Date: Thu, 19 Oct 89 12:46:53 PDT
From: argosy!kevin@decwrl.dec.com (Kevin S. Van Horn)
Message-Id: <8910191946.AA02745@locke.local>
To: libernet@dartvax.dartmouth.edu
Subject: Spooner's _No_Treason_

Lysander Spooner (1808-1887) was a Massachussetts lawyer noted for his
vigorous and brilliant opposition to the encroachment of the State upon
the liberty of the individual.  His writings on the unconstitutionality of
slavery influenced pre-Civil War thought.  His challenge to the postal
monopoly (he set up a thriving private post) resulted in an Act of Congress
sharply reducing postage rates.  Unfortunately, he was so successful that
Congress finally outlawed his enterprise.

The following is the first of a several-part posting of Spooner's work,
"No Treason: The Constitution of No Authority," which _Playboy_ magazine
said "may be the most subversive document ever penned in this nation."
Due to the lack of italic characters in ASCII, I have used uppercase to
indicate italicized words.

------------------------------------------------------------------------------

NO TREASON
The Constitution of No Authority

by Lysander Spooner

I.

The Constitution has no inherent authority or obligation.  It has no
authority or obligation at all, unless as a contract between man and
man.  And it does not so much as even purport to be a contract between
persons now existing.  It purports, at most, to be only a contract
between persons living eighty years ago.  [This essay was written in
1869.]  And it can be supposed to have been a contract then only between
persons who had already come to years of discretion, so as to be
competent to make reasonable and obligatory contracts.  Furthermore,
we know, historically, that only a small portion even of the people
then existing were consulted on the subject, or asked, or permitted to
express either their consent or dissent in any formal manner.  Those
persons, if any, who did give their consent formally, are all dead now.
Most of them have been dead forty, fifty, sixty, or seventy years.  AND
THE CONSTITUTION, SO FAR AS IT WAS THEIR CONTRACT, DIED WITH THEM.  They
had no natural power or right to make it obligatory upon their children.
It is not only plainly impossible, in the nature of things, that they
COULD bind their posterity, but they did not even attempt to bind them.
That is to say, the instrument does not purport to be an agreement
between any body but "the people" THEN existing; nor does it, either
expressly or impliedly, assert any right, power, or disposition, on their
part, to bind anybody but themselves.  Let us see.  Its language is:

    We, the people of the United States (that is, the people THEN EXISTING
  in the United States), in order to form a more perfect union, insure
  domestic tranquility, provide for the common defense, promote the
  general welfare, and secure the blessings of liberty to ourselves
  AND OUR POSTERITY, do ordain and establish this Constitution for the
  United States of America.

It is plain, in the first place, that this language, AS AN AGREEMENT,
purports to be only what it at most really was, viz., a contract between
the people then existing; and, of necessity, binding, as a contract,
only upon those then existing.  In the second place, the language neither
expresses nor implies that they had any right or power, to bind their
"posterity" to live under it.  It does not say that their "posterity"
will, shall, or must live under it.  It only says, in effect, that their
hopes and motives in adopting it were that it might prove useful to
their posterity, as well as to themselves, by promoting their union,
safety, tranquility, liberty, etc.

Suppose an agreement were entered into, in this form:

We, the people of Boston, agree to maintain a fort on Governor's Island,
to protect ourselves and our posterity against invasion.

This agreement, as an agreement, would clearly bind nobody but the people
then existing.  Secondly, it would assert no right, power, or disposition,
on their part, to compel their "posterity" to maintain such a fort.  It
would only indicate that the supposed welfare of their posterity was one
of the motives that induced the original parties to enter into the
agreement.

When a man says he is building a house for himself and his posterity, he
does not mean to be understood as saying that he has any thought of binding
them, nor is it to be inferred that he is so foolish as to imagine that he
has any right or power to bind them, to live in it.  So far as they are
concerned, he only means to be understood as saying that his hopes and
motives, in building it, are that they, or at least some of them, may find
it for their happiness to live in it.

So when a man says he is planting a tree for himself and his posterity,
he does not mean to be understood as saying that he has any thought of
compelling them, nor is it to be inferred that he is such a simpleton as
to imagine that he has any right or power to compel them, to eat the fruit.
So far as they are concerned, he only means to say that his hopes and
motives, in planting the tree, are that its fruit may be agreeable to them.

So it was with those who originally adopted the Constitution.  Whatever may
have been their personal intentions, the legal meaning of their language,
so far as their "posterity" was concerned, simply was, that their hopes and
motives, in entering into the agreement, were that it might prove useful
and acceptable to their posterity; that it might promote their union, safety,
tranquility, and welfare; and that it might tend "to secure to them the
blessings of liberty."  The language does not assert nor at all imply,
any right, power, or disposition, on the part of the original parties to
the agreement, to compel their "posterity" to live under it.  If they had
intended to bind their posterity to live under it, they should have said
that their objective was, not "to secure to them the blessings of liberty,"
but to make slaves of them; for if their "posterity" are bound to live under
it, they are nothing less than the slaves of their foolish, tyrannical,
and dead grandfathers.

It cannot be said that the Constitution formed "the people of the United
States," for all time, into a corporation.  It does not speak of "the
people" as a corporation, but as individuals.  A corporation does not
describe itself as "we," nor as "people," nor as "ourselves."  Nor does a
corporation, in legal language, have any "posterity."  It supposes itself
to have, and speaks of itself as having, perpetual existence, as a single
individuality.

Moreover, no body of men, existing at any one time, have the power to
create a perpetual corporation.  A corporation can become practically
perpetual only by the voluntary accession of new members, as the old ones
die off.  But for this voluntary accession of new members, the corporation
necessarily dies with the death of those who originally composed it.

Legally speaking, therefore, there is, in the Constitution, nothing that
professes or attempts to bind the "posterity" of those who established it.

If, then, those who established the Constitution, had no power to bind, and
did not attempt to bind, their posterity, the question arises, whether
their posterity have bound themselves.  If they have done so, they can
have done so in only one or both of these two ways, viz., by voting, and
paying taxes.


II.

Let us consider these two matters, voting and tax paying, separately.  And
first of voting.

All the voting that has ever taken place under the Constitution, has been
of such a kind that it not only did not pledge the whole people to support
the Constitution, but it did not even pledge any one of them to do so, as
the following considerations show.

1. In the very nature of things, the act of voting could bind nobody but
the actual voters.  But owing to the property qualifications required,
it is probable that, during the first twenty or thirty years under the
Constitution, not more than one-tenth, fifteenth, or perhaps twentieth of
the whole population (black and white, men, women, and minors) were
permitted to vote.  Consequently, so far as voting was concerned, not more
than one-tenth, fifteenth, or twentieth of those then existing, could
have incurred any obligation to support the Constitution.

At the present time [1869], it is probable that not more than one-sixth
of the whole population are permitted to vote.  Consequently, so far as
voting is concerned, the other five-sixths can have given no pledge that
they will support the Constitution.

2. Of the one-sixth that are permitted to vote, probably not more than
two-thirds (about one-ninth of the whole population) have usually voted.
Many never vote at all.  Many vote only once in two, three, five, or ten
years, in periods of great excitement.

No one, by voting, can be said to pledge himself for any longer period than
that for which he votes.  If, for example, I vote for an officer who is
to hold his office for only a year, I cannot be said to have thereby
pledged myself to support the government beyond that term.  Therefore, on
the ground of actual voting, it probably cannot be said that more than
one-ninth or one-eighth, of the whole population are usually under any
pledge to support the Constitution.  [In recent years, since 1940, the
number of voters in elections has usually fluctuated between one-third and
two-fifths of the populace.]

3. It cannot be said that, by voting, a man pledges himself to support the
Constitution, unless the act of voting be a perfectly voluntary one on his
part.  Yet the act of voting cannot properly be called a voluntary one on
the part of any very large number of those who do vote.  It is rather a
measure of necessity imposed upon them by others, than one of their own
choice.  On this point I repeat what was said in a former number, viz.:

  "In truth, in the case of individuals, their actual voting is not to
  be taken as proof of consent, EVEN FOR THE TIME BEING.  On the
  contrary, it is to be considered that, without his consent having even
  been asked a man finds himself environed by a government that he cannot
  resist; a government that forces him to pay money, render service, and
  forego the exercise of many of his natural rights, under peril of
  weighty punishments.  He sees, too, that other men practice this tyranny
  over him by the use of the ballot.  He sees further, that, if he will
  but use the ballot himself, he has some chance of relieving himself from
  this tyranny of others, by subjecting them to his own.  In short, he
  finds himself, without his consent, so situated that, if he use the
  ballot, he may become a master; if he does not use it, he must become
  a slave.  And he has no other alternative than these two.  In self-
  defence, he attempts the former.  His case is analogous to that of a man
  who has been forced into battle, where he must either kill others, or
  be killed himself.  Because, to save his own life in battle, a man takes
  the lives of his opponents, it is not to be inferred that the battle is
  one of his own choosing.  Neither in contests with the ballot -- which is
  a mere substitute for a bullet -- because, as his only chance of self-
  preservation, a man uses a ballot, is it to be inferred that the contest
  is one into which he voluntarily entered; that he voluntarily set up
  all his own natural rights, as a stake against those of others, to be
  lost or won by the mere power of numbers.  On the contrary, it is to be
  considered that, in an exigency into which he had been forced by others,
  and in which no other means of self-defence offered, he, as a matter of
  necessity, used the only one that was left to him.

  "Doubtless the most miserable of men, under the most oppressive government
  in the world, if allowed the ballot, would use it, if they could see any
  chance of thereby meliorating their condition.  But it would not,
  therefore, be a legitimate inference that the government itself, that
  crushes them, was one which they had voluntarily set up, or even consented
  to.

  "Therefore, a man's voting under the Constitution of the United States, is
  not to be taken as evidence that he ever freely assented to the
  Constitution, EVEN FOR THE TIME BEING.  Consequently we have no proof that
  any very large portion, even of the actual voters of the United States,
  ever really and voluntarily consented to the Constitution, EVEN FOR THE
  TIME BEING.  Nor can we ever have such proof, until every man is left
  perfectly free to consent, or not, without thereby subjecting himself or
  his property to be disturbed or injured by others."

As we can have no legal knowledge as to who votes from choice, and who from
the necessity thus forced upon him, we can have no legal knowledge, as to
any particular individual, that he voted from choice; or, consequently,
that by voting, he consented, or pledged himself, to support the government.
Legally speaking, therefore, the act of voting utterly fails to pledge
ANY ONE to support the government.  It utterly fails to prove that the
government rests upon the voluntary support of anybody.  On general
principles of law and reason, it cannot be said that the government has
any voluntary supporters at all, until it can be distinctly shown who its
voluntary supporters are.

4. As taxation is made compulsory on all, whether they vote or not, a large
proportion of those who vote, no doubt do so to prevent their own money
being used against themselves; when, in fact, they would have gladly
abstained from voting, if they could thereby have saved themselves from
taxation alone, to say nothing of being saved from all the other usurpations
and tyrannies of the government.  To take a man's property without his
consent, and then to infer his consent because he attempts, by voting, to
prevent that property from being used to his injury, is a very insufficient
proof of his consent to support the Constitution.  It is, in fact, no
proof at all.  And as we can have no legal knowledge as to who the
particular individuals are, if there are any, who are willing to be taxed
for the sake of voting, we can have no legal knowledge that any particular
individual consents to be taxed for the sake of voting; or, consequently,
consents to support the Constitution.

5. At nearly all elections, votes are given for various candidates for the
same office.  Those who vote for the unsuccessful candidates cannot properly
be said to have voted to sustain the Constitution.  They may, with more
reason, be supposed to have voted, not to support the Constitution, but
specially to prevent the tyranny which they anticipate the successful
candidate intends to practice upon them under color of the Constitution; and
therefore may reasonably be supposed to have voted against the Constitution
itself.  This supposition is the more reasonable, inasmuch as such voting
is the only mode allowed to them of expressing their dissent to the
Constitution.

6. Many votes are usually given for candidates who have no prospect of
success.  Those who give such votes may reasonably be supposed to have
voted as they did, with a special intention, not to support, but to obstruct
the exection of, the Constitution; and, therefore, against the Constitution
itself.

7. As all the different votes are given secretly (by secret ballot), there
is no legal means of knowing, from the votes themselves, who votes for,
and who votes against, the Constitution.  Therefore, voting affords no
legal evidence that any particular individual supports the Constitution.
And where there can be no legal evidence that any particular individual
supports the Constitution, it cannot legally be said that anybody supports
it.  It is clearly impossible to have any legal proof of the intentions of
large numbers of men, where there can be no legal proof of the intentions
of any particular one of them.

8. There being no legal proof of any man's intentions, in voting, we can
only conjecture them.  As a conjecture, it is probable, that a very large
proportion of those who vote, do so on this principle, viz., that if, by
voting, they could but get the government into their own hands (or that of
their friends), and use its powers against their opponents, they would then
willingly support the Constitution; but if their opponents are to have the
power, and use it against them, then they would NOT willingly support the
Constitution.

In short, men's voluntary support of the Constitution is doubtless, in most
cases, wholly contingent upon the question whether, by means of the
Constitution, they can make themselves masters, or are to be made slaves.

Such contingent consent as that is, in law and reason, no consent at all.

9. As everybody who supports the Constitution by voting (if there are any
such) does so secretly (by secret ballot), and in a way to avoid all personal
responsibility for the acts of his agents or representatives, it cannot
legally or reasonably be said that anybody at all supports the Constitution
by voting.  No man can reasonably or legally be said to do such a thing as
assent to, or support, the Constitution, UNLESS HE DOES IT OPENLY, AND IN
A WAY TO MAKE HIMSELF PERSONALLY RESPONSIBLE FOR THE ACTS OF HIS AGENTS, SO
LONG AS THEY ACT WITHIN THE LIMITS OF THE POWER HE DELEGATES TO THEM.

10. As all voting is secret (by secret ballot), and as all secret governments
are necessarily only secret bands of robbers, tyrants, and murderers, the
general fact that our government is practically carried on by means of such
voting, only proves that there is among us a secret band of robbers, tyrants,
and murderers, whose purpose is to rob, enslave, and, so far as necessary
to accomplish their purposes, murder, the rest of the people.  The simple
fact of the existence of such a vand does nothing towards proving that "the
people of the United States," or any one of them, voluntarily supports the
Constitution.

For all the reasons that have now been given, voting furnishes no legal
evidence as to who the particular individuals are (if there are any), who
voluntarily support the Constitution.  It therefore furnishes no legal
evidence that anybody supports it voluntarily.

So far, therefore, as voting is concerned, the Constitution, legally speaking,
has no supporters at all.

And, as a matter of fact, there is not the slightest probability that the
Constitution has a single bona fide supporter in the country.  That is to
say, there is not the slightest probability that there is a single man in 
the country, who both understands what the Constitution really is, AND
SINCERELY SUPPORTS IT FOR WHAT IT REALLY IS.

The ostensible supporters of the Constitution, like the ostensible supporters
of most other governments, are made up of three classes, viz.:  1. Knaves,
a numerous and active class, who see in the government an instrument which
they can use for their own aggrandizement or wealth.  2. Dupes -- a large
class, no doubt -- each of whom, because he is allowed one voice out of
millions in deciding what he may do with his own person and his own property,
and because he is permitted to have the same voice in robbing, enslaving,
and murdering others, that others have in robbing, enslaving, and murdering
himself, is stupid enough to imagine that he is a "free man," a "sovereign";
that this is "a free government"; "a government of equal rights," "the best
government on earth," [1] and such like absurdities.  3. A class who have
some appreciation of the evils of government, but either do not see how to
get rid of them, or do not choose to so far sacrifice their private interests
as to give themselves seriously and earnestly to the work of making a change.

-----------
  [1] Suppose it be "the best government on earth," does that prove its own
      goodness, or only the badness of all other governments?


III.


The payment of taxes, being compulsory, of course furnishes no evidence that
any one voluntarily supports the Constitution.

1. It is true that the THEORY of our Constitution is, that all taxes are
paid voluntarily; that our government is a mutual insurance company,
voluntarily entered into by the people with each other; that that each man
makes a free and purely voluntary contract with all others who are parties
to the Constitution, to pay so much money for so much protection, the same
as he does with any other insurance company; and that he is just as free
not to be protected, and not to pay tax, as he is to pay a tax, and be
protected.

But this theory of our government is wholly different from the practical
fact.  The fact is that the government, like a highwayman, says to a man:
"Your money, or your life."  And many, if not most, taxes are paid under
the compulsion of that threat.

The government does not, indeed, waylay a man in a lonely place, spring upon
him from the roadside, and, holding a pistol to his head, proceed to rifle
his pockets.  But the robbery is none the less a robbery on that account;
and it is far more dastardly and shameful.

The highwayman takes solely upon himself the responsibility, danger, and
crime of his own act.  He does not pretend that he has any rightful claim
to your money, or that he intends to use it for your own benefit.  He does
not pretend to be anything but a robber.  He has not acquired impudence
enough to profess to be merely a "protector," and that he takes men's
money against their will, merely to enable him to "protect" those infatuated
travellers, who feel perfectly able to protect themselves, or do not
appreciate his peculiar system of protection.  He is too sensible a man to
make such professions as these.  Furthermore, having taken your money, he
leaves you, as you wish him to do.  He does not persist in following you
on the road, against your will; assuming to be your rightful "sovereign,"
on account of the "protection" he affords you.  He does not keep "protecting"
you, by commanding you to bow down and serve him; by requiring you to do
this, and forbidding you to do that; by robbing you of more money as often
as he finds it for his interest or pleasure to do so; and by branding you
as a rebel, a traitor, and an enemy to your country, and shooting you down
without mercy, if you dispute his authority, or resist his demands.  He
is too much of a gentleman to be guilty of such impostures, and insults,
and villanies as these.  In short, he does not, in addition to robbing you,
attempt to make you either his dupe or his slave.

The proceedings of those robbers and murderers, who call themselves "the
government," are directly the opposite of these of the single highwayman.

In the first place, they do not, like him, make themselves individually
known; or, consequently, take upon themselves personally the responsibility
of their acts.  On the contrary, they secretly (by secret ballot) designate
some one of their number to commit the robbery in their behalf, while they
keep themselves practically concealed.  They say to the person thus
designated:

Go to A_____ B_____, and say to him that "the government" has need of money
to meet the expenses of protecting him and his property.  If he presumes to
say that he has never contracted with us to protect him, and that he wants
none of our protection, say to him that that is our business, and not his;
that we CHOOSE to protect him, whether he desires us to do so or not; and
that we demand pay, too, for protecting him.  If he dares to inquire who
the individuals are, who have thus taken upon themselves the title of "the
government," and who assume to protect him, and demand payment of him,
without his having ever made any contract with them, say to him that that,
too, is our business, and not his; that we do not CHOOSE to make ourselves
INDIVIDUALLY known to him; that we have secretly (by secret ballot)
appointed you our agent to give him notice of our demands, and, if he
complies with them, to give him, in our name, a receipt that will protect
him against any similar demand for the present year.  If he refuses to
comply, seize and sell enough of his property to pay not only our demands,
but all your own expenses and trouble beside.  If he resists the seizure
of his property, call upon the bystanders to help you (doubtless some of
them will prove to be members of our band.)  If, in defending his property,
he should kill any of our band who are assisting you, capture him at all
hazards; charge him (in one of our courts) with murder; convict him, and
hang him.  If he should call upon his neighbors, or any others who, like
him, may be disposed to resist our demands, and they should come in large
numbers to his assistance, cry out that they are all rebels and traitors;
that "our country" is in danger; call upon the commander of our hired
murderers; tell him to quell the rebellion and "save the country," cost
what it may.  Tell him to kill all who resist, though they should be
hundreds of thousands; and thus strike terror into all others similarly
disposed.  See that the work of murder is thoroughly done; that we may have
no further trouble of this kind hereafter.  When these traitors shall have
thus been taught our strength and our determination, they will be good
loyal citizens for many years, and pay their taxes without a why or a
wherefore.

It is under such compulsion as this that taxes, so called, are paid.  And
how much proof the payment of taxes affords, that the people consent to
"support the government," it needs no further argument to show.

2. Still another reason why the payment of taxes implies no consent, or
pledge, to support the government, is that the taxpayer does not know, and
has no means of knowing, who the particular individuals are who compose
"the government."  To him "the government" is a myth, an abstraction, an
incorporeality, with which he can make no contract, and to which he can give
no consent, and make no pledge.  He knows it only through its pretended
agents.  "The government" itself he never sees.  He knows indeed, by
common report, that certain persons, of a certain age, are permitted to
vote; and thus to make themselves parts of, or (if they choose) opponents
of, the government, for the time being.  But who of them do thus vote,
and especially how each one votes (whether so as to aid or oppose the
government), he does not know; the voting being all done secretly (by
secret ballot).  Who, therefore, practically compose "the government," for
the time being, he has no means of knowing.  Of course he can make no
contract with them, give them no consent, and make them no pledge.  Of
necessity, therefore, his paying taxes to them implies, on his part, no
contract, consent, or pledge to support them -- that is, to support "the
government," or the Constitution.

3. Not knowing who the particular individuals are, who call themselves "the
government," the taxpayer does not know whom he pays his taxes to.  All he
knows is that a man comes to him, representing himself to be the agent of
"the government" -- that is, the agent of a secret band of robbers and
murderers, who have taken to themselves the title of "the government," and
have determined to kill everybody who refuses to give them whatever money
they demand.  To save his life, he gives up his money to this agent.  But
as this agent does not make his principals individually known to the
taxpayer, the latter, after he has given up his money, knows no more who
are "the government" -- that is, who were the robbers -- than he did before.
To say, therefore, that by giving up his money to their agent, he entered
into a voluntary contract with them, that he pledges himself to obey them,
to support them, and to give them whatever money they should demand of him
in the future, is simply ridiculous.

4. All political power, so called, rests practically upon this matter of
money.  Any number of scoundrels, having money enough to start with, can
establish themselves as a "government"; because, with money, they can hire
soldiers, and with soldiers extort more money; and also compel general
obedience to their will.  It is with government, as Caesar said it was in
war, that money and soldiers mutually supported each other; that with money
he could hire soldiers, and with soldiers extort money.  So these villains,
who call themselves governments, well understand that their power rests
primarily upon money.  With money they can hire soldiers, and with soldiers
extort money.  And, when their authority is denied, the first use they
always make of money, is to hire soldiers to kill or subdue all who refuse
them more money.

For this reason, whoever desires liberty, should understand these vital
facts, viz.:  1. That every man who puts money into the hands of a
"government" (so called), puts into its hands a sword which will be used
against him, to extort more money from him, and also to keep him in
subjection to its arbitrary will.  2. That those who will take his money,
without his consent, in the first place, will use it for his further robbery
and enslavement, if he presumes to resist their demands in the future.
3. That it is a perfect absurdity to suppose that any body of men would
ever take a man's money without his consent, for any such object as they
profess to take it for, viz., that of protecting him; for why should they
wish to protect him, if he does not wish them to do so?  To suppose that
they would do so, is just as absurd as it would be to suppose that they
would take his moeny without his consent, for the purpose of buying food
or clothing for him, when he did not want it.  4. If a man wants
"protection," he is competent to make his own bargains for it; and nobody
has any occasion to rob him, in order to "protect" him against his will.
5. That the only security men can have for their political liberty, consists
in their keeping their money in their own pockets, until they have
assurances, perfectly satisfactory to themselves, that it will be used as
they wish it to be used, for their benefit, and not for their injury.
6. That no government, so called, can reasonably be trusted for a moment,
or reasonably be supposed to have honest purposes in view, any longer than
it depends wholly upon voluntary support.

These facts are all so vital and so self-evident, that it cannot reasonably
be supposed that any one will voluntarily pay money to a "government," for
the purpose of securing its protection, unless he first make an explicit
and purely voluntary contract with it for that purpose.

It is perfectly evident, therefore, that neither such voting, nor such
payment of taxes, as actually takes place, proves anybody's consent, or
obligation, to support the Constitution.  Consequently we have no evidence
at all that the Constitution is binding upon anybody, or that anybody is
under any contract or obligation whatever to support it.  And nobody is
under any obligation to support it.


IV.

THE CONSTITUTION NOT ONLY BINDS NOBODY NOW, BUT IT NEVER DID BIND ANYBODY.
It never bound anybody, because it was never agreed to by anybody in such a
manner as to make it, on general principles of law and reason, binding
upon him.

It is a general principle of law and reason, that a WRITTEN instrument
binds no one until he has signed it.  This principle is so inflexible a one,
that even though a man is unable to write his name, he must still "make
his mark," before he is bound by a written contract.  This custom was
established ages ago, when few men could write their names; when a clerk --
that is, a man who could write -- was so rare and valuable a person, that
even if he were guilty of high crimes, he was entitled to pardon, on the
ground that the public could not afford to lose his services.  Even at that
time, a written contract must be signed; and men who could not write,
either "made their mark," or signed their contracts by stamping their seals
upon wax affixed to the parchment on which their contracts were written.
Hence the custom of affixing seals, that has continued to this time.

The laws holds, and reason declares, that if a written instrument is not
signed, the presumption must be that the party to be bound by it, did not
choose to sign it, or to bind himself by it.  And law and reason both give
him until the last moment, in which to decide whether he will sign it, or
not.  Neither law nor reason requires or expects a man to agree to an
instrument, UNTIL IT IS WRITTEN; for until it is written, he cannot know
its precise legal meaning.  And when it is written, and he has had the
opportunity to satisfy himself of its precise legal meaning, he is then
expected to decide, and not before, whether he will agree to it or not.  And
if he do not THEN sign it, his reason is supposed to be, that he does not
choose to enter into such a contract.  The fact that the instrument was
written for him to sign, or with the hope that he would sign it, goes for
nothing.

Where would be the end of fraud and litigation, if one party could bring
into court a written instrument, without any signature, and claim to have
it enforced, upon the ground that it was written for another man to sign?
that this other man had promised to sign it? that he ought to have signed
it? that he had had the opportunity to sign it, if he would? but that he
had refused or neglected to do so?  Yet that is the most that could ever
be said of the Constitution. [1] The very judges, who profess to derive
all their authority from the Constitution -- from an instrument that nobody
ever signed -- would spurn any other instrument, not signed, that should be
brought before them for adjudication.

  [1] The very men who drafted it, never signed it in any way to bind
      themselves by it, AS A CONTRACT.  And not one of them probably
      ever would have signed it in any way to bind himself by it, AS A
      CONTRACT.

Moreover, a written instrument must, in law and reason, not only be signed,
but must also be delivered to the party (or to some one for him), in whose
favor it is made, before it can bind the party making it.  The signing is
of no effect, unless the instrument be also delivered.  And a party is at
perfect liberty to refuse to deliver a written instrument, after he has
signed it.  The Constitution was not only never signed by anybody, but it
was never delivered by anybody, or to anybody's agent or attorney.  It can
therefore be of no more validity as a contract, then can any other
instrument that was never signed or delivered.


V.

As further evidence of the general sense of mankind, as to the practical
necessity there is that all men's IMPORTANT contracts, especially those of
a permanent nature, should be both written and signed, the following facts
are pertinent.

For nearly two hundred years -- that is, since 1677 -- there has been on the
statute book of England, and the same, in substance, if not precisely in
letter, has been re-enacted, and is now in force, in nearly or quite all the
States of this Union, a statute, the general object of which is to declare
that no action shall be brought to enforce contracts of the more important
class, UNLESS THEY ARE PUT IN WRITING, AND SIGNED BY THE PARTIES TO BE HELD
CHARGEABLE UPON THEM. [At this point there is a footnote listing 34 states
whose statute books Spooner had examined, all of which had variations of
this English statute; the footnote also quotes part of the Massachussetts
statute.]

The principle of the statute, be it observed, is, not merely that written
contracts shall be signed, but also that all contracts, except for those
specially exempted -- generally those that are for small amounts, and are
to remain in force for but a short time -- SHALL BE BOTH WRITTEN AND SIGNED.

The reason of the statute, on this point, is, that it is now so easy a thing
for men to put their contracts in writing, and sign them, and their failure
to do so opens the door to so much doubt, fraud, and litigation, that men
who neglect to have their contracts -- of any considerable importance --
written and signed, ought not to have the benefit of courts of justice to
enforce them.  And this reason is a wise one; and that experience has
confirmed its wisdom and necessity, is demonstrated by the fact that it has
been acted upon in England for nearly two hundred years, and has been so
nearly universally adopted in this country, and that nobody thinks of
repealing it.

We all know, too, how careful most men are to have their contracts written
and signed, even when this statute does not require it.  For example, most
men, if they have money due them, of no larger amount than five or ten
dollars, are careful to take a note for it.  If they buy even a small bill
of goods, paying for it at the time of delivery, they take a receipted bill
for it.  If they pay a small balance of a book account, or any other small
debt previously contracted, they take a written receipt for it.

Furthermore, the law everywhere (probably) in our country, as well as in
England, requires that a large class of contracts, such as wills, deeds,
etc., shall not only be written and signed, but also sealed, witnessed, and
acknowledged.  And in the case of married women conveying their rights in
real estate, the law, in many States, requires that the women shall be
examined separate and apart from their husbands, and declare that they sign
their contracts free of any fear or compulsion of their husbands.

Such are some of the precautions which the laws require, and which
individuals -- from motives of common prudence, even in cases not required
by law -- take, to put their contracts in writing, and have them signed,
and, to guard against all uncertainties and controversies in regard to their
meaning and validity.  And yet we have what purports, or professes, or is
claimed, to be a contract -- the Constitution -- made eighty years ago, by
men who are now all dead, and who never had any power to bind US, but which
(it is claimed) has nevertheless bound three generations of men, consisting
of many millions, and which (it is claimed) will be binding upon all the
millions that are to come; but which nobody ever signed, sealed, delivered,
witnessed, or acknowledged; and which few persons, compared with the whole
number that are claimed to be bound by it, have ever read, or even seen, or
ever will read, or see.  And of those who ever have read it, or ever will
read it, scarcely any two, perhaps no two, have ever agreed, or ever will
agree, as to what it means.

Moreover, this supposed contract, which would not be received in any court
of justice sitting under its authority, if offered to prove a debt of five
dollars, owing by one man to another, is one by which -- AS IT IS GENERALLY
INTERPRETED BY THOSE WHO PRETEND TO ADMINISTER IT -- all men, women and
children throughout the country, and through all time, surrender not only
all their property, but also their liberties, and even lives, into the hands
of men who by this supposed contract, are expressly made wholly irresponsible
for their disposal of them.  And we are so insane, or so wicked, as to
destroy property and lives without limit, in fighting to compel men to
fulfill a supposed contract, which, inasmuch as it has never been signed by
anybody, is, on general princples of law and reason -- such principles as
we are all governed by in regard to other contracts -- the merest waste of
paper, binding upon nobody, fit only to be thrown into the fire; or, if
preserved, preserved only to serve as a witness and a warning of the folly
and wickedness of mankind.


VI.


It is no exaggeration, but a literal truth, to say that, by the Constitution
-- NOT AS I INTERPRET IT, BUT AS IT IS INTERPRETED BY THOSE WHO PRETEND TO
ADMINISTER IT -- the properties, liberties, and lives of the entire
people of the United States are surrendered unreservedly into the hands of
men who, it is provided by the Constitution itself, shall never be
"questioned" as to any disposal they make of them.

Thus the Constitution (Art. I, Sec. 6) provides that, "for any speech or
debate (or vote), in either house, they (the senators and representatives)
shall not be questioned in any other place."

The whole law-making power is given to these senators and representatives
(when acting by a two-thirds vote); [1] and this provision protects them from
all responsibility for the laws they make.

  [1] And this two-thirds vote may be but two-thirds of a quorum -- that is
      two-thirds of a majority -- instead of two-thirds of the whole.

The Constitution also enables them to secure the execution of all their
laws, by giving them power to withhold the salaries of, and to impeach and
remove, all judicial and executive officers, who refuse to execute them.

Thus the whole power of the government is in their hands, and they are made
utterly irresponsible for the use they make of it.  What is this but
absolute, irresponsible power?

It is no answer to this view of the case to say that these men are under
oath to use their power only within certain limits; for what care they, or
what should they care, for oaths or limits, when it is expressly provided,
by the Constitution itself, that they shall never be "questioned," or held
to any resonsibility whatever, for violating their oaths, or transgressing
those limits?

Neither is it any answer to this view of the case to say that the men
holding this absolute, irresponsible power, must be men chosen by the
people (or portions of them) to hold it.  A man is none the less a slave
because he is allowed to choose a new master once in a term of years.
Neither are a people any the less slaves because permitted periodically to
choose new masters.  What makes them slaves is the fact that they now are,
and are always hereafter to be, in the hands of men whose power over them
is, and always is to be, absolute and irresponsible. [2]

  [2] Of what appreciable value is it to any man, as an individual, that
      he is allowed a voice in choosing these public masters?  His voice
      is only one of several millions.

The right of absolute and irresponsible dominion is the right of property,
and the right of property is the right of absolute, irresponsible dominion.
The two are identical; the one necessarily implies the other.  Neither
can exist without the other.  If, therefore, Congress have that absolute
and irresponsible law-making power, which the Constitution -- according to
their interpretation of it -- gives them, it can only be because they own
us as property.  If they own us as property, they are our masters, and their
will is our law.  If they do not own us as property, they are not our
masters, and their will, as such, is of no authority over us.

But these men who claim and exercise this absolute and irresponsible
dominion over us, dare not be consistent, and claim either to be our
masters, or to own us as property.  They say they are only our servants,
agents, attorneys, and representatives.  But this declaration involves an
absurdity, a contradiction.  No man can be my servant, agent, attorney,
or representative, and be, at the same time, uncontrollable by me, and
irresponsible to me for his acts.  It is of no importance that I appointed
him, and put all power in his hands.  If I made him uncontrollable by me,
and irresponsible to me, he is no longer my servant, agent, attorney, or
representative.  If I gave him absolute, irresponsible power over my
property, I gave him the property.  If I gave him absolute, irresponsible
power over myself, I made him my master, and gave myself to him as a slave.
And it is of no importance whether I called him master or servant, agent
or owner.  The only question is, what power did I put in his hands?  Was
it an absolute and irresponsible one? or a limited and responsible one?

For still another reason they are neither our servants, agents, attorneys,
nor representatives.  And that reason is, that we do not make ourselves
responsible for their acts.  If a man is my servant, agent, or attorney,
I necessarily make myself responsible for all his acts done within the
limits of the power I have intrusted to him.  If I have intrusted him, as
my agent, with either absolute power, or any power at all, over the persons
or properties of other men than myself, I thereby necessarily make myself
responsible to those other persons for any injuries he may do them, so long
as he acts within the limits of the power I have granted him.  But no
individual who may be injured in his person or property, by acts of
Congress, can come to the individual electors, and hold them responsible
for these acts of their so-called agents or representatives.  This fact
proves that these pretended agents of the people, of everybody, are really
the agents of nobody.

If, then, nobody is individually responsible for the acts of Congress, the
members of Congress are nobody's agents.  And if they are nobody's agents,
they are themselves individually responsible for their own acts, and for the
acts of all whom they employ.  And the authority they are exercising is
simply their own individual authority; and, by the law of nature -- the
highest of all laws -- anybody injured by their acts, anybody who is
deprived by them of his property or his liberty, has the same right to hold
them individually responsible, that he has to hold any other trespasser
individually responsible.  He has the same right to resist them, and their
agents, that he has to resist any other trespassers.


VII.


It is plain, then, that on general principles of law and reason -- such
principles as we all act upon in courts of justice and in common life --
the Constitution is no contract; that it binds nobody, and never did bind
anybody; and that all those who pretend to act by its authority, are
really acting without any legitimate authority at all; that, on general
principles of law and reason, they are mere usurpers, and that everybody
not only has the right, but is morally bound, to treat them as such.

If the people of this country wish to maintain such a government as the
Constitution describes, there is no reason in the world why they should
not sign the instrument itself, and thus make known their wishes in an
open, authentic manner; in such manner as the common sense and experience
of mankind have shown to be reasonable and necessary in such cases; AND
IN SUCH MANNER AS TO MAKE THEMSELVES (AS THEY OUGHT TO DO) INDIVIDUALLY
RESPONSIBLE FOR THE ACTS OF THE GOVERNMENT.  But the people have never
been asked to sign it.  And the only reason why they have never been asked
to sign it, has been that it has been known that they never would sign
it; that they were neither such fools nor knaves as they must needs have
been to be willing to sign it; that (at least as it has been practically
interpreted) it is not what any sensible and honest man wants for himself;
nor such as he has any right to impose upon others.  It is, to all moral
intents and purposes, as destitute of obligations as the compacts which
robbers and thieves and pirates enter into with each other, but never sign.

If any considerable number of the people believe the Constitution to be
good, why do they not sign it themselves, and make laws for, and administer
them upon, each other; leaving all other persons (who do not interfere with
them) in peace?  Until they have tried the experiment for themselves, how
can they have the face to impose the Constitution upon, or even to
recommend it to, others?  Plainly the reason for absurd and inconsistent
conduct is that they want the Constitution, not solely for any honest or
legitimate use it can be of to themselves or others, but for the dishonest
and illegitimate power it gives them over the persons and properties of
others.  But for this latter reason, all their eulogiums on the Constitution,
all their exhortations, and all their expenditures of money and blood to
sustain it, would be wanting.


VIII.


The Constitution itself, then, being of no authority, on what authority does
our government practically rest?  On what ground can those who pretend to
administer it, claim the right to seize men's property, to restrain them of
their natural liberty of action, industry, and trade, and to kill all who
deny their authority to dispose of men's properties, liberties, and lives
at their pleasure or discretion?

The most they can say, in answer to this question, is, that some half,
two-thirds, or three-fourths, of the male adults of the country have a
TACIT UNDERSTANDING that they will maintain a government under the
Constitution; that they will select, by ballot, the persons to administer
it; and that those persons who may receive a majority, or a plurality, of
their ballots, shall act as their representatives, and administer the
Constitution in their name, and by their authority.

But this tacit understanding (admitting it to exist) cannot at all justify
the conclusion drawn from it.  A tacit understanding between A, B, and C,
that they will, by ballot, depute D as their agent, to deprive me of my
property, liberty, or life, ca