Front Page Titles (by Subject) APPENDIX.: THE AUTHOR'S COPYRIGHT. - The Shorter Works and Pamphlets of Lysander Spooner, Vol. 2 (1862-1884)
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APPENDIX.: THE AUTHOR’S COPYRIGHT. - Lysander Spooner, The Shorter Works and Pamphlets of Lysander Spooner, Vol. 2 (1862-1884) 
The Shorter Works and Pamphlets of Lysander Spooner, vol. 2 (1862-1884) (Indianapolis: Liberty Fund, 2010).
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THE AUTHOR’S COPYRIGHT.
Inasmuch as some persons have suggested that the author’s copyright of his Articles of Association may be evaded, he has thought proper to exhibit some of the obstacles, both practical and legal, in the way of any such evasion.
The practical obstacles—or at least some of them—are shown in the following “Note,” republished from his “New System of Paper Currency.”
The subscriber believes that the right of property in ideas, is as valid, in the view both of the Common and constitutional law of this country, as is the right of property in material things; and that patent and copyright laws, instead of superseding, annulling, or being a substitute for, that right, are simply aids to it.
In publishing this system of Paper Currency, he gives notice that he is the inventor of it, and that he reserves to himself all the exclusive property in it, which, in law, equity, or natural right, he can have; and, especially, that he reserves to himself the exclusive right to furnish the Articles of Association to any Banking Companies that may adopt the system.
To secure to himself, so far as he may, this right, he has drawn up and copyrighted, not only such general Articles of Association as will be needed, but also such other papers as it will be necessary to use separately from the Articles.
Even should it be possible for other persons to draw up Articles of Association, that would evade the subscriber’s copyright, banking companies, that may adopt the system, will probable find it for their interest to adopt also the subscriber’s Articles of Association: for the reason that it will be important that Companies should all have Articles precisely, legally, and verbally alike. If their Articles should all be alike, any legal questions that may arise, when settled for one Company, would be settled for all.
Besides, if each Company were to have Articles different from those of others, no two Companies could take each other’s bills on precisely equal terms; because their legal rights, as bill holders, under each other’s Articles, would not be precisely alike, and might be very materially different.
Furthermore, if each Company were to have Articles of Association peculiar to itself, one Company, if it could take another’s bills at all, could not safely take them until the former had thoroughly examined, and satisfactorily ascertained, the legal meaning of the latter’s Articles of Association. This labor among banks, if Companies should be numerous, would be intolerable and impossible. The necessity of studying, understanding, and carrying in the mind, each other’s different Articles of Association, would introduce universal confusion, and make it impracticable for any considerable number of Companies to accept each other’s bills, or to coöperate in furnishing a currency for the public. Each Company would be able to get only such a circulation as it could get, without having its bills received by other banks. But if all banks have precisely similar Articles of Association, then one Company, so soon as it understands its own Articles, understands those of all other Companies, and can exchange bills with them readily, safely, and on precisely equal terms.
Moreover, if each separate Company were to have its peculiar Articles of Association, it would be wholly impossible for the public to become acquainted with them all, or even with any considerable number of them. It would, therefore, be impossible for the public to become acquainted with their legal rights, as bill holders, under all the different Articles. Of course they could not safely accept the currency furnished by the various Companies. But if all the Companies should have Articles precisely alike, the public would soon understand them, and could then act intelligently, as to their legal rights, in accepting or rejecting the currency.
The subscriber conceives that the Articles of Association, which he has drawn up, and copyrighted, are so nearly perfect, that they will never need any, unless very trivial, alterations. In them he has intended to provide so fully for all exigencies and details, as to supersede the necessity of By-Laws. This object was important, not only for the convenience of the Companies themselves, but because any power, in the holders of Productive Stock, to enact By-Laws, might be used to embarrass the legal rights of the bill holders under the Articles of Association.
Besides, as the holders of Productive Stock are liable to be continually changing, any power, in one set of holders, to establish By-Laws, would be likely to be used to the embarrassment, or even injury, of their successors.
It is obviously important to all parties, that the powers of the Trustees, and the rights of all holders, both of Productive and Circulating Stock, should be legally and precisely fixed by the Articles of Association, so as to be incapable of modification, or interference, by any body of men less than the whole number interested.
Some of the legal obstacles, in the way of an evasion of the author’s copyright, will be seen in the following Acts of Congress, and in the subjoined legal authorities as to what constitutes an infringement of copyright.
Act of Congress of 1819, Chap. 19, Sec. 1, authorizes the courts to grant injunctions against infringers.
Act of Congress of 1831, Chap. 16, Sec. 6, provides for the punishment of infringers as follows:—
1. “Such offender shall forfeit every copy of such book to the person legally, at the time, entitled to the copyright thereof.”
Under this clause of the Act infringers would forfeit not merely those copies of their Articles of Association, which they should design to circulate, for the information of other banks and the public, but also those copies which should bear their own signatures, and which alone should constitute them a company. The forfeiture of these latter copies would dissolve the company; because there would then be no legal evidence of the existence of the company.
The company being dissolved, the holders of the currency would have no redress, except by suing the bankers for fraud.
The infringers would also forfeit their records of the transfers of the capital stock of the company; because the forms of transfer were necessarily peculiar, and are separately copyrighted, as well as included in the general copyright of the Articles of Association. By this forfeiture the legal evidence of the ownership of the stock would be lost.
The bills of the banks—that is, those found in the hands of the bankers, or of any other persons who should have taken them knowing of the infringement—would be forfeited; for the bills were necessarily peculiar, and are separately copyrighted.
The same would be true of copies of all the other papers that are separately copyrighted, comprising ten in all.
2. “Such offender * * shall also forfeit and pay fifty cents for every such sheet which may be found in his possession, either printed, or printing, published, or exposed to sale, contrary to the intent of this act, the one moiety thereof to such legal owner of the copyright as aforesaid, and the other to the use of the United States, to be recovered by action of debt in any court having competent jurisdiction thereof.”
Under this clause of the Act, the infringers will be liable to pay fifty cents for each “sheet” of all copies of the Articles of Association, and also for each sheet of the papers separately copyrighted, such as the bills, certificates of stock, transfers, &c., &c. And each separate bill, certificate of stock, or other paper, however small, is a “sheet,” within the meaning of this Act.
The following authorities are given to show what constitutes an infringement, (or “piracy,” as the infringement of a copyright is technically called).
LEGAL AUTHORITIES RELATIVE TO COPYRIGHT.
1. “Where the adoption and use of the matter of an original author, whose work is under the protection of copyright, is direct and palpable, and nothing new is added but form or dress, or an immaterial change of arrangement, the law will treat the matter as merely colorable, and will stamp it with the character of piracy”—[infringement].—Curtis on Copyright, 188.
2. “Copying is not confined to literal repetition, but includes also the various modes in which the matter of any publication may be adopted, imitated, or transferred, with more or less colorable alterations to disguise the piracy.”—Curtis on Copyright, 253.
3. “Where the resemblance does not amount to identity of parallel passages, the question [of piracy, or infringement] becomes, in substance, this—whether there be such a similitude and conformity between the two books, that the person who wrote the one must have used the other as a model, and must have copied or imitated it? In these cases the piracy is to be detected, through what have been called colorable alteration, and servile imitation.”—Curtis on Copyright, page 256.
4. “If the court can see proof that the defendant had the work of the plaintiff before him, and used it as a model for his own, in copying and imitating it, without drawing from common sources, or common materials, it will hold the resemblances to be not accidental, and not necessary, notwithstanding the alterations and disguises that may have been introduced.”—Curtis on Copyright, page 259.
5. “It is not necessary, to amount to piracy, that one work should be a copy of the other, and not an imitation. There may be a close imitation, so close as to be a mere evasion of the copyright, without being an exact and literal copy.”—Curtis on Copyright, page 259.
6. “The general doctrine of the law is, that none are entitled to save themselves trouble and expense, by availing themselves, for their own profit, of other men’s works, still entitled to the protection of Copyright.”—Curtis on Copyright, page 264.
7. “In the analagous case of patent rights, the subject of an existing and valid patent cannot be taken as the superstructure of an improvement. If the improvement cannot be used, without the subject of an existing grant, the inventor of the improvement must wait until the grant has expired. But he may take out a patent for the improvement by itself, and sell it.”—Curtis on Copyright, page 264, note.
8. Judge Thompson (U. S. Court) said:
“The law was intended to secure to authors the fruits of their skill, labor, and genius, for a limited time; and if, in this instance, the defendant had availed himself of the surveys of the plaintiff in compiling his chart, the plaintiff was entitled to a verdict.”—Blunt vs. Patten, 2 Paine’s Circuit Court Reports, p. 396.
9. Lord Mansfield said:
“The Act that secures copyrights to authors, guards against the piracy of the words and sentiments; but it does not prohibit writing on the same subjects. As in the case of histories and dictionaries.”—Quoted in note to Blunt vs. Patten, 2 Paine’s C. C. R., page 402.
10. In regard to the copyright of a musical composition, Judge Nelson (U. S. Court) said:
“The composition of a new air or melody is entitled to protection; and the appropriation of the whole, or of any substantial part of it, without the license of the author, is a piracy [infringement]. * * If the new air be substantially the same as the old, it is no doubt a piracy. * * The original air requires genius for its construction; but a mere mechanic in music, it is said, can make the adaptation or accompaniment. The musical composition, contemplated by the statute, must doubtless be substantially a new and original work; and not a copy of a piece already produced, with additions and variations, which a writer of music with experience and skill might readily make. Any other construction of the Act would fail to afford the protection intended to the original piece from which the air is appropriated. The new arrangement and adaptation must not be allowed to incorporate such parts and portions of it as may seriously interfere with the right of the author; otherwise the copyright would be worthless.”—Jolie vs. Jaques et al, 1 Blatchford’s Circuit Court Reports, pp. 625-6.—U. S. Digest for 1852,—Title Copyright.*
11. In the case of Folsom et al, vs. Marsh et al, Judge Story said:
“It is certainly not necessary, to constitute an invasion of copyright, that the whole work should be copied, or even a large portion of it, in form or in substance. If so much is taken that the value is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient in point of law, to constitute a piracy pro tanto. The entirety of the copyright is the property of the author; and it is no defence that another person has appropriated a part, and not the whole, of any property. Neither does it necessarily depend upon the quantity taken, whether it is an infringement of the copyright, or not. It is often affected by the value of the materials taken, and the importance of it to the sale of the original work. Lord Cottenham, in the recent cases of Bramhall vs. Halcomb, (3 Mylne and Craig, 737-738,) and Saunders vs. Smith, (3 Mylne and Craig, R. 711, 736, 737,) adverting to this point, said, ‘When it comes to a question of quantity, it must be very vague. One writer might take all the vital part of another’s book, though it might be but a small portion of the book in quantity. It is not only quantity, but value, that is always looked at. It is useless to refer to any particular cases, as to quantity.’ In short, we must often, in deciding questions of this sort, look to the nature and object of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original works.”—2 Story’s C. C. R. p. 115.—Curtis on Copyright, p. 248, note.
12. Extracts from Judge Story’s opinion in the case of Emerson vs. Davies, 3 Story’s Circuit Court Reports, p. 768.
Head Notes to the Case.
1. “Any new and original plan, arrangement, or combination of materials, will entitle the author to a copyright therein, whether the materials themselves be new or old.”
2. “Whoever by his own skill, labor, and judgment, writes a new work, may have a copyright therein, unless it be directly copied, or evasively imitated from another work.”
4. “To constitute a piracy [infringement] of copyright, it must be shown that the original work has been either substantially copied, or has been so imitated as to be a mere evasion of the copyright.”
Extracts from the Opinion of Story, Judge.
“An author has as much right in his plan, and in his arrangements, and in the combination of his materials, as he has in his thoughts, sentiments, opinions, and in his modes of expressing them. The former, as well as the latter, may be more useful, or less useful, than those of another author; but that, although it may diminish or increase the relative values of their works in the market, is no ground to entitle either to appropriate to himself the labor or skill of the other, as embodied in his own work.” Page 782.
“No person had a right to borrow the same plan, and arrangement, and illustrations, and servilely copy them into any other work.” Page 783.
“If the defendant, Davies, had before him, at the time, the work of the plaintiff, and used it as a model for his own plan, arrangement, examples, and tables, then I should say, following the doctrine of Lord Ellenborough, in Roworth vs. Wilkes, that it was an infringement of the plaintiff’s copyright, notwithstanding the alterations and disguises in the forms of the examples and the unit marks.” Page 792.
“A man has a right to the copyright of a map of a State or country, which he has surveyed, or caused to be compiled from existing materials, at his own expense, or skill, or labor, or money. Another man may publish another map of the same State or country, by using the like means or materials, and the like skill, labor, and expense. But then he had no right to publish a map taken substantially and designedly from the map of the other person, without any such exercise of skill, or labor, or expense. If he copies substantially from the map of the other, it is downright piracy; although it is plain that both maps must, the more accurate they are, approach nearer in design and execution to each other. He, in short, who, by his own skill, judgment, and labor, writes a new work, and does not merely copy that of another, is entitled to a copyright therein; if the variations are not merely formal and shadowy, from existing works.” Page 781.
“In Trusler vs. Murray, (1 East R. p. 362, note,) Lord Kenyon put the point in the same light, and said: ‘The main question here, was, whether, in substance, the one work is a copy and imitation of the other. * * The same doctrine was recognized by the Court of King’s Bench, in Cary vs. Longman & Rees (1 East, p. 358); and it was finally acted on in Mathewson vs. Stockdale (12 Vesey, page 270), and Longman vs. Winchester (16 Vesey, p. 269), and Wilkins vs. Aiken (17 Vesey R., p. 422, 424, 425), in the Court of Chancery. So that, I think, it may be laid down as the clear result of the authorities in cases of this nature, that the true test of piracy [infringement] or not, is to ascertain whether the defendant has, in fact, used the plan, arrangements, and illustrations of the plaintiff, as the model of his own book, with colorable alterations and variations only to disguise the use thereof; or whether his work is the result of his own labor, skill, and use of common materials, and common sources of knowledge, open to all men, and the resemblances are either accidental, or arising from the nature of the subject. In other words, whether the defendant’s book is, quoad hoc, a servile or evasive imitation of the plaintiff’s work, or a bona fide original compilation from other common or independent sources.” Page 793.
“The change of costume of the fencing figures, in the case before Lord Ellenborough, was treated as a mere evasion.” Page 794.
“To amount to an infringement, it is not necessary that there should be a complete copy or imitation in use throughout; but only that there should be an important and valuable portion, which operates injuriously to the copyright of the plaintiff.” Page 795.
He quotes Lord Eldon, as saying:
“If a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by the law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. If an individual chooses in any work to mix my literary matter with his own, he must be restrained from publishing the literary matter which belongs to me; and if the parts of the work cannot be separated, and if by that means the injunction, which restrained the publication of my literary matter, prevents also the publication of his own literary matter, he has only himself to blame.” Page 796.
“It has been said that, to amount to piracy [infringement] the work must be a copy, and not an imitation. That, as a general proposition, cannot be admitted. It is true the imitation may be very slight and shadowy. But, on the other hand, it may be very close, and so close as to be a mere evasion of the copyright, although not an exact and literal copy.” Page 797.
“If it substantially includes the essential parts of the plaintiff’s plan, of his arrangement, examples, and tables, so as to supersede the work of the plaintiff, it is a violation of his copyright.” Page 797.
13. In the case of Webb, et al, vs. Powers, et al, Judge Woodbury said:
“The leading inquiry then arises, which is decisive of the general equities between these parties, whether the book of the defendant’s taken as a whole, is substantially a copy of the plaintiff’s? whether it has virtually the same plan and character throughout, and is intended to supersede the other in the market with the same class of readers and purchasers, by introducing no considerable new matter, or little or nothing new, except colorable deviations.”—2 Woodbury & Minot’s Circuit Court R., page 514.
THOMAS DREW vs. JOHN M. CLARK.
ARGUMENT FOR PETITIONER.
The alleged contempt for which the petitioner was condemned consisted in his refusal to be sworn before a committee of the legislature; not in his refusal to answer questions after he had been sworn, but in his refusal to be sworn.
His objection to being sworn did not arise from any conscientious scruples as to taking an oath; nor from any fear of criminating himself; nor from any objection whatever to testifying before a committee of the legislature; nor from any objection to testifying in regard to any subject-matter whatever which the legislature has authority to investigate by compulsory testimony. He concedes fully that, if anybody could be compelled to be sworn in this case, he could be. Nor does he now seek to draw in question the right of the legislature to investigate any subject they please, by merely voluntary testimony. He only questions the extent of their power to investigate by compulsory testimony.
His whole objection to being sworn, in the present case, rested simply upon the fact that it did not appear from any papers furnished to him, nor from any authority or information legally in his possession, that the subject-matter of the investigation was one which the legislature had authority to investigate by compulsory testimony.
We suppose the rule is imperative everywhere, in the judicial tribunals as well as before committees of the legislature, that, before a person can be required to be sworn, he is entitled, if he desires it, to be informed of the subject-matter in regard to which he is to testify, in order that he may judge whether he can take the oath with a conscientious intention to fulfil it. We suppose that no one can be required to swear blindly; that is, that no one can be required to swear to testify, without knowing what he is to testify about. Such a requirement and such an oath would be absurd as well as immoral, because they would involve the taking of an oath which he not only might not conscientiously intend to fulfil, but which he even could not conscientiously fulfil.
If, then, a person has a right, before he is sworn, to know the subject-matter in regard to which he is to testify, he has the further right to judge, at his peril of course, whether that subject-matter be one in regard to which he can lawfully be compelled to testify. If the subject-matter be one in regard to which he may lawfully be compelled to testify, and he refuses to be sworn, he must take the consequences. But, if the subject-matter be one in regard to which he could not lawfully be compelled to testify, he stands justified in his refusal even to be sworn. He cannot be required to take an oath which he will be under no obligation to fulfil after he has taken it. He cannot be required to swear that he will testify, either fully or partially, in regard to a particular subject-matter, when he cannot lawfully be required to testify to anything at all in regard to it.
If, for example, a man cannot lawfully be required to give the legislature any information at all as to what he and his family usually eat at breakfast, dinner and supper, he cannot lawfully be required to swear that he will give them any such information. It would be manifestly absurd and immoral for them to require him to swear, and for him to swear, that he would give them any such information at all on this subject, when they could not afterwards lawfully require him to fulfil his oath, and when he had no intention of fulfilling it.
To require him to be sworn in such a case is equivalent to requiring him to swear falsely.
The ground taken by the Senate, as all their proceedings show, is, that, in the case just supposed, he could lawfully be required to take the oath that he would give them this information in regard to breakfast, dinner and supper, even though he could not afterwards be required to give it.
The position of the Senate is really this,—that they have a right to compel a man to take as many oaths as they can invent and propound to him, even though they have not the right to compel him to fulfil one of them.
The Senate absurdly require that a man shall first surrender his conscience wholly into their keeping, so far as to take all the oaths they may proffer him. When he has done that,—when he has acknowledged their authority over his conscience to the extent of making him take the oath,—they may then perhaps from choice, or they may be compelled by law, to give back to him his conscience, and say to him, “You may now do as you please about fulfilling these oaths. The law does not require you to fulfil them; but it did require you to take them.”
Placed in the best possible light, the position of the Senate is this,—that they will compel him to be sworn, while they wholly ignore and postpone the question whether he will be under any obligation to testify after he has been sworn.
The position of the prisoner, on the other hand, is this,—that inasmuch as the subject-matter is, on the face of it, one in regard to which he cannot lawfully be required to give any testimony at all, he cannot lawfully be required to swear that he will give any.
This case may be illustrated by another. Suppose a man were required to be sworn to give testimony in a trial of his wife for murder; and he should object that his being sworn could be of no avail, inasmuch as he could not be required to testify after he had so sworn. Must not the court, before insisting that he be sworn, decide whether he could be required to testify after he has been sworn? And, if they decide that he could not be required to testify, must they not then excuse him from being sworn? Clearly so.
The whole object of the law, in requiring the oath, is to get true and lawful testimony. If the law does not require the testimony, it would be absurd to say that it required the oath.
Where the law does not require a man to give his testimony, it is mere senseless, useless, brutal tyranny to require him to be sworn.
It is just as easy for any tribunal to decide, before a man is sworn, whether he can be required to testify, as it is to decide it afterwards.
Suppose a judicial court should summons a man before them as a witness, and then, instead of requiring him to swear that he will testify to all he knows in the case of John Doe vs. Richard Roe, or the case of the Commonwealth vs. John Smith, should require him to swear that he will testify to all he knows about the Chinese Embassy, the approaching Ecumenical Council, the Alabama claims, the revolution in Spain, the war in Crete, the rebellion in Cuba, the late eruption of Vesuvius, the late earthquakes in South America, and the war in Japan; and suppose he should object that the court had no jurisdiction of those matters, and therefore could not require him to testify to anything at all in regard to them,—would it be the right of the court to say: “We now require you only to swear that you will testify on these subjects; after you shall have done that, we will consider and decide whether we have the further right to compel you to fulfil your oath?” Clearly the court must first decide whether he can be required to testify on those subjects; and if he cannot be required to testify, he cannot be required to swear that he will.
We hold, then, the following propositions to be demonstrated, viz.:—
1. That the law can, in no case whatever, require a man to be sworn until he is legally informed of the subject-matter in regard to which he is to be sworn.
2. That a man cannot lawfully be required to take any oath that he cannot lawfully be required to fulfil.
3. That a man cannot lawfully be compelled to be sworn before any tribunal that has no lawful authority to investigate, by compulsory testimony, the particular subject-matter in regard to which he is to be sworn.
From the preceding propositions it necessarily follows, that, before any person can be compelled to be sworn before a committee of the legislature, he must have legal notice that the subject-matter, in regard to which he is to be sworn, is one which the legislature has a right to investigate by means of compulsory testimony; that it is not competent for the legislature to compel a person to be sworn in a case in which they would have no authority to require him to testify after he was sworn.
In this case, the prisoner claims that he had no legal information that the subject-matter, in regard to which he was required to testify was one which the legislature had any authority to investigate by compulsory testimony. The only legal information he had on this point was a certified copy of the following Order and summons, to wit:—
COMMONWEALTH OF MASSACHUSETTS.
In Senate, February 23, 1869.
Ordered, That the Joint Special Committee to inquire into charges of corruption against corporations, parties and persons, be authorized to send for persons and papers.
Sent down for concurrence.
S. N. Gifford,Clerk.
House of Representatives, February 24, 1869.
W. S. Robinson,Clerk.
State House, Boston, April 7, 1869.
To Thomas Drew, of Newton, in the County of Middlesex:—
Pursuant to the above Order you are required to appear before the committee therein mentioned, at the State House in Boston, on Wednesday, the fourteenth day of April current, at nine o’clock, A. M., then and there to give evidence of what you know relating to the subject-matter of said investigation, and also have with you such papers, writings and documents, relating thereto, as may be in your possession.
By order of the Committee,
A true copy.
The petitioner claims that this Order, on the face of it, discloses no case which the legislature has a right to investigate by compulsory testimony.
It clearly shows no case that is within the judicial power of the legislature or of either branch of it,—that is to say, it is not a summons to testify in any case where the election or qualifications of a member of the House or Senate is to be settled; it is not a summons to testify in any case of impeachment; it is not a summons to testify in any case of the expulsion or punishment of a member of the House or Senate; it is not a summons to testify in any case of alleged contempt that had previously arisen, and which it was within the judicial power of the House or Senate to try and punish by virtue of the constitution, part second, chapter 1, section 3, articles 10 and 11, which are given in the note.*
Furthermore, this Order is not a summons to testify in regard to any matters or acts done in any State office or institution, as for example, the offices of the Secretary, Treasurer or Auditor, or the State Prison, the public jails, the lunatic asylum, the State alms-houses, the Reform School, or any other public institution which is under the immediate control of the legislature.
The only remaining question, then, that can arise as to the legality of this Order, is, whether the legislature has power, by means of compulsory testimony, “to inquire into charges of corruption against corporations, parties and persons.”
The petitioner says that these words utterly fail to present any case, in regard to which the legislature can compel any one to testify, either before the legislature itself, or any of its committees.
The words certainly cannot be said to present any criminal case on the part of either “corporations, parties or persons;” for, if by the word “corruption” was meant legal criminality, it is clear that the case—not being within the special judicial power given to the legislature, or either branch of it—could not lawfully be “inquired into” by the legislature, by means of compulsory testimony, but must go before the regular judicial tribunals: and it has the right to go there unembarrassed and unprejudiced by any investigations or disclosures on the part of the legislature.
If, then, it must be admitted that the word “corruption,” as used in this Order, does not mean any legal criminality, it must be conceded to mean only some one or more other kinds of “corruption,” as for example, moral, religious, political, or even physical “corruption.” And inasmuch as it designates no one kind of “corruption,” and designates no particular “corporations, parties or persons” that are suspected of it, the Order is, on the face of it, a mere wild, roving commission to search for anything and everything, physical, moral, religious and political, which the committee may see fit to designate by the term “corruption,” on the part of any and all “corporations,” such as colleges, academies and churches, as well as railroad, banking, insurance, manufacturing and mining “corporations,” and also on the part of any and all “parties and persons,” men, women and children, within the limits of the Commonwealth.
Under this commission, full inquisition, open or secret, could be made into the physical cleanliness or filthiness, the moral purity or impurity, the religious sincerity or hypocrisy, and the religious and political orthodoxy and heterodoxy, of every individual, and every association of individuals, in the Commonwealth.
No narrower limits than these can be assigned to the investigations of the Committee, if they can act under the Order at all. Don Quixote himself, in the height of his folly, never conceived of an enterprise so absurd and ridiculous as this inugurated by the legislature of Massachusetts, if we are to take this Order as the exponent of their intentions.
Whether the legislature can carry on this illimitable inquiry, by means of merely voluntary testimony, the petitioner is not now concerned to inquire. But that they can carry it on by means of compulsory testimony, he denies. The Senate, on the other hand, insists that the legislature can not only make such inquiry, but also that they can even compel testimony for that purpose. And that is the issue that has been made up between the petitioner and the Senate, and is now before this court.
The constitution (Part II. Chap. 1, Sect. 1, Art. 4,) contains these words:—
“And, further, full power and authority are hereby given and granted to the said General Court, from time to time, to make, ordain and establish, all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the governing and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof,” etc., etc.
This legislative power would seem to be as ample as any reasonable body of legislators could desire. At any rate, it is the utmost that the people of Massachusetts have seen fit to give to their legislature; and if the legislature desire more power, they must ask the people to give them more, by an amendment to the constitution, instead of usurping it themselves.
The constitution, having given this liberal power to the legislature in the making of laws, has been explicit in declaring that the enforcement of these laws upon the people, and all questions as to whether these laws have been violated by the people, shall be determined by the judicial tribunals alone, (except in the few cases where special judicial power is given to the legislature, governor and council.)
And the petitioner insists that all that the constitution requires of the people is, that they shall obey these laws, as interpreted, sanctioned and enforced by the judiciary.
But if, in addition to all this power of making laws, and requiring obedience to them on the part of the people, the legislature can institute inquisitions, either open, or (as in this case) secret, into the moral and religious character, either of the people generally, or of particular individuals, and can compel persons to come before these inquisitorial bodies, and tell everything they may know of their neighbors and fellow-citizens, which can be classed under so indefinite and comprehensive a term as “corruption,” the same to be reported and spread abroad, under the sanction of the legislature, to damage the interests, blacken the reputations and destroy the happiness of persons charged with no violation of law, our government is a thoroughly infamous and detestable one,—such an one as no people could ever reasonably be presumed to have consented to, and such as no people ought to tolerate for a moment.
Such a power on the part of the legislature would be ample to open the floodgates of detraction and slander upon any and all whom the suspicion, prejudice, envy or malice of members of the legislature, or of those of whom they were the tools, might seek to destroy. And all this could be done under the protection of their legislative privileges. Both witnesses and legislators would be under this protection, and consequently free of all liability to answer before the judicial tribunals for their crimes.
If such really be the powers of our legislature, it is certain, though not remarkable, that we have never, until now, had a legislature that saw fit to exercise, or even to assert, these infamous powers with which they were intrusted. That these powers should now be asserted and insisted on, to the extent of sending a man to prison for refusing to become a tool of the legislature in this behalf, is, thank God, a phenomenon as rare as it is disgusting.
The petitioner, then, holds it clear that the legislature have no power, at least by means of compulsory testimony, to institute any general inquisition, either open or secret, into the physical, moral, religious and political purity or “corruption” of the people at large in this Commonwealth.
The only remaining question is, whether they have this right in regard to “corporations.”
On this point the petitioner has only this to say, viz.:—
1. That a “corporation” is not a creature of the legislature, in any such sense as would give the legislature any judicial power over it. The legislature cannot possibly get judicial power over it by any bargain or contract for that purpose incorporated in its charter. If it could get this power by a bargain with a number of individuals, granting them privileges on that condition, it could get it over single individuals by the same means. It could get it over every individual to whom they could offer sufficient inducements. And thus the judicial power, which is expressly denied to the legislature by the constitution, might nevertheless be wholly or partially acquired by it by means of contracts with individuals. And to that extent the constitution would be circumvented and nullified.
2. A corporation, as stated by the petitioner before the Senate, is necessarily only a number of citizens, having the same rights, and subject to the same liabilities, as other citizens, with only this difference, viz., that the legislature has granted them, and they have accepted, certain privileges, subject only to specific conditions. Whether they have violated these conditions, and incurred the penalties annexed to such violation, must always be a judicial question, which the legislature can no more try than it can try any other judicial question. And, if the legislature has no power to try any such question, it can compel no one to testify in regard to it.
3. If no violation of law be charged upon a corporation, but the legislature nevertheless contemplates amending or repealing its charter, or making new laws concerning it, in accordance with the discretionary power reserved by Revised Statutes, chap. 68, sect. 41, and desires to have its discretion enlightened as to the needful or appropriate legislation in this behalf, then the petitioner claims that the power thus reserved by the legislature is only the same as, and a part of, that general discretionary power which the legislature first exercised in granting the charter, and such as the legislature has in regard to any and all other subjects of legislation; and that the legislature, therefore, can no more compel a person to enlighten their discretion on the subject of amending or repealing the charters of “corporations,” than it can compel him to enlighten their discretion on any other ordinary subject of legislation. It can certainly have no more power in regard to amending or repealing a charter than it had originally in granting it. And, as it had no power to compel testimony to enlighten their discretion as to granting the charter, it can have no power to compel testimony to enlighten their discretion as to amending or repealing it.
The legislature certainly cannot compel Agassiz to enlighten their discretion as to the legislation necessary or proper in regard to the culture of fish, merely because they propose to legislate upon that subject. Neither can it compel either a scientific or practical agriculturist to enlighten their discretion as to the expediency of a State agricultural college, merely because the legislature contemplate establishing such a college. If the legislature do not feel themselves competent, of their own knowledge, to legislate on the ordinary subjects of legislation, they must enlighten themselves either by such information at other persons may freely and voluntarily give them, or such as can be obtained by offering proper rewards. They certainly cannot adopt the preposterous course of bringing against individuals the loose and indefinite charge of “corruption,” and then, under color of investigating that charge, compel persons to come before them, and enlighten their general ignorance, and thus qualify them for their legislative duties. So infamous a proceeding can no more be resorted to, for the purpose of enlightening their discretion as to any general legislation relating to “corporations,” than it can be to enlighten their discretion as to any general legislation relating to the people at large.
The petitioner has thus presented his case as he claims it must stand on the Order before quoted, for refusing to obey which he was tried, condemned and imprisoned; and as he therefore claims that it must stand before this court, whatever other testimony, of a subsequent nature, may be attempted to be brought into it.
That Order to appear before the Committee, and give evidence of what he knew relating simply to “charges of corruption against corporations, parties and persons,” was the only legal information he had as to the subject-matter in regard to which he was required to be sworn.
On his first arraignment before the Senate, he asked for a certified copy of the other and original Order under which the Committee was appointed, which he informed the Senate he had never seen, and which he supposed might give him further light as to the subject-matter of the investigation, and consequently as to his duty, or not, to be sworn. He also asked for time in which to consult counsel, and ascertain his rights, all of which appears in the copy of his defence, among the papers now submitted to the court.
But less than twenty-four hours’ time was granted him, and during that time no certified copy of the original Order was furnished him; and he never saw a certified copy of it until after he had been tried, condemned and imprisoned.
He therefore claims that that original Order cannot now be brought into the case under any circumstances whatever.
Even if the court should be of opinion that this original Order, under which the Committee was appointed, would have modified or did modify, the powers of the Committee, so as to give them a legal subject-matter of investigation; or, supposing it to have been seen by the petitioner, that it would have given him ample information of a legal subject-matter of investigation, and thus have imposed upon him the duty of being sworn,—still he says that, inasmuch as he had never seen any certified copy of it, he cannot be said to have been legally informed of its contents, or consequently to have been under any obligation at all in regard to it, unless it were simply to request a certified copy of it, which he did, but was refused until it was too late to be used in his defence.
He therefore had no legal information as to the subject-matter of the investigation, except what was contained simply in the supplementary Order, already given, authorizing the Committee to send for persons and papers.
Since he has been in prison, he has been furnished with a certified copy of the original Order for raising the Committee. It is as follows:
COMMONWEALTH OF MASSACHUSETTS.
In Senate, Feb. 23, 1869.
Ordered, That a joint special committee, to consist of five members on the part of the House, with such as the Senate may join, be appointed to inquire if any railroad company, chartered by, and receiving aid from, this Commonwealth, has paid large sums of money, either to aid legislation in their behalf, or suppress legislation adverse to their corporate interests, and that such committee have power to send for persons and papers; and said committee is also further authorized to inquire if any other railroad company, or other corporation chartered here, or if any other party or person has, at any time, used any improper means or influence to aid or to suppress legislation.
It wil be seen that this Order is in very different terms from the one in reference to which the petitioner was tried and condemned. But he nevertheless holds that it is equally futile with the other; that it utterly fails to set forth any legal subject-matter of compulsory investigation; and that it could have been no authority for the Committee to require him to be sworn, even if it had been produced.
This Order, it will be noticed, is in two parts. The first part is in these words:—
“Ordered, That a joint special committee, to consist of five members on the part of the House, with such as the Senate may join, be appointed to inquire if any railroad company, chartered by and receiving aid from this Commonwealth, has paid large sums of money, either to aid legislation in their behalf, or suppress legislation adverse to their corporate interests; and that such committee have power to send for persons and papers.”
This part of the Order, it will be seen, is not for an inquiry as to whether the money so paid “to aid legislation in their behalf, or suppress legislation adverse to their corporate interests,” was paid for any corrupt purpose, or in any corrupt manner, whatever, but only as to whether it was paid at all.
If money has been paid at all for those purposes, it must certainly be presumed to have been paid honestly, at least until the contrary is either proved, or charged, or ordered to be inquired into.
Now, it is obvious that when a railroad corporation, like the Boston, Hartford and Erie, or the Troy and Greenfield, comes before the legislature to ask them to aid the corporation by the loan of millions of money or credit, it must not only be proper, but indispensably necessary, that they should spend “large sums of money” in collecting and arranging all the data necessary to enable the legislature to act with reasonable discretion in judging whether the loan would be a safe, judicious and proper one. Comprehensive and reliable data must be obtained as to the amount already expended on the road, the probable future cost of the road, the prospective business of the road, its relations to the interest of the Commonwealth, and the security the road can offer for the loan, before the legislature could reasonably be asked to loan a shilling, not to say millions, of the money or credit of the State. Does any one suppose that all these data can be procured and arranged, and properly presented to the legislature, otherwise than by the payment of “large sums of money”? Of course not. The simple fact that the legislature will even seriously entertain the question of making the loan, presupposes that “large sums of money” have been already “paid,” in order to enlighten the discretion of the legislature on the subject.
Since, then, this first part of the Order does not even mention such a thing as an inquiry as to whether “large sums of money” have been paid corruptly, but only as to whether they have been paid, and as it must be presumed, at least until the contrary has been either proved, or charged, or ordered to be inquired into, that the money was paid honestly,—the prisoner holds that this first part of the Order presents no legal subject-matter for investigation by means of compulsory testimony. He holds that he—a person holding no office or employment under any railroad corporation, and holding no stock in any railroad corporation, and consequently not required by its charter to join in any report of its doings to the legislature—might as well be compelled to testify whether, to his knowledge, a railroad company had paid large sums of money for running their road, for locomotives, for cars, for railroad iron, for wood or coal, or as compensation to their employees, as for aiding legislation in their favor. The whole inquiry is, on the face of it, absurd and ridiculous as a subject-matter for compulsory investigation, so long as the Order makes no charge, and directs no inquiry, as to whether the money was corruptly paid.
The same reasons will apply to the case of “large sums of money paid” by any railroad corporation “to suppress (or prevent) legislation adverse to its corporate interests.”
Does the legislature suppose that a railroad corporation, like the “Western” (that was,) or the Boston and Albany (that is now,) is going to sit still, and see the State charter, or lend millions of money or credit to, rival roads, like the Troy and Greenfield, or the Boston, Hartford and Erie, without spending “large sums of money” to protect their “corporate interests” against such “adverse legislation?” And, so long as no charge is made, or inquiry ordered, as to whether this money is paid corruptly, have the legislature any more power to compel a stranger, having no concern in these roads, to testify to what he knows as to these expenditures, than they have to compel him to testify what he knows as to their expenditures for wood, coal, locomotives, railroad iron, or any of the other ordinary and proper expenses of a railroad? Clearly not.
The petitioner, therefore, holds it to be perfectly clear that, so long as the Order makes no charge, and directs no inquiry, as to whether any railroad corporation has expended any of its money corruptly for the purposes named, the Order presents no legal subject-matter for any compulsory testimony on the subject, and especially not for any compulsory testimony from one who is no officer or employee of, or stockholder in, the corporation, and consequently has no duty imposed upon him, by the charter, or other laws of the Commonwealth, in regard to making returns to the legislature as to the doings of the corporation.
But although he conceives it wholly unnecessary for him to do so, the petitioner goes still further, and claims that, even if this Order has made the charge, or directed the inquiry, as to whether money had been paid corruptly, he could not have been compelled to testify on the subject before a committee of the legislature; and for this reason, viz.: If such corrupt payment of money were in the nature of a criminal offence, under the laws of the Commonwealth,—such, for example, as bribing members of the legislature,—then he holds that the act of bribery could not have been done by the corporation in its corporate capacity (for a corporation cannot commit a crime,) but must have been done by individuals in their private capacity; and that he could be compelled to testify in regard to it only before a judicial tribunal. But if, on the other hand, such payment, whether corrupt or not, was not a legal offence under the laws of the Commonwealth, then he holds that he can no more be compelled to testify in regard to such corrupt (but not criminal) payment of money, by a corporation, than he can be compelled to testify as to similar corrupt (but not criminal) payments of money by private persons.
And this is all he feels it necessary to say in regard to the first branch of this Order.
The second branch of this Order is in these words, viz.:—
“And said committee is also further authorized to inquire if any other railroad company, or other corporation chartered here, or if any other party or person, has, at any time, used any improper means or influence to aid or suppress legislation.”
These terms, “improper means or influence,” are certainly very mild ones to be employed in describing any conduct that can be made the subject-matter of any compulsory investigation by the legislature. As the Order gives no definition of what it intends by the words, “any improper means or influence,” the petitioner is compelled to conclude that no violation of law, such as bribery, or illegal voting, is intended; for, if it were, the case could only be tried, either in another form, or before a judicial tribunal, and he could not be compelled to testify elsewhere or otherwise in regard to it.
Assuming, therefore, that no violation of law is directed by this branch of the Order to be inquired into, the petitioner is necessitated to infer that the Order intends only such other “improper means and influences,” as “corporations, parties and persons” may employ “to aid or suppress legislation;” as, for example, such “improper means and influences” (other than criminal) as “corporations, parties and persons” may employ to carry elections, to secure the election of this man who will favor their interests and wishes, and defeat the election of that man who will oppose their interests or wishes; and also such “improper means and influences” (other than criminal) as may be employed to influence members of the legislature in favor of, or against, this law or that, after they are elected.
Placing this construction upon this branch of the Order,—the only construction, he claims, that can reasonably be put upon it,—he insists that it presents no legal subject-matter for any investigation by the Committee; at least by means of compulsory testimony.
From his own special acquaintance with politics and politicians, as well as from that general knowledge on the subject which is open to all, he has no manner of doubt that “improper,” mean, selfish, jealous, tyrannical, ambitious, mercenary, and even malicious motives and influence are rife everywhere in promoting the election of this man, and opposing the election of that; and in this as well as in various other ways, aiding such legislation as individuals and coporations desire, and in suppressing (or preventing) such legislation as they oppose. He has never heard that the ballot-box was certain to purify men of their natural selfishness. On the contrary, the very nature of our institutions opens wide the door to the employment of “improper means and influences” in any and every possible degree short of crime. These means and influences abound in all parties, and with nearly or quite all individuals who have anything to do, either with electing men to the legislature, or with influencing legislation afterwards. So perfectly notorious is all this, that some very sensible persons suppose it to be hardly possible for a man even to touch politics anywhere (by way of participating in them) without being defiled. And, if such persons ever take part in them, they do so only on the principle of choosing the least between two or more enormous evils.
Nobody but a blockhead supposes politics to be pure. There is no reasonable doubt that “improper means and influences to aid or suppress legislation” entered into the election of every member of the present legislature, and have heretofore entered into the election of every member of every other legislature that has ever sat under our State Constitution. And now this (second) branch of this Order purports to authorize this Committee to inquire what “means and influences” of this kind have “at any time,” since the foundation of this government, been brought to bear on legislation!
The matter would be supremely farcical if the Senate had not shown its determination to push this investigation, even to the extent of sending men to prison for refusing to testify.
The whole inquiry is, on the face of it, to the last degree quixotic, absurd and ridiculous, considered as a legal subject-matter, in regard to which the legislature can compel the people to come before their committees, and testify as to their personal knowledge.
For these reasons, the petitioner claims that, even if he had been served with a certified copy of this Order, he would have been under no legal obligation to pay the least attention to it. But, inasmuch as he never saw a certified copy of it until he had been tried, condemned and imprisoned, he claims that the Order itself can have nothing to do with the legality or illegality of his imprisonment, unless to show more fully even, if possible, than had been done before, how utterly baseless, in both law and reason, this whole proceeding against him has been, from first to last.
The petitioner claims that the principles laid down by this court, in the first two paragraphs of their opinion in the case of Burnham vs. Morrissey (14 Gray, 238,) are ample to entitle him to be discharged by this court.
Those paragraphs are in these words, to wit:—
“The House of Representatives is not the final judge of its own powers and privileges in cases in which the rights and liberties of the subject are concerned; but the legality of its action may be examined and determined by this court. That House is not the legislature, but only a part of it, and is therefore subject in its action to the laws, in common with all other bodies, officers and tribunals within the Commonwealth. Especially is it competent and proper for this court to consider whether its proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity with the Constitution, and, if they have not been, to treat their acts as null and void.
“The House of Representatives has the power, under the Constitution, to imprison for contempt; but this power is limited to cases expressly provided for by the Constitution, or to cases where the power is necessarily implied from those constitutional functions and duties, to the performance of which it is essential. The power is directly conferred by the Constitution, chap. 1, sect. 3, arts. 10, 11; and the cases there enumerated are the only ones in which a sentence of imprisonment for a term extending beyond the session of the House can be imposed as a punishment.”
The only exception or suggestion he cares to offer, in regard to any portion of that opinion, is in regard to the meaning of certain language used by the court in the fourth paragraph, as follows:—
“The House of Representatives has many duties to perform which necessarily require it to receive evidence, and examine witnesses. . . . It may inquire into the doings of corporations which are subject to the control of the legislature, with a view to modify or repeal their charters. . . . It has often occasion to acquire a certain knowledge of facts, in order to the proper performance of legislative duties.”
What the court may have intended by this language is not clear. It is evidently mere dicta, not specially relating to the case then before them; for Burnham was a public officer, and the investigation was in regard to his official conduct. Such is not the case here; for the petitioner holds no office whatever.
If, in this language, the court meant to intimate that the legislature might have power to compel a man to come before them, and give them any and all information which he may possess, and which they may think would facilitate the performance of their general “legislative duties,” either in regard to “corporations,” or the people at large, the petitioner wholly objects, for the reasons already given, to any such power being conceded to the legislature.
He thinks the case is one that requires that a clear line should be drawn between those cases in which the legislature have, and those in which they have not, the right to compel testimony.
The petitioner utterly denies that the legislature has any general power to set up any standards whatever as to what is, or is not, “corruption,” or as to what is, or is not, “improper,” on the part of the people of this Commonwealth, otherwise than by enacting laws to be enforced by the judiciary. Until such standards are put into the form of statutes, they must necessarily be unknown and unknowable by the people. They must also necessarily be merely personal ideas in the minds of the members of the legislature, and as such entitled to no authority over, and no consideration or even cognizance by, the people. He also utterly denies the power of the legislature to compel him to become their instrument, to supply them with testimony, to be used by them for the purpose of defaming and injuring the people of the Commonwealth, on account of their not having conformed their conduct in all respects to these unknown and unknowable and merely personal ideas of the members of the legislature, on the infinite and indefinite subjects of purity and “corruption,” of propriety and “impropriety.”
A NEW BANKING SYSTEM the NEEDFUL CAPITAL FOR REBUILDING THE BURNT DISTRICT.
NEW BANKING SYSTEM
NEEDFUL CAPITAL FOR REBUILDING THE BURNT DISTRICT.
By LYSANDER SPOONER.
SOLD BY A. WILLIAMS & CO.
135 Washington Street.
Entered according to Act of Congress, in the year 1873, By LYSANDER SPOONER, in the office of the Librarian of Congress, at Washington.
Printed by Warren Richardson, 112 Washington St.
The reader will understand that the ideas presented in the following pages admit of a much more thorough demonstration than can be given in so small a space. Such demonstration, if it should be necessary, the author hopes to give at a future time.
Boston, March, 1873.
[* ] On the point of title, the court say:—“A copyright is given for the contents of a work, not for its mere title. There need be no novelty in that which is but an appendage.”—Page 627.
[* ] “The House of Representatives shall be the judge of the returns, elections, and qualifications of its own members, as pointed out in the Constitution; shall choose their own speaker, appoint their own officers, and settle the rules and orders of proceeding in their own House. They shall have authority to punish by imprisonment every person, not a member, who shall be guilty of any disrespect to the House by any disorderly or contemptuous behavior in its presence; or who, in the town where the General Court is sitting, and during the time of its sitting, shall threaten to harm the body or estate of any of its members, for anything said or done in the House, or who shall assault any of them therefor; or who shall assault or arrest any witness or other person ordered to attend the House, in his way in going or returning; or who shall rescue any person arrested by order of the House.
“And no member of the House of Representatives shall be arrested or held to bail on mesne process, during his going into, returning from, or his attending, the General Assembly.
“XI. The Senate shall have the same powers in the like cases; and Governor and Council shall have the same authority to punish in like cases; provided that no imprisonment on the warrant or order of the Governor, Council, Senate, or House of Representatives, for either of the above described offences, be for a time exceeding thirty days.
“And the Senate and House of Representatives may try and determine all cases where their rights and privileges are concerned, and which, by the Constitution, they have authority to try and determine, by Committees of their own members, or in such other way as they may respectively think best.”