Part 15 (1/2)
This definition is an utterly false, absurd, and atrocious one.
It would give congress power arbitrarily to control, obstruct, impede, derange, prohibit, and destroy commerce.
The verb ”to regulate” does not, as Marshall a.s.serts, imply the exercise of any arbitrary control whatever over the thing regulated; nor any power ”to prescribe [arbitrarily] the rule, by which” the thing regulated ”is to be governed.” On the contrary, it comes from the Latin word, _regula_, a rule; _and implies the pre-existence of a rule, to which the thing regulated is made to conform_.
To regulate one's diet, for example, is not, on the one hand, to starve one's self to emaciation, nor, on the other, to gorge one's self with all sorts of indigestible and hurtful substances, in disregard of the natural laws of health. But it supposes the pre-existence of the _natural laws of health_, to which the diet is made to conform.
A clock is not ”regulated,” when it is made to go, to stop, to go forwards, to go backwards, to go fast, to go slow, at the mere will or caprice of the person who may have it in hand. It is ”regulated” only when it is made to conform to, to mark truly, the diurnal revolutions of the earth. These revolutions of the earth const.i.tute the pre-existing rule, by which alone a clock can be regulated.
A mariner's compa.s.s is not ”regulated,” when the needle is made to move this way and that, at the will of an operator, without reference to the north pole. But it is regulated when it is freed from all disturbing influences, and suffered to point constantly to the north, as it is its nature to do.
A locomotive is not ”regulated,” when it is made to go, to stop, to go forwards, to go backwards, to go fast, to go slow, at the mere will and caprice of the engineer, and without regard to economy, utility, or safety. But it is regulated, when its motions are made to conform to a pre-existing rule, that is made up of economy, utility, and safety combined. What this rule is, in the case of a locomotive, may not be known with such scientific precision, as is the rule in the case of a clock, or a mariner's compa.s.s; but it may be approximated with sufficient accuracy for practical purposes.
The pre-existing rule, by which alone commerce can be ”regulated,” is a matter of science; and is already known, so far as the natural principle of justice, in relation to contracts, is known. The natural right of all men to make all contracts whatsoever, that are naturally and intrinsically just and lawful, furnishes the pre-existing rule, by which _alone_ commerce can be regulated. And it is the only rule, to which congress have any const.i.tutional power to make commerce conform.
When all commerce, that is intrinsically just and lawful, is secured and protected, and all commerce that is intrinsically unjust and unlawful, is prohibited, then commerce is regulated, and not before.[5]
[5] The above extracts are from a pamphlet published by me in 1864, ent.i.tled ”_Considerations for Bankers_,”
etc., pp. 55, 56, 57.
This false definition of the verb ”_to regulate_” has been used, time out of mind, by knavish lawmakers and their courts, to hide their violations of men's natural right to do their own businesses in all such ways--that are naturally and intrinsically just and lawful--as they may choose to do them in. These lawmakers and courts dare not always deny, utterly and plainly, men's right to do their own businesses in their own ways; but they will a.s.sume ”_to regulate_” them; and in pretending simply ”to regulate” them, they contrive ”to regulate” men out of all their natural rights to do their own businesses in their own ways.
How much have we all heard (we who are old enough), within the last fifty years, of the power of congress, or of the States, ”_to regulate the currency_.” And ”to regulate the currency” has always meant to fix the kind, _and limit the amount_, of currency, that men may be permitted to buy and sell, lend and borrow, give and receive, in their dealings with each other. It has also meant to say _who shall have the control of the licensed money_; instead of making it mean the suppression only of false and dishonest money, and then leaving all men free to exercise their natural right of buying and selling, borrowing and lending, giving and receiving, all such, and so much, honest and true money, or currency, as the parties to any or all contracts may mutually agree upon.
Marshall's false _a.s.sumptions_ are numerous and tyrannical. They all have the same end in view as his false definitions; that is, to establish the principle that governments have all power, and the people no rights. They are so numerous that it would be tedious, if not impossible, to describe them all separately. Many, or most, of them are embraced in the following, _viz._:
1. The a.s.sumption that, by a certain paper, called the const.i.tution of the United States--a paper (I repeat and reiterate) which n.o.body ever signed, which but few persons ever read, and which the great body of the people never saw--and also by some forty subsidiary papers, called State const.i.tutions, which also n.o.body ever signed, which but few persons ever read, and which the great body of the people never saw--all making a perfect system of the merest nothingness--the a.s.sumption, I say, that, by these papers, the people have all consented to the abolition of justice itself, the highest moral law of the Universe; and that all their own natural, inherent, inalienable rights to the benefits of that law, shall be annulled; and that they themselves, and everything that is theirs, shall be given over into the irresponsible custody of some forty little cabals of blockheads and villains called lawmakers--blockheads, who imagine themselves wiser than justice itself, and villains, who care nothing for either wisdom or justice, but only for the gratification of their own avarice and ambitions; and that these cabals shall be invested with the right to dispose of the property, liberty, and lives of all the rest of the people, at their pleasure or discretion; or, as Marshall says, ”their wisdom and discretion!”
If such an a.s.sumption as that does not embrace nearly, or quite, all the other false a.s.sumptions that usurpers and tyrants can ever need, to justify themselves in robbing, enslaving, and murdering all the rest of mankind, it is less comprehensive than it appears to me to be.
2. In the following paragraph may be found another batch of Marshall's false a.s.sumptions.
The right to contract is the attribute of a free agent, and he may rightfully coerce performance from another free agent, who violates his faith. Contracts have consequently an intrinsic obligation. _[But] When men come into society, they can no longer exercise this original natural right of coercion. It would be incompatible with general peace, and is therefore surrendered._ Society prohibits the use of private individual coercion, _and gives in its place a more safe and more certain remedy_. But the right to contract is not surrendered with the right to coerce performance.--_Ogden vs. Saunders, 12 Wheaton 350._
In this extract, taken in connection with the rest of his opinion in the same case, Marshall convicts himself of the grossest falsehood. He acknowledges that men have a natural right to make their own contracts; that their contracts have an ”intrinsic obligation”; and that they have an ”original and natural right” to coerce performance of them. And yet he a.s.sumes, and virtually a.s.serts, that men _voluntarily ”come into society_,” and ”_surrender_” to ”society” their natural right to coerce the fulfilment of their contracts. He a.s.sumes, and virtually a.s.serts, that they do this, _upon the ground, and for the reason, that ”society gives in its place a more safe and more certain remedy_”; that is, ”a more safe and more certain” enforcement of all men's contracts that have ”an intrinsic obligation.”
In thus saying that ”men come into society,” and ”surrender” to society, their ”original and natural right” of coercing the fulfilment of contracts, and that ”_society gives in its place a more safe and certain remedy_,” he virtually says, and means to say, that, _in consideration of such ”surrender” of their ”original and natural right of coercion,”
”society” pledges itself to them that it will give them this ”more safe and more certain remedy_”; that is, that it will more safely and more certainly enforce their contracts than they can do it themselves.
And yet, in the same opinion--only two and three pages preceding this extract--he declares emphatically that ”the right” of government--or of what he calls ”society”--”_to prohibit such contracts as may be deemed mischievous_, is _unquestionable_.”--_p. 347._
And as an ill.u.s.tration of the exercise of this right of ”society” to prohibit such contracts ”as may be deemed mischievous,” he cites the usury laws, thus:
The acts against usury declare the contract to be void in the beginning. They deny that the instrument ever became a contract. They deny it all original obligation; and cannot impair that which never came into existence.--_p. 348._
All this is as much as to say that, when a man has voluntarily ”come into society,” and has ”surrendered” to society ”his original and natural right of coercing” the fulfilment of his contracts, and when he has done this in the confidence that society will fulfil its pledge to ”give him a more safe and more certain coercion” than he was capable of himself, ”society” may then turn around to him, and say:
We acknowledge that you have a natural right to make your own contracts. We acknowledge that your contracts have ”an intrinsic obligation.” We acknowledge that you had ”an original and natural right” to coerce the fulfilment of them. We acknowledge that it was solely in consideration of our pledge to you, that we would give you a more safe and more certain coercion than you were capable of yourself, that you ”surrendered” to us your right to coerce a fulfilment of them.
And we acknowledge that, _according to our pledge_, you have now a right to require of us that we coerce a fulfilment of them. But after you had ”surrendered” to us your own right of coercion, we took a different view of the pledge we had given you; and concluded that it would be ”mischievous” to allow you to make such contracts. We therefore ”prohibited” your making them. And having prohibited the making of them, we cannot now admit that they have any ”obligation.” We must therefore decline to enforce the fulfilment of them. And we warn you that, if you attempt to enforce them, by virtue of your own ”original and natural right of coercion,” we shall be obliged to consider your act a breach of ”the general peace,” and punish you accordingly. We are sorry that you have lost your property, but ”society” must judge as to what contracts are, and what are not, ”mischievous.” We can therefore give you no redress. Nor can we suffer you to enforce your own rights, or redress your own wrongs.