien created by a personal debt, upon the whole property of the debtor? The reason is, that there is an implied permission, given by the creditor to the debtor, to appropriate enough of the property in his hands for his subsistence—subject to the condition that the debtor shall apply his care and labor to the increase and preservation of that property. This permission is to be implied from the following facts:

1. It is a self-evident fact that the debtor and his family must live; and being a self-evident fact, it must have been taken for granted by the creditor as a part of the contract—because all self-evident facts having any bearing on the contracts, are taken for granted in all lawful contracts.

2. If the debtor and his family must live, it is self-evident that they must derive their subsistence, either by selling their labor for wages, (independently of any property in their hands;) or by bestowing their care and labor upon the property in their hands, and taking their subsistence out of it, and its proceeds.

Now it is evident that the contract does not contemplate that the debtor is to sell his labor for wages to the neglect or disuse of the property loaned to him; for the only reasonable motive that can be supposed for the loan, is, that the debtor may use the capital loaned, that is, that he may bestow his labor upon it. And if he bestow his labor upon it, it follows that he must meanwhile take his subsistence out of it—because, while bestowing his labor upon it, he cannot be selling his labor for wages, and of consequence cannot derive his subsistence in any other way than from the property in his hands. And as the creditor’s lien extends to all the property in his hands, it follows that the debtor must take his subsistence out of that to which the lien attaches—simply because there is no other property in his hands for him to take it out of.

In all this there is a strong analogy to the case of a lien on land—for there the debtor takes the produce of the land for his subsistence; which is hardly distinguishable in fact, and is not distinguishable in principle, from taking the land itself—inasmuch as the crops exhaust the fertility, and consume the value of the land.

3. The contract evidently supposes that the debtor, while laboring, is to have enough of the fruit of his labor for his subsistence, (because a man cannot labor without a subsistence;) that his labor is to be bestowed upon the capital on which the creditor has a lien; and, of course, that the value of his labor is to become incorporated indistinguishably with that of the capital. It follows that it must have been understood, both by debtor and creditor, as a self-evident matter, that the debtor, while laboring, should appropriate enough of the property in his hands for his subsistence, because without his subsistence, he could not bestow his labor upon the capital.

4. The nature of the contract proves that the creditor is interested in the labor of the debtor, because, at a given time, he (the creditor) is to receive the capital loaned, with increase. This, of course, the debtor could not afford, nor the creditor expect, unless the debtor were to bestow his labor upon the capital. And if he bestow his labor upon the capital, he must, of necessity, have his subsistence meanwhile. And as his contract is a lien upon everything in his hands, it must of necessity have been understood that he should appropriate his subsistence out of the property that is subject to the lien.

In short, the contract proceeds throughout upon the supposition that the subsistence of the laborer, while laboring on capital, must be provided for out of the capital on which he labors. And this supposition is not merely a reasonable, but it is a necessary one—for it is obvious that his subsistence must be thus provided for, whether he hold the relation of debtor to the capitalist, or that of a laborer for wages. In either case, his subsistence, while laboring, must be a tax upon the capital on which he labors.

In all this there is nothing that authorizes waste or prodigality on the part of the debtor; or that authorizes anything except what is consistent with such economy and frugality as good faith towards the creditor requires. But this point has been sufficiently explained in the preceding chapter.

Halting at this point, and looking back upon the ground we have gone over, does not that ground present a more rational view of the nature of debt, than any that has ever been practised upon by courts of law? Is it not the only view that can make the contract of debt consistent, either with morality, or with the ideu that creditors acquire any tangible, legal rights, to actual things, by virtue of that contract?

This view of the contract of debt places the debtor and creditor, to a certain extent, in the relation of partners. The creditor furnishes capital, the debtor labor. The separate values of this capital and labor become indistinguishably mixed—that is, the labor bestowed upon the capital adds to its value, by converting it into new forms—as, for instance, by converting leather into shoes. The debtor, while thus bestowing his labor upon the capital, receives his subsistence out of the mass; in other words, his subsistence, while laboring, is the first charge (as in all cases it necessarily must be) upon the combined capital and labor. The creditor holds the next lien upon this combined capital and labor, for the amount of his investment, and his stipulated profits. The debtor is entitled to the residue, if any there be, as the reward of his labor. During the partnership, the creditor holds the debtor to the observance of economy and good faith. Under these circumstances, both parties take the natural risks of the business. The creditor risks his capital, the debtor his labor.*

All this is obviously a joint operation, a bona fide partnership. The creditor, as well as the debtor, is to derive a profit from it. The prospect of profit is the creditor’s only motive for entering into the contract. The debtor, therefore, becomes a bailee, not merely for the benefit of himself, but also for the benefit of the creditor. What is there in morality, or in the legal rights of the parties to the capital and labor thus combined, that requires the debtor to take the risk, both of his own labor, and of the creditor’s capital, beyond the due exercise of his skill, industry, care, and good faith in the preservation and management of the latter?

The creditor adopts this mode of employing his capital, as being the most advantageous to himself. He has more capital than his own labor can advantageously employ. He must, therefore, in order to make his capital productive, either loan it to others, or employ the labor of others upon it, by hiring them, and paying them wages. He considers that, by loaning it, and offering the debtor an inducement to the exercise of his best skill, by a contract that gives to the debtor all the proceeds of the joint labor and capital, except a stipulated amount, (called interest,) he will better stimulate the laborer’s industry, skill, and care, and thus reap a better profit to himself, than he will if he hire the man as a laborer for wages. And this is the reason why he loans his capital, instead of hiring the labor necessary to employ it. But there is nothing in all this, that morally or legally entitles his capital—while it is in the hands to which he has thus, with a view to his own profit, chosen temporarily to entrust it—to an insurance against the necessary risks to which capital is always liable. Nor is there anything in all this, that morally or legally entitles him to make this bailee, and partner, his slave for life, in case of any misfortune to the partnership business, by which both his capital and the debtor’s labor should be lost. Nor is there in all this, anything that gives him any tangible, legal, proprietary rights, to property that his partner and bailee may earn after the partnership, or bailment, shall have terminated.

WHO CAUSED the REDUCTION OF POSTAGE? OUGHT HE TO BE PAID?

WHO CAUSED the REDUCTION OF POSTAGE?

OUGHT HE TO BE PAID?

BOSTON:

WRIGHT & HASTY’S PRESS, NO. 3 WATER STREET.

1850.

Entered, according to an Act of Congress, in the year 1850, By LYSANDER SPOONER, In the Clerk’s Office of the District Court of Massachusetts.

TO THE PUBLIC.

The reduction of postage, which was made in 1845, was forced upon Congress, against the determined opposition of that body, by the establishment of private mails, and such an exposure of the unconstitutionality of the laws prohibiting private mails, as satisfied Congress of their inability to suppress the competition, and preserve the revenues of the Post-Office Department, otherwise than by the reduction of the government postage. And they accordingly reduced the postage to a point that made competition unprofitable, without even bringing the constitutionality of their prohibitory laws to the test of a decision by the Supreme Court.

The further reduction, made by the law of 1851, is but a natural consequence of the former one—it being proved, by the surplus revenue that accrued under the act of 1845, that a low rate of postage will pay the expenses of the Department.

The first reduction was forced; the second was the result of the surplus revenue that accumulated under that forced reduction.

Whoever, therefore, caused the first reduction, is the real author also of the second—and thus of the whole reduction—that is, from the original rates of 6¼, 10, 12½, 18¾, and 25 cents, for each piece of paper, (less than four,) to an uniform rate of three cents, the half ounce, for all distances, within the United States, if prepaid, or five if not prepaid.

The law of 1851 also provides that so soon as the revenue of the post office Department shall exceed the expenditures by five per cent in a year, the postage shall be reduced to two cents the half ounce.

The laws both of 1845 and 1851 also make large reductions in the postage of newpapers, circulars, periodicals, and pamphlets.

The subscribers present to the public the following “Letter” and “Statement” of Lysander Spooner—together with a copy of his argument of the “Unconstitutionality of the Laws of Congress Prohibiting Private Mails,”—as proof that Mr. Spooner has been the principal, and by far the most efficient agent in effecting the reduction of postage.

Our object, in presenting this evidence, is to submit to the public the question, whether the accomplishment of so great a service, by Mr. Spooner, does not demand some compensation at the hands of those who are enjoying the fruits of his exertions?

The English people, by voluntary contribution, gave to Rowland Hill, a munificent testimonial of their gratitude for his services in reducing the postage. The English government also honorably rewarded him. Shall Mr. Spooner go entirely unrewarded?

Mr. Spooner’s claims to a compensation, are enhanced by the fact that, in his contest with the government in 1844, (which caused the first reduction of postage,) he became involved in debts which he has hitherto been unable to discharge. We cannot believe the public will be content to enjoy the fruits of such a service, and make no remuneration for the exertions and losses by which it was accomplished.

It will be seen by the “Letter” and “Statement” of Mr. Spooner, and the evidence he produces in support of them, that he published his argument in January 1844, and established his private mails in the same month—avowing, in his public advertisements, his “intention thoroughly to agitate the question, and test the constitutional right of free competition in the business of carrying letters,” if he should be sustained in his enterprise by the patronage of the public. This patronage was not extended to him, in a sufficient degree to meet the expenses of his mails, and of the conflict which the government carried on against him. And in six or seven months he was obliged to surrender the business—but not until the principle which he had established by argument, had become so far fixed in the public mind as to make the suppression of the private mails impossible, otherwise than by a reduction of the postage.

The merit of Mr. Spooner consists in his being the first to establish by argument the unconstitutionality of the laws prohibiting private mails, and the first to establish mails on that principle, and challenge the government to test the question—whereby a reduction of the postage was coerced.

That Mr. Spooner’s argument, and the establishment of his mails, had the merit and the efficacy we have ascribed to them, we subjoin the following opinions expressed by the press, and by distinguished legal gentlemen:

The New York Express (January 13, 1844,) says of the argument, “The writer has certainly made out a very strong case.”

January’ 30, 1844, the same paper called it “A very able argument,’ and said “We do not see how it can be got over.”

February 7th, 1844, the same paper said, “Mr. Spooner has discussed that great question with surpassing ability.”

The New York Tribune (January 18, 1844,) said, “This pamphlet deserves attention. It is certainly an able statement of one side of the subject, and the people may find after all that the Postmaster has stretched a point in the constitution.”

The New York Evening Post (January 29, 1844,) called it “A very able pamphlet,” and said, “We hold with Mr. Spooner in this matter.”

The New York Journal of Commerce (February 29, 1844,) said, “It has been concurred in by the general voice of the legal gentlemen who have examined it.”

Hon. Rufus Choate certifies that he “had occasion to examine it carefully,” and that “the author’s leading and important position, that all laws prohibiting private mails were unconstitutional, was maintained with a force and cogency, calculated, under the obvious limitations applicable to it, to convince every unbiassed judgment.”

Hon. Franklin Dexter certifies that he “considers it as quite unanswerable;” that “as U. S. District Attorney,” he “had occasion to consider it carefully, and could make no answer to it satisfactory to himself.”

Hon. Simon Greenleaf, (late Law Professor in the Cambridge Law School,) certifies that he has read it, and “should think it a very difficult work to refute it.”

Hon. Benjamin F. Butler, (late U. S. Attorney General,) although, out of deference to the practice of the government, he forbears to say the laws prohibiting private mails are unconstitutional, yet says that Mr. Spooner’s “argument goes very far to show that no power to pass any such laws has been delegated to the Congress of the United States. If the question were a new one, I should expect the courts to repudiate the claim of the Federal Government to any such authority.”

Judge Story, in June 1844, (five months after the publication of Mr. Spooner’s argument,) on the trial of a case for the violation of the Post-office laws, said, (as reported in the Boston Daily Advertiser of June 18,) that “there were many difficulties in maintaining in the United States any exclusive right to establish post-offices and post roads.”

Senator (now Judge) Woodbury, February 6, 1845, (about one year after the publication of Mr. Spooner’s pamphlet,) said in the Senate of the U. S.: “Were the question a new one at this moment, the whole restrictions on private enterprise and private competition in carrying letters themselves, could not stand an hour.”

Senator Simmons said February 6, 1845, in the Senate of the U. S.. “The power to establish a mail was not given to enable the government to make exorbitant charges for service, much less to enable it to enforce a compliance with them, if made.”

Hon. Mr. Dana, M. C. of New York, said in the U. S. House of Representatives, February 25, 1845. “The validity of that (the government) monopoly is not beyond all doubt. Stake not the Department, under present circumstances, upon the hazard of a law suit. Prejudice is too strong against you. Success is almost impossible; victory is useless; defeat ruin.”

We think these opinions of Messrs Story, Woodbury, Simmons, and Dana, are fairly to be attributed to Mr. Spooner’s argument—inasmuch as such opinions, (so far as we know,) had never before been heard from the Bench, or in Congress.

We think also, that the reduction of the government rates, without bringing the constitutional question before the Supreme Court, is a virtual admission, on the part of Congress themselves, that they did not feel it safe to subject the constitutionality of their prohibitory laws to the investigation of that tribunal; otherwise they would not have succumbed to such a defiance of their authority, without bringing the question to a judicial decision, as the Postmaster General was invited by Mr. Spooner to do.

Mr. Spooner’s “Statement,” which follows this card, will be found to contain numerous extracts from debates in Congress, and from reports of the Post-office Committees, all showing conclusively that the necessity of getting rid of the competition of the private mails, and the acknowledged impossibility of doing it otherwise than by a reduction of postage, were the motives which induced Congress to make the reduction in 1845.

It is on these grounds that we think that Mr. Spooner’s argument, and the establishment of his private mails, (with other private mails, which grew up, as we think, mainly under the protection of his argument and example,) were the immediate and most efficient causes of that reduction.

Hon. Simon Greenleaf certifies that “the reduction of postage (in 1845) seems justly attributable to his (Mr. Spooner’s) exertions.”

Judge Kent, of New York, certifies that “one thing is certainly evident, that Mr. Spooner has displayed talent and energy in obtaining a reduction of the charges of postage, and deserves the gratitude of all of us for the obtaining of a great public benefit.”

Hon. Benjamin F. Butler says, “That your (Mr. Spooner’s) efforts have largely contributed to awaken attention to this great interest, no man can deny. And whatever I may have thought of them, before my recent perusal of your pamphlet, (published by you in 1844,) I am now satisfied that you were induced to engage in those efforts under a deep conviction of the unconstitutionality of the laws with which they conflicted, and that you may, therefore, be regarded as having rendered, in this matter, good service to the country.”

Hon. Robert Rantoul, Jr., says, “I think Mr. Spooner entitled to the gratitude of his country for his able and efficient labors to illustrate the constitution, and to facilitate correspondence.”

Hon. William H. Seward also says, in reference to the same services, “I am quite satisfied that Mr. Spooner desrves well of the country, and of the age.”

For further evidence of the efficiency of Mr. Spooner’s efforts in effecting the reduction that was made in 1845, we must refer to his “Letter” and “Statement,” which follow this card; and especially to the extracts he has given from the report of the Postmaster General, the reports of Committees, and the Debates in Congress. And we take leave to repeat that the reduction of 1851 is a legitimate result of the reduction of 1845, and is therefore attributable also to Mr. Spooner’s exertions.

It is due to Mr. Spooner to say that he was not the first to suggest this contribution. At the time the new postage law went into operation, in 1845, it was proposed to him that the public be called upon to remunerate him for his services in bringing it about; and he was requested to prepare such a statement of the facts as was necessary to be laid before the public for that purpose. He then declined, from motives of delicacy, to furnish the statement, and the matter was necessarily dropped. It has since been proposed to him again; and a sense of duty to himself and his creditors, has induced him to furnish the “Statement” which follows.

From the mercantile, manufacturing, banking, and professional community, who have already realized large sums from the reduction of 1845, and who will realize similar profits from the one of 1851, we are confident something liberal may be expected. We trust also that other persons, whose savings have been, and will be less, will yet feel it a pleasure and a duty to contribute such small sums, (one dollar each, for instance,) as, if numerous as we think they ought to be, will, in the aggregate, make up a testimonial that will honorably mark the public gratitude for so great a service as the reduction of the postage.

As it will necessarily be impossible for agents to visit all those, who may be disposed to contribute, we invite each person, without waiting for further solicitation, to send his contribution, by mail, to “Lysander Spooner, Boston, Mass.”

In the cities we invite the merchants to move in the matter, by sending their contributions individually, or by acting collectively, as may seem to them proper.

In each village, where many will be disposed to contribute sums too small to be sent singly by mail, will not some public spirited individual take it upon himself to act as a collector of contributions, and forward them as above directed?

To ensure the success of the objects in view, it is important that each one should feel the obligation to do his own part, and not omit it, in the confidence that others will be more just or liberal than himself.

P. S. Will not editors, whose interests have been largely promoted by the reduction of postage, give the foregoing card an insertion, with such comments as the facts given in the following “Letter” and “Statement” may seem to them to justify?

LETTER.

Boston, 1851.

M. D. PHILLIPS, Esq.,

Dear Sir:—

You were pleased to suggest to me, as have many others, that the public were indebted to me for the Cheap Postage Law, that was passed in 1845. And you and others have proposed that those persons who have realized large savings from the reduction of postage, be requested to recognize the obligation. With this view you have desired me to put on paper the facts necessary to enable the public to understand my agency in the matter.

The question of indebtedness and obligation, on the part of the public, is one to be settled by each individual for himself; but the following pages will probably satisfy those who may read them, of these facts, viz: That I was the first to prove by argument—certainly the first to prove to the satisfaction of any considerable portion of the public—that Congress had no Constitutional power to forbid the establishment of mails, by the States, or by private individuals, in competition with the mails of the United States; 2, that I was the first to establish mails on that principle, and invite the government to test the question before the judicial tribunals; 3, that these events were followed by a recognition of the correctness of the principle, by an important portion of the bar, the press, the people, and, in one instance, by the bench, (Judge, Story,) and, in another instance, in the Senate, (by Levi Woodbury; 4, that numberous other private mails were speedily established, whose operations, by diminishing the revenues of the general Post office, threatened the Department with bankruptcy; and, finally, that Congress were compelled, in order to save the Department from becoming a burden upon the treasury, to reduce the postage to a rate that would rid the Department of the competition of the private mails; and that these were the immediate causes that led to the passage of the cheap postage act of 1845.

The importance of the Constitutional principle I contended for, whether viewed politically, socially, or commercially, will be in some measure appreciated, when it is considered that, if the government of the United States have the power to forbid the States and individuals carrying letters, newspapers, and other mailable matter, it can, at will, suppress, to any extent it pleases, all written and printed communications between man and man. Theoretically, this absolute power was claimed by the government; practically, it was exercised to a very injurious and tyrannical extent.

The right of the States and individuals to establish mails has not yet been fully established by judicial decisions. The act of 1845, in terms, denies it; although the act itself was practically a concession to it—for it is not to be supposed that Congress would have yielded to a competition so destructive of their revenues, and based, as the Post-office Committee of the House of Representatives said, “upon the impudent assumption that the government of the United States have no authority to restrain or punish” the competitors—it is not, I say, to be supposed that Congress would have been so regardless, both of their own dignity, and of the duty of maintaining their Constitutional prerogatives inviolate, as to have thus succumbed to the usurpations of a few private persons, without so much as bringing the case before the Supreme Court, if they had had any real confidence that their authority would there have been sustained. They would naturally have vindicated their authority first, and considered the reduction of postage afterwards.

It was my intention—had I been sufficiently sustained by the public—to carry the question to the last tribunal. But after a contest of some six or seven months, having exhausted all the resources I could command, I was obliged to surrender the business, and with it the question, into the hands of others, who did not see sufficient inducement for contesting the principle, after the reduction of postage had taken place.

But, great as was the relief afforded by the act of 1845, the value of my movement did not end there. That act, by the proof it afforded that a low rate of postage will support the Department, became but a preparatory step to the still further reduction made by the act of 1851.

I understand that my claim to be remunerated for my services and losses, has been objected to, on the ground that I engaged in the enterprise with a view to make money; that, so far as I was concerned, it proved to be a losing business; that, in this respect, it stands but on a level with enterprises generally that prove unfortunate, presenting no claim for indemnity or compensation from the public. The error of this objection consists in this, that it leaves entirely out of view the benefits the public have received from my unrewarded labors. Those benefits distinguish this case from all those unfortunate private adventures, which propose no benefit to the public, in which the public have no interest, from which they derive no advantage, and whose authors they are consequently under no obilgation to compensate.

It is true I hoped to realize a profit from the enterprise; although I trust I had also a proper sense of pride and duty in the establishment of so important a principle. But no person—no one certainly in my circumstances—would have been justified in entering upon so expensive a contest with the government, unless he had trusted to come out of it, at least without loss.

With reference to my prospects of profit, it is also to be considered, that although the legal idea, and the argument sustaining it, may have had as much originality as any of those mechanical or chemical ideas, which the government protects by securing to their authors an exclusive property in them; and although my ideas were of far greater value to the public than almost any one of those that have ever been thus guaranteed to their authors; still, being legal ones, I could obtain for them no patent, and secure for them no monopoly. All persons, who could read my argument, or hire a lawyer to read it for them, were at once free to avail themselves, as many did, of my thoughts, and establish themselves in competition with me in carrying them into practice. The idea and the argument were therefore necessarily a free gift, on my part, to the public, because the public were sure to get the benefit of them, without being under any compulsion to make any payment to me.

Nevertheless, I looked for a profit from the undertaking—a legitimate profit from the business of carrying letters in the midst of free competition—for I could not believe that the public would be so unmindful of one who should vindicate for them so great a right—a right so vital to civil liberty, so important in a pecuniary view, and the establishment of which was sure to result in the reduction of the government postage to the lowest rate to which free competition could bring it—as to give him no preference in business over those who had done nothing for them in that behalf. Probably such would not have been the case, had not the fact of my being the first to establish mails in avowed defiance of the authority of Congress, and the fact that my mail arrangements were at the outset more extensive than those of any other person, (to wit, from Boston to Baltimore,) induced the Postmaster General to direct nearly or quite all his efforts, for the suppression of private mails, against me alone. By employing a large police in the cities and on the roads, he was enabled occasionally to detect and arrest my carriers, and thus obstruct my mails. In this way the confidence of the public in the certain transmission of their letters through my mails was diminished, and their patronage accordingly withheld. In the mean time, other private mails were allowed to pursue their business, either in entire, or comparative, quiet; and their mails being the surer conveyance, they secured the larger share of business, and their proprietors reaped the profits which should have been the reward of my labors.

The consequence was that, after having sustained the conflict for some six or seven months, and placed the principle, on which I acted, so fully before the public as that it finally compelled the concession of Congress to it, I was obliged, by want of means, to abandon the business, after having incurred debts which to this day I have been unable to discharge.

I subjoin the following “Statement,” and a copy of my argument. The two embrace the proofs of all the more important assertions made in this letter.

With these remarks I leave the question of obligation, on the part of the public, to be determined by each person individually, to whom application may be made for contributions.

Very truly
Your Obt. Servt.,

LYSANDER SPOONER.

STATEMENT.

THE CONSTITUTIONAL QUESTION.

My argument on the “Unconstitutionality of the Laws of Congress Prohibiting Private Mails,” was published in January, (about the 10th,) 1844.

Copies were sent to most of the members of Congress, and to the Postmaster General.

On the 6th of Feb., 1844, it was published at length, in the New York Express.

Of this argument the New York Express said, (January 13th, 1844,)—“The writer has certainly made out a very strong case.”

January 30th, the same paper called it, “A very able argument,” and said, “we do not see how it can be got over.”

February 7th, the same paper said, “Mr. Spooner has discussed that great question with surpassing ability.”

The New York Tribune, (January 18th, 1844,) gave an extended synopsis of the argument, and said:

Hon. Rufus Choate, Hon. Simon Greenleaf, Hon. Franklin Dexter, Hon. Benjamin F. Butler, Hon. William Kent, Hon. William H. Seward, and Hon. Robert Rantoul, Jr., give the following certificates:

“I have been requested to express an opinion respecting a pamphlet entitled ‘The Unconstitutionality of the Laws of Congress Prohibiting Private Mails, by Lysander Spooner,’ published in 1844. Having had occasion to examine this pamphlet carefully, soon after it appeared, I am happy to say that I was impressed with the ability and research displayed in it. The arguments it presented were, to a great extent, original, and the author’s leading and important position, that all laws prohibiting private mails were unconstitutional, was maintained with a force and cogency, calculated, under the obvious limitations applicable to it, to convince every unbiased judgment.

“Boston, 9 Feb. 1849.

RUFUS CHOATE.”

“Andover,May 2, 1849.

“Gentlemen,

—I have received your favor of April 27, requesting my opinion on the constitutionality of the laws against private mails.

“My attention has never been specially called to that question, and it is out of my power, at present, to command the time necessary for a thorough examination of it. I can only say that, having read over Mr. Spooner’s argument, I have been deeply impressed with its cogency, and the research it displays, and should think it a very difficult work to refute it. In effecting a reduction of the postage, which seems justly attributable to his exertions, he has performed a service deserving not only the gratitude of the community, but a remuneration of the expenses it must have cost him.

“Respectfully, your Obedient Servant,

“S. GREENLEAF.”

“To Messrs. John W. Wetherell, John C. Wyman, and Oliver H. Blood.”

“Boston,January 31, 1850.

“Samuel E. Sewall, Esq.,—Dear Sir,

—In answer to the inquiry contained in Mr. Lysander Spooner’s letter to you, I very willingly state that I consider his printed argument, against the power of Congress to prohibit private mails, as quite unanswerable.

“That argument was produced, and substantially repeated, in the defence of certain prosecutions which I was, as U. S. Dist. Attorney, specially required to institute against persons who had set up private mails. I had, of course, occasion to consider it carefully, and I could make no answer to it satisfactory to myself. Since that time my attention has been again drawn to the subject, as Lecturer on Constitutional Law at the Cambridge Law School, and I felt obliged to state the opinion that Congress possessed no such power.

“FRANKLIN DEXTER.”

(Hon. B. F. Butler’s letter discusses the question, at too great length to be inserted entire. I give the more important portions.)

“New York,Feb. 26, 1850.

“Lysander Spooner, Esq.,—Sir,

— * * * I regard the provisions of the existing Acts of Congress, creating a government monopoly in the transmission of ‘mailable matter,’ as inexpedient and oppressive; and, so far as those provisions impose penalties on individuals for carrying, for hire, on their persons, or in their vehicles or vessels, by land or water, letters, newspapers, or packages, your argument goes very far to show, that no power to pass any such laws has been delegated to the Congress of the United States. If the question were a new one, I should expect the courts to repudiate the claim of the Federal Government to any such authority. * * * * *

“I am not prepared to say that the several Congresses that passed, and the several Presidents that approved, these laws, transcended their powers, and violated the Constitution. *

“That your efforts have largely contributed to awaken attention to this great interest, no one can deny; and, whatever I may have thought of them before my recent perusal of your pamphlet, (published by you in 1844,) I am now satisfied that you were induced to engage in those efforts under a deep conviction of the unconstitutionality of the laws with which they conflicted, and that you may therefore be regarded as having rendered, in this matter, good service to the country.

“Very Respectfully, your Obedient Servant,

“B. F. BUTLER.”

“New York,May 18, 1849.

“My Dear Mr. Howe,

—I return the pamphlet containing the argument of Mr. Lysander Spooner, on the Unconstitutionality of the Laws Prohibiting Private Mails.

“That he has established this point, I am not prepared to say, while I appreciate the force of his reasoning.

“One thing is certainly evident, that Mr. Spooner has displayed talent and energy in obtaining a reduction of the charges of postage, and deserves the gratitude of all of us for the obtaining of a great public benefit.

“I am Faithfully Yours,

“W. KENT.”

“Auburn,June 2, 1849.

“Gentlemen,

—My engagements leave me no leisure to examine the interesting question discussed by Mr. Spooner in the pamphlet you have submitted to me. It seems clear enough, however, that his opinion of the Unconstitutionality of the Laws Prohibiting Private Mails was adopted by him in good faith, and upon at least plausible grounds, while it has been discussed with great ability and fairness. Inasmuch as the agitation of the question, very proper under such circumstances, contributed to the reformation of our Post system and the establishment of cheap postage, I am quite satisfied that Mr. Spooner deserves well of the country and of the age.

“I am, with great Respect, your Humble Servant,

“WILLIAM H. SEWARD.”

“To Messrs. John W. Wetherell, Oliver H. Blood, and John C. Wyman.”

“Beverly,Dec. 27, 1849.

“I have read and examined with some care Mr. Spooner’s pamphlet on the supposed power of Congress to prohibit private mails. His argument against the existence of such a power is lucid and thorough—indeed it seems to exhaust the inquiry on that side of the question.

“As it is of transcendent importance that the constitutional limits of the action of the Federal Government should be clearly defined and settled by general acquiescence, and as this can only be done by a consideration of the whole argument for and against every questionable claim of Federal power; as nothing can contribute more towards the progress of civilization and social improvement, and to perpetuate and strengthen the bonds of our glorious Union, than the cheap, rapid, safe and unrestricted intercommunication of thought, through written or printed vehicles, over the whole territory comprised in this group of republics, I think Mr. Spooner entitled to the gratitude of his country, for his able and efficient labors to illustrate the Constitution, and to facilitate correspondence.

“ROBERT RANTOUL, JR.”

The public will judge whether this argument, or the agitation of the question produced by it, and by the establishment of my mails, had any thing to do in calling out the following opinions.

Judge Story’s Opinion.

In June, 1844, (five months after the publication of my argument,) the first intimation, so far as I know, that ever came from the Bench, that the laws prohibiting private mails were unconstitutional, came from Judge Story, on the trial of Winsor Hatch.

After giving the case to the defendant, on the ground that the facts proved, did not bring the case within the letter of the statute, Judge Story, (as he is reported in the Boston Daily Advertiser of June 18th,) said:

As reported in the Boston Mail, of June 17th, Judge Story said:

Senator Woodbury’s Opinion.

February 6th, 1845. In a debate in the Senate, on the new postage bill, pending an amendment to restrict the transmission of newspapers out of the mail, Senator Woodbury, now Judge Woodbury, of the Supreme Court of the United States, (as reported in the Globe, and the report copied in the Boston Times of Feb. 14,) said:

Senator Woodbury made other remarks of a similar character, too long to be quoted at length.

Senator Allen’s Opinion.

February 6, 1845. Pending the same amendment, on which Senator Woodbury expressed the opinions just quoted,

Senator Allen said,

January 27, 1845. Senator Merrick said,

Why “incapable of execution under any circumstances?” Because unconstitutional. It is not to be supposed that Senators would “ridicule” the idea that constitutional laws could be enforced.

Senator Simmons’ Opinion.

February 6, 1845. Senator Simmons said,

Hon. Mr. Dana’s Opinion.

February 25, 1845. Hon. Mr. Dana (of New York) said, (in the House of Representatives,)

When such opinions as have now been cited were expressed by the Press, the Bar, the Bench, in the Senate and in the House of Representatives, it is easy to see, (as, it will hereafter appear, was repeatedly asserted in Congress,) that the reduction of postage was the only thing that could save the Post Office Department from complete prostration.

MY PRIVATE MAILS.

On the 23d day of January, 1844, my mails were started from New York, to Philadelphia, Baltimore and Boston, as will appear by my advertisements in several of the New York papers of that date.

In my advertisements I stated,

Some days before starting my mails, I wrote to the Postmaster General, informing him that I was about to establish mails, and inviting him to try the constitutional question.

The enterprise was strenuously supported from the beginning, by the New York Express, Journal of Commerce, and Evening Post. Other papers subsequently advocated the principle. Many stood neutral for a time. Few opposed, so far as they came under my observation, except those that had the patronage of the Post-office Department.

THE ACTION OF THE GOVERNMENT.

The action of the government in relation to the matter will be seen by the following extracts from the reports of Committees, the resolutions of the House of Representatives, the debates of the Senate, and the report of the Postmaster General.

The interesting epithets, which some of them apply to my conduct, would indicate that they had sufficient spirit, and a sufficient appreciation of the enormity of my offence, to have induced them to carry the question before the Supreme Court, before condescending to yield by reducing the postage, if they had not been overruled by others, or if, in their cooler moments, they had not themselves doubted what the decision of that Court might be.

The effect, which a little time and reflection had upon the feelings and language of some of the members, is quite noticeable, as, for example, in the case of Mr. Merrick, the Chairman of the P. O. Committee of the Senate. Those persons, who, on the 22d Feb., 1844, were described by him as “destitute of all patriotic or moral principles,” are, on the 27th Jan., 1845, spoken of as “private competitors, sustained by public opinion.” And their acts, which, at the former date, were designated by him as “such flagrant outrages,” and “such flagitious conduct,” became at the latter date, “private enterprise.” And “the conclusion, to which he comes” is, that after all Congress themselves have been the great sinners, and their first duty is to reform their own legislation, and thus “satisfy and propitiate an enlightened public.”

FIRST RESOLUTION OF THE HOUSE OF REPRESENTATIVES.

On the 29th of January, 1844, six days after my mails were started, the House of Representatives

FIRST REPORT OF THE P. O. COMMITTEE OF THE HOUSE.

On the 28th of February, 1844, the Committee reported, in answer to the foregoing resolution, that they

The committee are unanimously of opinion, that the power granted by the Constitution, to establish Post Offices and Post Roads, and the laws passed in pursuance of it, are both fraudulently evaded, and wantonly violated and defied, and that the government ought without hesitation to interpose its strong arm to arrest, and forever suppress such lawless conduct. The power to do this, if ever before questioned, has hitherto been regarded as the constitutional prerogative of Congress; for, from the foundation of the Post Office Department, the power has been exercised: and, in other times, the exercise of such a power has been submitted to in a spirit of loyalty and patriotism. That time has gone by; and the recent discovery, that a power that has been exercised by this government from its infancy, without a question, and without a doubt, may be violated with impunity, renders further legislation necessary to protect the public service, and presents a question no less momentous than this: Whether the Constitution and Laws of the country, or a lawless combination of refractory individuals shall triumph?

These outrages are of daily occurrence upon the principal lines of intercommunication between the important cities and towns of the Union, and, in some instances, are carried on under a belief, or pretence, that the existing laws cannot be enforced; and one of the active agents in their perpetration, and who is represented to be irresponsible in a pecuniary point of view, has even challenged a prosecution, in order to test the power of the government to restrain, prevent, or punish him for offences of that kind.”

SECOND RESOLUTION OF THE HOUSE OF REPRESENTATIVES.

On the 5th March, 1844, the House of Representatives

REPORT OF THE POSTMASTER GENERAL.

On the 30th March, 1844, the Postmaster General made a report in answer to the call of the preceding resolution. The following are extracts.—

SECOND REPORT OF THE P. O. COMMITTEE OF THE HOUSE.

On the 15th of May, 1844, Mr. Hopkins, in behalf of the majority of the Committee of the House, on Post Offices and Post Roads, made a report, from which the following are extracts:

REPORT OF THE MINORITY OF THE P. O. COMMITTEE OF THE HOUSE OF REPRESENTATIVES.

On the same day, May 15th, 1844, Mr. Dana, on the part of the minority of the Committee, (consisting of Messrs. Dana, Grinnell and Jenks,) made a report, from which the following are extracts:

REPORT OF THE P. O. COMMITTEE OF THE SENATE.

On the 22d of February, 1844, Mr. Merrick, Chairman of the P. O. Committee in the Senate, made a report, from which the following are extracts:

DEBATES IN CONGRESS IN 1844, AND 1845.*

In the Senate.

March 22d, 1844. “Mr. SIMMONS offered an amendment increasing the distance from one hundred to two hundred and fifty miles for the lowest rate of postage,” proposed by the bill, (5 cents.)

March 22d, 1844. Mr. BUCHANAN said,

March 29th, 1844. Mr. MERRICK, (Chairman of the P. O. Committee,) said,—

April 1st, 1844. Mr. PHELPS said,

April 1st, 1844. Mr. SIMMONS said,

April 17th, 1844. Mr. MERRICK said,

In the House.

June 12th, 1844. Mr. HALE said,

June 12th, 1844. Mr. THOMPSON said,

A bill passed the Senate at this session, (April 29th, 1844,) reducing the rates to

This bill was sent to the House, referred to the Committee on Post Offices and Post Roads, and by that Committee “reported to the House without amendment,” June 12th, 1844. But as Congress adjourned but five days afterwards, (June 17th,) the House had not time to act upon the bill, and it was lost.

In the Senate.

January 16th, 1845. Mr. NILES said,

January 27th, 1845. Mr. MERRICK* said,

January 28th, 1845. Mr. MERRICK said,

January 29th, 1845. Mr. SIMMONS said,

January 29th, 1845. Mr. BREESE said,

January 30th, 1845. Mr. PHELPS said,

February 3d, 1845. Mr. MERRICK said,

February 6th, 1845. Mr. SIMMONS said,

In the House.

February 25th, 1845. Mr. DANA said,

March 1st, 1845. Mr. PATTERSON said,

A bill passed the Senate at this session, fixing a uniform rate of postage of five cents, for a half ounce, for all distances. This bill was sent to the House, and there changed so as to fix the rates at five cents, for three hundred miles, and ten cents for any greater distance. In this form it was agreed to by the Senate, and became a law.

No considerable debate was had in the House at either session. In 1845, debate was cut off by the “previous question.”

THE ACTION OF CONGRESS IN 1843, CONTRASTED WITH THAT IN 1844 AND 1845.

To see more distinctly the effect produced upon the minds of Congress, by the establishment of private mails, and the denial of the power of Congress to prohibit them, we have but to contrast the action of Congress immediately before those events, with their action immediately afterwards—as follows:

February 28th, 1843, the Senate passed a bill, fixing the rates of postage for a “single sheet,”

At 5 cents for 30 miles,

At 10 cents for 100 miles,

At 15 cents for 220 miles,

At 20 cents for 400 miles,

At 25 cents for all over 400 miles. And double and triple those rates for double and triple letters.

This bill was sent to the House, and on the 2d of March, 1843, amended so as to fix the rates of postage, at

5 cents under 50 miles, and

10 cents over 50 miles,

for quarter ounce letters; and double and triple those rates for the second and third additional quarter ounce.

This amendment could hardly be considered a reduction, except on the condition of the people’s stinting themselves to quarter ounce letters. Under this amendment, letters weighing over a quarter of an ounce, would pay 10 cents for all distances under 50 miles, and 20 cents for all distances over 50 miles.

As regards letters weighing over a quarter of an ounce, this would probably have been a positive increase on the old rates of postage.

On the same day, (March 2d, 1843,) the Senate “disagreed” to this amendment of the House, without a division. On the 3d of March, 1843, the House insisted on its amendment, and asked a conference. On the same day, the Senate insisted on their disagreement, and granted a conference. But the conference made no report, and it being the last day of the session, the bill was lost.

This was the condition in which the postage reform stood, in both branches of Congress, on the 3d of March, 1843, the last day of the session previous to the publication of my argument, and the establishment of the private mails. The Senate proposed nothing that deserved the name of reduction. The House proposed no reduction, except on the petty and vexatious condition of restricting the people to quarter ounce letters.

On the 29th of April, 1844, (about three months after the establishment of my mails,) the Senate passed a bill, fixing the rates of postage, for a single letter,

At 3 cents for 30 miles,

At 5 cents for 100 miles,

At 10 cents for 300 miles,

At 15 cents for all over 300 miles.

This bill was not agreed to by the House, and the matter went over to the next session.

February 8th, 1845. The Senate, by a vote of 38 to 12, passed a bill, fixing a uniform rate of postage, of 5 cents, for a half ounce, for all distances. This bill was amended in the House, so as to make the postage

5 cents for 300 miles, and

10 cents for over 300 miles,

for a half ounce. This amendment was agreed to by the Senate, March 1st, 1845; and this was the bill that became a law.

What was it that produced, in the minds of Congress, the remarkable changes evinced by these several bills, between the 3d of March, 1843, and the 1st of March, 1845? There can be but one answer to this question.

THE EXAMPLE OF ENGLISH POSTAGE.

Some persons have supposed that the example of cheap postage in England had much to do in bringing about the reduction of postage here.

It undoubtedly did something to increase, among the people, the desire—(an unavailing desire of long standing)—for cheap postage. But it had but little effect upon Congress.

The English system went into operation January 10th, 1840; yet on January 10th, 1844, (four years after,) no change had been made in this country; and, so far as I am aware, no radical change had ever been proposed, or had many friends, in Congress. The reason was this. The diminished receipts, and the increased expenses, under the cheap system in England, caused a loss of about half their original revenue. This loss could be borne in England, because under their high rates their revenue had been about double their expenses. But in this country, the expenses had entirely consumed the revenue. And it was a fixed principle, with our government, that the department should support itself. This principle was adhered to by Congress with bigoted tenacity. The English example, therefore, really operated upon the minds of a large portion of Congress, to deter them from a reduction. It was quoted, along with other statistics, as proving that a reduction of rates would be attended with a reduction of revenue; and consequently that no reduction of rates could be made consistently with the principle of making the department sustain itself.

It was only when opposition post offices were established, and the constitutional right of individuals to establish mails had begun to be the prevalent doctrine, and Congress saw that it was only at low rates that their mails could long get any considerable number of letters to carry, that they discovered that the principle of making the department support itself was about to operate differently from what it ever had done before, viz: in favor of low rates, rather than high ones. And it was for this reason, more than any other, that the act of 1845 was passed, as the debates show. The great argument in Congress, in favor of the reduction, was, not the blessings of cheap postage, but that, without a reduction, the department would inevitably be prostrated by competition.

HALE AND CO’S LETTER MAIL.

I have said before, in my letter to Mr. Phillips, that I was “the first to establish mails in avowed defiance of the authority of Congress,”—“on the principle that Congress had no Constitutional power to forbid the establishment of mails by the States, or by private individuals, in competition with the mails of the United States;” and “that I was the first to invite the government to test that question before the judicial tribunals.”

This renders it necessary that I should make an explanation in regard to the mails of Hale & Co.

The clandestine transmission of letters through the Expresses established for the transportation of packages and merchandise, had doubtless been carried on for years previous to 1844, as appears by the Annual Reports of the P. M. General in 1841, (and document D. appended thereto,) 1842 and 1843.

A case of this kind was tried in New York, in November, 1843, before Judge Betts. On this trial, Judge Betts held that the statutes of Congress prohibiting the setting up of “any foot or horse post,” and forbidding “any stage coach, or other vehicle, packet boat or other vessel,” to carry letters, did not apply to passengers on board vessels and land carriages.

The omission to prohibit passenger posts was obviously accidental, occasioned by the fact that, at the time these statutes were passed, (1825 and 1827,) there were no railroads, and comparatively few steamboats in the country, and the facilities for establishing passenger posts had not become such as to attract the attention of Congress.

Under cover of this decision, that the letter of the laws then in existence did not apply to passengers, Hale and Kimball, as appears by their advertisement, commenced carrying letters, between New York and Boston, December 21, 1843, thirty-two days before my mails were started, and about twenty days before the publication of my argument.

The point of distinction between Hale & Co. and myself is this:

They made no denial of the validity of the then existing laws of Congress, or of the Constitutional power of Congress to pass other laws prohibiting passenger posts; they only evaded the plain design of the law, by availing themselves of an accidental omission in its letter, after the omission had been pointed out to them by Judge Betts. They acted within the letter of the law, although they violated its spirit. I denied and disproved, not only the validity of the then existing laws, but the Constitutional power of Congress to pass any other laws, prohibiting either passenger posts, or any other private posts, which individuals or the States might choose to set up on the highways of the nation. I established my mails avowedly on that principle, (as will appear from my advertisements, an extract from which is quoted on pages 24 and 25,)—published an argument in defence of it—sent copies of that argument to Congress, and publicly challenged,* and privately invited, the P. M. General to test that question.

There was nothing in the movement of Hale & Co. to threaten the security of the government monopoly, or to coerce the government into a reduction of postage. Congress had only to supply the omission in the letter of the law, (as they could do in three lines,) so as to make it apply to passenger posts, as well as to “horse,” “foot,” and other private posts, and their monopoly would then have been perfectly safe as against Hale & Co.† And the action of Congress in 1843, (as has already been exhibited,) sufficiently proves that Congress would have supplied this omission, without making any very important reduction in the postage, had not the Constitutional question been raised. But the want of Constitutional power, which I alleged and proved, on the part of Congress, to pass any prohibitory laws at all, was an omission, which Congress could not supply; and this it was that opened the door to the general establishment of private mails throughout the country, and compelled a reduction, as the only means left of sustaining the Department.

It was not the evasions, either of the intent or the letter, of the existing laws, that alarmed Congress for the safety of their monopoly; for those evasions had been going on for years, as Congress were particularly informed by the P. M. General, as early as 1841. But it was, (as the P. O. Committee of the Senate said,) “the unblushing violation, and open defiance, of the laws,” and, (as the P. O. Committee of the House said,) “the impudent assumption that the government of the United States had no Constitutional power to restrain or punish” the establishment of private mails,—that created the first effervescence in Congress. And it was this same “unblushing violation,” “open defiance,” and “impudent assumption,”—sustained, as they chanced to be, by argument which could not be met, by several of the most influential presses in the country, by the opinions of large numbers of the bar, by the intimation of Judge Story, by the declaration of Senator Woodbury, and doubtless also by the opinions of many other members of Congress who did not think it wise to express them in advance of a decision by the Supreme Court,—that compelled the general admission, on the part of Congress, that their iniquitous usurpations over the free transmission of intelligence could not be maintained, and that the only means by which the Post Office Department could be saved from prostration, was a reduction of postage.

That the P. M. General considered the mail of Hale & Co., and the grounds on which they acted, as of little or no importance, is evidenced by the fact that in his report, before given, in part, (p. 28,) although he goes into particulars in regard to my mails, he does not so much as mention Hale & Co., although they commenced carrying letters thirty days before I did.

In short, their mails were only a new form of evasion, involving no principle, and based on no denial of the authority of Congress, and could therefore be of no practical importance as coercive of a reduction of postage.

ILLEGALITY of theTRIAL ofJOHN W. WEBSTER.

ILLEGALITY

of the

TRIAL

of

JOHN W. WEBSTER.

BY LYSANDER SPOONER.

BOSTON:

BELA MARSH, 25 CORNHILL.

1850.

Entered, according to Act of Congress, in the year 1850. By LYSANDER SPOONER, in the Clerk’s Office of the District Court of Massachusetts.

Wright’s Steam Press, 3 Water st.

ARGUMENT.

Dr. Webster was not tried by a legal jury; but by a jury packed, by the court, either with a view to a more easy conviction than could otherwise be obtained, or with a view to a conviction which otherwise could not be obtained at all.

The jury was packed by excluding from the panel three persons, on account of their opposition to capital punishment, and substituting in their stead three persons not thus opposed. That opposition, it was supposed by the court, (and correctly too, of course), would either render the persons entertaining it less ready to convict the defendant, than they otherwise would be; or would prevent them from convicting at all, whatever the evidence might be.

But exclusion for either or both of these reasons is illegal. If the punishment prescribed by statute, be such as to disincline, or deter, the minds or consciences of the men drawn as jurors, from a conviction, the statute must fail of execution, rather than the jury be packed to avoid that obstacle.

Even if the persons, drawn as jurors, should themselves request to be excused from serving, or should even refuse to be sworn, on the ground that they could not conscientiously render a verdict “according to the evidence,” if that verdict were to be followed by the penalty of death, still the court could not discharge them. The trial must, in the first place, be postponed until a subsequent term of the court, and until an entire new jury be drawn. If this new jury should have among them persons entertaining the same scruples, as those drawn at the former term, the trial must be again postponed; and so on, from term to term, until a jury, drawn in the usual way, shall be found, who will consent to be sworn to try the case. If such a jury cannot be obtained at all, then the trial must be postponed until the statute, prescribing the punishment of death, be repealed, and such a penalty substituted, as jurors will all consent to aid in enforcing. In no event, and for no reason whatever, can the jury be packed, in the manner it was done in Dr. Webster’s case, for that is destroying the trial by jury itself,—as I will now proceed to show.

The trial by jury is a trial by “the country,” in contradistinction to a trial by the government. The jurors are drawn by lot from the mass of the people, for the very purpose of having all classes of minds and feelings, that prevail among the people at large, represented in the jury. They are drawn by lot from the mass of the people, for the very purpose of making the jury a fair epitome, mentally and morally, of “the country,”—that is, of the whole country.

A tribunal, thus selected, is supposed to be a more just, impartial, and competent tribunal, than the government itself, or any department of it would be. And unanimity, on the part of the members of this tribunal, is required, in order that no man may be punished or condemned, unless the whole country, (so far as that is supposed to be fairly represented by the jury), shall concur in the conviction and punishment. This concurrence of the whole “country,” as a condition of conviction and punishment, is required from motives of both justice and caution towards the life, liberty, property, and character of the person accused. It is supposed that if any portion of “the country,” (as represented in the jury), dissent from the conviction or punishment, that dissent gives sufficient reason at least to doubt the propriety or justice of such conviction or punishment.

Now it is clear, that if the government can exclude, on account either of their opinions or feelings, any persons thus drawn by lot, the trial is no longer a trial by “the country,” but only by a portion of the country. It is, in fact, a trial by the government, instead of “the country,”—because it is a trial by that portion only of the country, which has been selected by the government, on account of their having no opinions or feelings different from its own.

Such an exclusion, therefore, works the abolition of the trial by jury itself,—because it works the abolition of the trial by “the country,” and institutes a trial by the government,—or, what is the same thing, a trial by persons selected by the government, on account of their concurrence in, or their subservience to, its own opinions and feelings.

Whenever, therefore, the government presumes even to question the persons drawn as jurors, as to whether they entertain any opinions or feelings different from those entertained by the government, (as the latter are expressed in the statute book), and says to one “be sworn,” and to another “stand aside,” (according as he concurs with, or dissents from, the opinions or feelings of the government), the government manifestly assumes to abolish the trial “by the country,” and to institute a new tribunal, constituted solely of persons specially selected by the government, on account of their readiness to carry out the purposes of the government.

But it will be said that the difference of opinion, between the government and the individual—(which constitutes the ground, on which the former excludes the latter from the panel)—is a difference about that, with which the juror has nothing to do, to wit, the punishment, and not the guilt, of the accused person.

There are two answers to this objection:

1. The conviction is sought—or rather the guilt or innocence of the accused person is sought to be ascertained—mainly, if not solely, with a view to his punishment, if he be found guilty. Punishment, or no punishment, then, is the practical question at issue. Conviction is but a means, punishment the end. The former has reference, wholly, or nearly so, to the latter. Now, it is to be observed that, in law, means are rarely considered independently of ends. They are never authorized, independently of ends. The difference between them, then, is theoretical, rather than practical. Although, therefore, there may be a theoretical distinction between the question of conviction, and the question of punishment, there can hardly be said to be any practical, or even legal, difference between them.

2. Admitting, for the sake of the argument, a clear legal distinction between the question of guilt, and the question of punishment, it does not follow that the former is to be determined without any reference to the latter. The law does not require a man to cease to be a man, and act without regard to consequences, when he becomes a juror. The courts themselves, at the same time that they exclude one man from the panel because he looks forward to the consequences of a conviction, will yet instruct those who remain on the panel, that they are to scrutinize the testimony with all that caution which the momentous results of their decision naturally dictate. No court presumes to tell a jury that they are to try a capital case with the same indifference and unconcern as to consequences, that they would a case where the results of their decision would be less important. On the contrary, all courts usually press upon a jury a solemn consideration of the consequences involved, as a motive to the exercise of unusual, and even extreme, caution. But in so doing, it is plain that they act upon an entirely opposite principle from that on which they acted in excluding individuals from the panel. Because these latter individuals looked forward to the consequences of their decision, and felt a little more sensibility to those consequences than the statute requires, or the government approves, the government excludes them; while, at the same time, the government instructs those who remain on the panel, that they are to keep these consequences in view, and act with corresponding caution.

The result, therefore, is, that the government—when it affixes the penalty of death to the commission of a crime, and excludes a man from the panel on account of his views of that penalty—virtually assumes to set up a standard of sensibility, in regard to the matter in issue, beyond which a juror may not go. And the consequence is, that the accused person is tried, not by “the country”—not by persons who fairly represent all the degrees of sensibility, which prevail among the people at large—but by persons selected by the government for no other reason than that they lack that degree of sensibility, touching the matter in issue, which a greater or less portion of “the country” possess. To select a jury on this principle, is nothing more nor less than packing a jury,—in the worst sense of that term. What is ever the object of packing a jury, but to get rid of all persons, whose sensibilities will be likely to thwart the purposes of the government? that is, defeat (or secure, as the case may be) the conviction and punishment of the accused, contrary to the wishes of the government?

The provision of the Bill of Rights, which guarantees to every man a trial by “the country,” does not say that he shall be tried by such portions only of the country as possess but a statutory degree of sensibility—a degree of sensibility not incompatible with the efficiency of such penal codes as may be enacted by the legislature—but by “the country” unreservedly—by “the country” with all its sensibilities. And if it happen that those sensibilities are such as that any persons, drawn as jurors, either will not try, or will not convict, where death is the penalty to follow, then the statute affixing that penalty must be so changed as to conform to the sensibilities of the country, or it must become a dead letter, and criminals go unpunished, and even untried, rather than the trial “by the country” be abolished, and a trial by the government be substituted. Otherwise the statute prevails over the Bill of Rights.

Whenever the statute, that affixes the penalty, and the Bill of Rights, which guarantees a trial “by the country,” are found to be practically incompatible with each other, the latter, being the paramount law, must prevail. But the government, by excluding a part of “the country” from the panel, in order that the statute may have effect, virtually say that the statute must prevail over the Bill of Rights.

It may here be mentioned, in passing, that it seems never to have occurred to the government, that if they assume to set up a statutory standard of sensibility for jurors, and to exclude from the panel all men, whose sensibilities rise above that standard, they ought to be equally bound to exclude all whose sensibilities fall below it. But they make no inquisition in that direction.

But, in truth, opposition to capital punishment does not necessarily imply any unusual degree of sensibility. It may result solely from the conviction—founded on the incontestible experience of mankind—that there is no such certainty in human testimony, as to secure the innocent from suffering the penalty designed only for the guilty. In multitudes of cases, where the accused were innocent, the evidence has nevertheless been so strong as to justify, and even to require, a conviction, if the principle be admitted that human testimony is, in its nature, sufficiently certain to justify or require a conviction, that is to be followed by the penalty of death. A person, therefore, may be opposed to capital punishment for this reason alone—a reason that implies a deliberate and philosophical estimate of the weight of human testimony. Yet, all those, who thus weigh the evidence a little more philosophically, and in the light of a wider observation, than the government, must be excluded. Is such a principle to be tolerated? One of the very objects of the trial by jury, is to have the evidence weighed differently from what it is supposed the government might weigh it. Yet now, because a man thus weighs it, he is excluded from the panel.

Again. It is not only a supposable case, but a highly probable one, that a person may be opposed to the death penalty, on the ground that it is a “cruel punishment,” (and if unnecessary, it is “cruel,”) and that therefore the government has no constitutional right to inflict it—“cruel punishments” being expressly prohibited by the Bill of Rights. In that case a man would be excluded from the panel simply for forming a different opinion from the government, on a question as to the constitutional powers of the government. If such a principle prevail, all barriers, interposed by a jury, not only to the infliction of “cruel punishments,” but to the assumption, by the government, of all manner of unconstitutional authority, are swept away.

The question has thus far been discussed on the supposition that the question of punishment, and the question of guilt, are distinct—and that, in strict law, the jury are judges only of the latter. And I take it for granted that it has been shown, that even under that supposition, men cannot be excluded from the panel by the government, in order that the will of the government, (as expressed in its criminal code), may escape the influence and the veto of that moral law, and that law of human nature, which require and compel all men, jurors as well as others, to regard more or less the consequences that are to follow their actions. If the criminal code be practically inconsistent with that law of human nature, and theoretically inconsistent with the moral law, as this is understood by any considerable portion of “the country,” the code must give way to, or be made to conform to, those higher laws, or the “trial by the country” must be abandoned.

But, in fact, the position is not a true one, that the jury have legally nothing to do with the question of punishment, but only with the question of guilt. The language of Magna Charta is equally explicit on the point of punishment, as on that of conviction; and it provides as clearly that a man shall not be punished, but by “the judgment of his peers,” as that he shall not be condemned but by the same “judgment.” These are the words of Magna Charta:

“No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed; nor will we pass upon him, nor condemn him, unless by the legal judgment of his peers, or the law of the land.”*

Here are plainly two clauses in this chapter of Magna Charta—two distinct provisions. The first relates to the arrest and punishment, the other to the conviction. That they are distinct clauses, is proved by the fact that they are separated from each other by the disjunctive “nor.” Thus, “No freeman shall be arrested, imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed;” (all the preceding words are but saying that no freeman shall be arrested or punished;) “nor will we pass upon him, nor condemn him, but by the judgment of his peers, or the law of the land.”

It is plain that “the judgment of his peers” goes to the whole question, and to the separate questions, of punishment and guilt.

And this is as it should be. The trial by jury was intended to be—what it has so often been denominated—“the palladium of liberty;” the great bulwark for the protection of individuals against the oppression of the government. But it would be but a partial and imperfect protection against that oppression, if the “judgment” of the jury, as to the degree of punishment to be inflicted, could not be interposed between the convict and the government. The government could punish the slightest offences in the most cruel and unreasonable manner. The people, as single individuals, need protection against cruel and unreasonable punishments, as well as against unjust condemnations. And they can secure this protection only on the principles here contended for.

If there could be any doubt as to the meaning of the language of Magna Charta, on this point, that doubt would be settled by an established rule of interpretation, which courts are bound to apply to all laws and legal instruments whatsoever, viz., that we are to get as much good out of a law, (or other legal instrument,) as possible; that is, that we are to make its words mean as much good, (in connexion with the matter of which they are treating,) as they can fairly be made to mean. Interpreted by this rule, this chapter of Magna Charta is explicit beyond cavil, to the point that the “judgment” of the jury shall be had on the question of punishment, as well as on the question of guilt.

The spirit of the provision undoubtedly requires that “the judgment” of the jury shall be taken on the question of punishment separately from the question of guilt. But where a juror, knowing the extent of the punishment authorized by the statute, consents to try a case, and renders his verdict without offering any objection to that punishment, his consent to it may, perhaps, be fairly inferred. But where he refuses to try the case, solely because he disapproves of such punishment, his consent is clearly withheld.

The Bill of Rights of Massachusetts, is, if possible, more explicit than Magna Charta in submitting the question of punishment to the “judgment” of the jury; indeed, the first clause on the subject, in terms, makes the whole trial, (so far as the jury are concerned,) a question of punishment, rather than of guilt. That clause, it will be seen, uses no terms that express conviction of guilt, as a separate thing from punishment. It does not say, like Magna Charta, that no man shall be “passed upon, nor condemned;” it only says that no subject shall be arrested or punished. It is only in the second paragraph that the trial of his guilt by a jury is clearly provided for.

These are the words:

The language of the first of these paragraphs seems to be explicit, that the jury are to pass upon the question of punishment, and I take it for granted that it settles the question.*

To conclude. It is plain, that if the more humane and conscientious persons can be discharged from the panel, on account of their revolting against the barbarity of the laws, which they are called upon to aid in enforcing, an accused person does not have a trial by “the country,” but only by the more inhuman and unfeeling portion of it.

Suppose the statute were to prescribe the penalty of death for a theft of forty shillings, (as it has sometimes done in England.) Probably not one man in ten in this Commonwealth would consent to be sworn to try a person accused of such a theft. In such a case, could all the men who were thus scrupulous, be excluded from the panel, or even be discharged at their own request, until a jury were packed entirely of men so brutal as to be willing to have a man hanged for stealing forty shillings? Certainly not, I think. And if not, then men cannot be discharged at all, on account of their opposition to such penalties as may be prescribed by statute; and whenever men, drawn as jurors, refuse to be sworn to try a case, on account of the penalty annexed to the offence to be tried, the trial must, in the first instance, be postponed until, at some subsequent term of the court, a jury drawn in the usual way, shall be found, who will swear to try the case. If such a jury can never be found, the trial must stop, until that penalty be changed for such a one as all men, drawn as jurors, can conscientiously assent to.

If the doctrine here attempted to be maintained be correct, the trial by jury secures a merciful criminal code—such a code as “the country,” (as represented in a jury drawn by lot from the great body of the people,) can conscientiously aid in enforcing. If the doctrine be erroneous, we have no such security. We can have only such a code as a bare majority of the people may chance to approve; and all that justice and tenderness towards life, liberty, property, and character, which has heretofore forbidden the condemnation of an accused person, so long as any portion of the “country,” (as represented in a jury drawn by lot,) doubted his guilt, or disapproved his punishment, must give place to a sternness, not to say ferocity, which packs a jury with a special view to a more easy conviction, or a heavier penalty, than could otherwise be obtained or inflicted.

In Dr. Webster’s case, three persons, equal to one fourth of the jury, were excluded from the panel, on account of their opposition to the death penalty. These three persons, it is fair to presume, represented a corresponding portion of the community, that is, one fourth of the whole. Thus one fourth of “the country” were virtually disfranchised of their constitutional right to be heard, both on the question of the guilt, and the question of the punishment, of one of their fellow men. Will so large a portion of the community acquiesce in such a disfranchisement?

A NEW SYSTEM PAPER OF PAPER CURRENCY.

a

NEW SYSTEM

of

PAPER CURRENCY.

BY LYSANDER SPOONER.

BOSTON:

PRINTED BY STACY & RICHARDSON,

No. 11 Milk Street.

1861.

Entered according to Act of Congress, in the year 1861, By LYSANDER SPOONER, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.

[* ] Suppose A sells to B, and receives his pay for, an hundred bushels of grain, out of a certain mass consisting of a thousand bushels; and A promises that he will separate the hundred bushels from the mass in which they are merged, and deliver them to B in one month from the time of the contract. In this case the right of property in the hundred bushels, passes to B, the purchaser, at the time of the contract—and if the mass should be destroyed before the delivery, (without any fault on the part of A) the loss of the hundred bushels would fall upon B, the purchaser and owner of them. And this is but a parallel to the case of debt, where A should sell to B, and receive his pay for, an hundred dollars’ worth of yalue out of his (A’s) whole estate; and should promise that this hundred dollars’ worth of value should be separated from the mass of his estate, (in which it is merged,) converted into money, and delivered to B, the purchaser, (or creditor,) in one month from the time of the contract. In this case, as in the case of the grain, the right of property in the hundred dollars’ worth of value, would pass to B, the purchaser of it, at the time of the contract; and if the whole estate of A, in which B’s hundred dollars’ worth of value was merged, should then be lost or destroyed prior to the delivery, without any fault or culpable neglect on the part of A, (the bailee, or debtor,) the loss of the hundred dollars’ worth of value would fall upon B, the purchaser and owner of it.

[* ] The delivery may sometimes be important as evidence of the right of property, when there is no other evidence of it. But it is of no importance to the right itself, if the right can be proved by any other testimony. And a promise to deliver property, and an acknowledgment that the property has been paid for, (as in the case of a promissory note,) are as good evidence that the right of property has passed to the promisee, as is the delivery itself.

[* ] The validity of this assent, for the conveyance of property, results from the facts that men have an inherent right to dispose of their property; that they can dispose of it only by the consent, or assent of their minds, or wills to do so; and that, consequently, whenever this consent, or assent, takes place, it actually passes the right of property, (in the thing to which it applies,) to the person to whom the proprietor designs it to go. It is truo the law requires some outward manifestation of this assent—such as a delivery of the thing sold, or a written or oral contract as proof of it—before it (the law) will declare that the right of property has actually passed to another; but this is required, not because the outward manifestation is of any intrinsic importance, but because we can have no evidence of a man’s mental sensations except from some outward exhibition of them.

[* ] Although a deed of land, or a bill of sale of a horse may contain an agreement that the possession shall remain in the seller for a time; and although such an agreement would imply that the horse or farm was left in his possession to be used by him, still it would not, as in the case of a note, (or bill of sale of dollars,) imply that the horse or farm might, in the mean time, be converted into any other shape for use, or be exchanged for any other commodity; because the horse and farm, unlike the money, are productive and useful in their present shape.

[* ] It will be understood, when I say that the right of property in the “money” passes to the purchaser at the time it is sold, or contracted for, (though not delivered until a future time,) that I mean, not the right of property in the identical pieces of money that are to be delivered, or paid, but (for the reasons heretofore given) the right of property in an amount of value, existing in some shape or other, in the debtor’s hands, equivalent to the money, and which is to be converted into money in time for the delivery.

[* ] This distinction between the liability of a debtor, on his contract, for the money itself, and his liability, for the same amount, in an action on the case for damage, where the loss has been occasioned by his fault or negligence, is an important one in several respects, as regards both debtors and creditors, (as has heretofore been shown,) notwithstanding the amount recoverable in each case should be the same.

[* ] This prima facie claim may be defeated as to any particular property in the hands of the debtor, clearly distinguishable from the bulk of his property, and which the debtor can show to have been either loaned or given to him since his debt was created.

[* ] That is, he risks his labor, all over and above his necessary subsistence while laboring; which is no more than the capitalist would be obliged to risk if he hired his labor; and which, therefore, is not entitled to be considered as a risk created by the loan.

[* ] When it is considered that judges are always extremely reluctant to hold any legislation unconstitutional, and that the Supreme Court of the United States have never, except, I think, in one or two instances only, held a law of Congress unconstitutional,since the foundation of the government, I think those who knew Judge Story, will hardly suspect that he would thus have gone beyond the necessities of the case then before him, and thrown out so distinct an intimation against the power of the government, at a time too when his opinion would naturally have so much influence in encouraging the establishment of additional private mails, and in inducing the public to give them their support, to the prejudice of the revenues of the government, unless he were not only clear in his own mind on the question, but had also learned the opinions of his associates on the bench of the Supreme Court—(as he could hardly have failed to do—for that Court remained together at Washington some two or three months after the agitation of the question had commenced.)

[* ] “Were the question a new one.” The Constitution is the same now, on this point, that it was when it was “new,” and the constitutional question is, therefore, the same now that it would have been then.

[* ] The Postmaster General here misrepresents my proposed admission, by leaving out the most important part of it. Before starting my mails, I informed him of my intention to start them, and added,

“I shall be ready at any time to answer to any suit, which you may think it your duty to institute.

“Until I know the course intended to be pursued by the Department, I can of course give no assurance as to the defence I shall choose to make. I will say, however, that if an amicable suit only should be instituted, it is not my present intention to put you to any trouble in proving facts, or to take advantage of any defects in the existing law; but to meet the constitutional question fully and distinctly.”

Previous to this time, Judge Betts had decided that there was a loop-hole in the law prohibiting private posts, which prevented its applying to passengers on board public conveyances. Judges Story, Sprague, and Conklin subsequently confirmed this opinion, while it was controverted by Judges Randall and Heath. It was this defect, (which was sufficient for my defence), that I proposed to take no advantage of, if an amicable suit only should be instituted. But it was no part of his purpose to try the constitutional question—but only to break me down by brute force, without having either the law or the constitution on his side—and hence my proposal was declined.

[* ] In this report, the Postmaster General seeks to convey the impression that he considered my conduct plainly illegal. If he really did so consider it, it was his sworn duty to have me prosecuted; and he would have committed perjury in neglecting to do so—for the law which he was sworn to execute, required him to “prosecute offences against the post office establishment.” Yet, after my mails had been in operation some weeks, three or four, I think, an agent of the Department called upon my counsel, Josiah Howe, Esq., of New York City, and proposed that if I would then desist from conveying letters, no prosecutions should be instituted on account of those that had been carried. And it was only when this proposition was promptly and peremptorily rejected, that the prosecutions were commenced.

[† ] Undoubtedly “the law was the same in both (all) the States;” but the Judges in New York and Massachusetts, proved to be different from those in Maryland and Pennsylvania. The Postmaster General never obtained any verdicts in New York or Massachusetts. It is proper to say, however, that all the decisions were made upon the construction of the statute, and not upon the meaning of the constitution.

[* ] Extracted from the National Intelligencer and Congressional Globe.

[* ] See the full report of his Speech in the Tri-Weekly National Intelligencer of February 1, 1845.

[* ] So far as my advertisement, before mentioned, was such a challenge.

[† ] That Hale & Co. had no intention of contesting any principle, is evidenced not only by the fact that they made no denial of the power of Congress, when they commenced carrying letters, but also by the fact that the P. M. General, in his report, before given, (page 28,) makes no allusion to them, or to any one but myself, as having invited him to test the Constitutional question; and still further by the fact that, on the very day that the omission in the letter of the law was supplied, (so as to make it apply to passengers,) Hale & Co. abandoned their business—though their pockets were full of money—thus showing that they had no idea of spending any money in defence of any Constitutional principle, that was important to the public, or restrictive of the power of Congress.

[* ] The phrase, “By the law of the land,” (say Coke, Kent, Story, and others,) does not mean a statute passed by a legislature—(for then this clause would impose no restraint upon the Legislature)—but is a technical phrase, meaning, “by the due course and process of law,” which Coke afterwards explains to be, “by indictment or presentment of good and lawful men, where such deeds be done, in due manner, or by writ original of the common law,” &c. &c. 2 Coke’s Institutes, 45, 50; 2 Kent’s Comm. 13; 3 Story’s Comm. 661; 4 Hill’s Rep. 146: 19 Wendell, 676; 4 Dev. N. C. Rep. 15.

[* ] Because the jury pass upon the question of punishment, it must not be supposed, if they award any particular punishment, or degree of punishment, that their decision is necessarily final, any more than that their verdict that he is guilty is necessarily final. A man may be relieved of the punishment by the executive, or acquitted of the guilt by the judiciary, (on a question of law being raised,) notwithstanding the “judgment” of the jury. But he cannot be convicted of the guilt, nor subjected to the punishment, against their judgment. Their judgment is indispensable to his conviction and punishment; but it is not indispensable to his acquittal and discharge. Thus, if their judgment be in his favor, it is final; the government cannot appeal from it; but if it be against him, he may appeal to the judiciary on the question of guilt, and to the executive, (and to the judiciary also, if the legislature so provide,) on the question of punishment.