BOSTON: PUBLISHED BY BELA MARSH, No. 25 Cornhill. 1845. Entered according to Act of Congress, in the year 1845, by Lysander Spooner , in the Clerk's Office of the District Court of Massachusetts. Dow & Jackson's Anti-Slavery Press....

WHAT IS LAW? Before examining the language of the Constitution, in regard to Slavery, let us obtain a view of the principles, by virtue of which law arises out of those constitutions and compacts, by which people agree to establish government. To do this it is necessary to define the term law . Popular opinions are very loose and indefinite, both as to the true definition of law, and also as to the principle, by virtue of which law results from the compacts or contracts of mankind with each othe

WRITTEN CONSTITUTIONS. Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals—let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative. In making this examination, however, I shall n

THE COLONIAL CHARTERS. When our ancestors came to this country, they brought with them the common law of England, including the writ of habeas corpus , (the essential principle of which, as will hereafter be shown, is to deny the right of property in man,) the trial by jury, and the other great principles of liberty, which prevailed in England, and which have made it impossible that her soil should be trod by the foot of a slave. These principles were incorporated into all the charters, granted

COLONIAL STATUTES. But the colonial legislation on the subject of slavery, was not only void as being forbidden by the colonial charters, but in many of the colonies it was void for another reason, viz: that it did not sufficiently define the persons who might be made slaves . Slavery, if it can be legalized at all, can be legalized only by positive legislation. Natural law gives it no aid. Custom imparts to it no legal sanction. This was the doctrine of the King's Bench in Somerset's case, as i

THE DECLARATION OF INDEPENDENCE. Admitting, for the sake of the argument, that prior to the revolution, slavery had a constitutional existence, (so far as it is possible that crime can have such an existence,) was it not abolished by the declaration of independence? The Declaration was certainly the constitutional law of this country for certain purposes. For example, it absolved the people from their allegiance to the English crown. It would have been so declared by the judicial tribunals of th

THE STATE CONSTITUTIONS OF 1789. Of all the state constitutions, that were in force at the adoption of the constitution of the United States, in 1789, not one of them established, or recognized slavery . All those parts of the state constitutions, (i.e. of the old thirteen states,) that recognize and attempt to sanction slavery, have been inserted, by amendments, since the adoption of the constitution of the United States . All the states, except Rhode-Island and Connecticut, formed constitution

THE ARTICLES OF CONFEDERATION. The Articles of Confederation, (formed in 1778,) contained no recognition of slavery. The only words in them, that could be claimed by any body as recognizing slavery, are the following, in Art. 4, Sec. 1. "The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all the privi

THE CONSTITUTION OF THE UNITED STATES. We come now to the period commencing with the adoption of the constitution of the United States. We have already seen that slavery had not been authorized or established by any of the fundamental constitutions or charters that had existed previous to this time; that it had always been a mere abuse sustained by the common consent of the strongest party, in defiance of the avowed constitutional principles of their governments. And the question now is, whether

THE INTENTIONS OF THE CONVENTION. The intentions of the framers of the constitution, (if we could have, as we cannot, any legal knowledge of them, except from the words of the constitution,) have nothing to do with fixing the legal meaning of the constitution. That convention were not delegated to adopt or establish a constitution; but only to consult, devise and recommend. The instrument, when it came from their hands, was a mere proposal, having no legal force or authority. It finally derived

THE PRACTICE OF THE GOVERNMENT. The practice of the government, under the constitution, has not altered the legal meaning of the instrument. It means now what it did before it was ratified, when it was first offered to the people for their adoption or rejection. One of the advantages of a written constitution is, that it enables the people to see what its character is before they adopt it; and another is, that it enables them to see, after they have adopted it, whether the government adheres to

THE UNDERSTANDING OF THE PEOPLE. Although the inquiry may be of no legal importance, it may nevertheless be one pertinent to the subject, whether it be matter of history even—to say nothing of legal proof—that the people of the country did really understand or believe that the constitution sanctioned slavery? Those who make the assertion, are bound to prove it. The presumption is against them. Where is their contrary history? They will say that a part of the people were actually slaveholders, an

THE STATE CONSTITUTIONS OF 1845. Of all the existing state constitutions, (excepting that of Florida, which I have not seen,) not one of them contains provisions that are sufficient, (or that would be sufficient if not restrained by the constitution of the United States,) to authorize the slavery that exists in the states. The material deficiency in all of them is, that they neither designate, nor give the legislatures any authority to designate the persons, who may be made slaves. Without such

THE CHILDREN OF SLAVES ARE BORN FREE. The idea that the children of slaves are necessarily born slaves, or that they necessarily follow that natural law of property, which gives the natural increase of property to the owner of the original stock, is an erroneous one. It is a principle of natural law in regard to property, that a calf belongs to the owner of the cow that bore it; fruit to the owner of the tree or vine on which it grew; and so on. But the principle of natural law , which makes a c