| NT.0.6 |
If that principle be not the principle of the Constitution, the fact should be known. If it be the principle of the Constitution, the Constitution itself should be at once overthrown.
No. 1.
I.
|
| NT.1.1.1 |
Notwithstanding all the proclamations we have made to mankind, within
the last ninety years, that our government rests on consent, and that
that was the rightful basis on which any government could rest, the late
war has practically demonstrated that our government rests upon force –
as much so as any government that ever existed.
|
| NT.1.1.2 |
The North has thus virtually said to the world: It was all very well to
prate of consent, so long as the objects to be accomplished were to
liberate ourselves from our connexion with England, and also to coax a
scattered and jealous people into a great national union; but now that
those purposes have been accomplished, and the power of the North has
become consolidated, it is sufficient for us – as for all governments –
simply to say: Our power is our right.
|
| NT.1.1.3 |
In proportion to her wealth and population, the North has probably
expended more money and blood to maintain her power over an unwilling
people, than any other government ever did. And in her estimation, it is
apparently the chief glory of her success, and an adequate compensation
for all her own losses, and an ample justification for all her
devastation and carnage of the South, that all pretence of any necessity
for consent to the perpetuity or power of government, is (as she
thinks) forever expunged from the minds of the people. In short, the
North exults beyond measure in the proof she has given, that a
government, professedly resting on consent, will expend more life and
treasure in crushing dissent, than any government, openly founded on
force, has ever done.
|
| NT.1.1.4 |
And she claims that she has done all this in behalf of liberty! In
behalf of free government! In behalf of the principle that government
should rest on consent!
|
| NT.1.1.5 |
If the successors of Roger Williams, within a hundred years after their
State had been founded upon the principle of free religious toleration,
and when the Baptists had become strong on the credit of that principle,
had taken to burning heretics with a fury never seen before among men;
and had they finally gloried in having thus suppressed all question of
the truth of the State religion; and had they further claimed to have
done all this in behalf of freedom of conscience, the inconsistency
between profession and conduct would scarcely have been greater than
that of the North, in carrying on such a war as she has done, to compel
men to live under and support a government that they did not want; and
in then claiming that she did it in behalf of the of the principle that
government should rest on consent.
|
| NT.1.1.6 |
This astonishing absurdity and self-contradiction are to be accounted
for only by supposing, either that the lusts of fame, and power, and
money, have made her utterly blind to, or utterly reckless of, the
inconsistency and enormity of her conduct; or that she has never even
understood what was implied in a government's resting on consent.
Perhaps this last explanation is the true one. In charity to human
nature, it is to be hoped that it is.
II.
|
| NT.1.2.1 |
What, then, is implied in a government’s resting on consent?
|
| NT.1.2.2 |
If it be said that the consent of the strongest party, in a
nation, is all that is necessary to justify the establishment of a
government that shall have authority over the weaker party, it may be
answered that the most despotic governments in the world rest upon that
very principle, viz: the consent of the strongest party. These
governments are formed simply by the consent or agreement of the
strongest party, that they will act in concert in subjecting the weaker
party to their dominion. And the despotism, and tyranny, and injustice
of these governments consist in that very fact. Or at least that is the
first step in their tyranny; a necessary preliminary to all the
oppressions that are to follow.
|
| NT.1.2.3 |
If it be said that the consent of the most numerous party, in a nation, is sufficient to justify the establishment of their power over the less numerous party, it may be answered:
|
| NT.1.2.4 |
First. That two men have no more natural right to exercise any kind of
authority over one, than one has to exercise the same authority over
two. A man’s natural rights are his own, against the whole world; and
any infringement of them is equally a crime, whether committed by one
man, or by millions; whether committed by one man, calling himself a
robber, (or by any other name indicating his true character,) or by
millions, calling themselves a government.
|
| NT.1.2.5 |
Second. It would be absurd for the most numerous party to talk of
establishing a government over the less numerous party, unless the
former were also the strongest, as well as the most numerous; for it is
not to be supposed that the strongest party would ever submit to the
rule of the weaker party, merely because the latter were the most
numerous. And as a matter of fact, it is perhaps never that governments
are established by the most numerous party. They are usually, if not
always, established by the less numerous party; their superior strength
consisting of their superior wealth, intelligence, and ability to act in
concert.
|
| NT.1.2.6 |
Third. Our Constitution does not profess to have been established simply
by the majority; but by “the people;” the minority, as much as the
majority.
|
| NT.1.2.7 |
Fourth. If our fathers, in 1776, had acknowledged the principle that a
majority had the right to rule the minority, we should never have become
a nation; for they were in a small minority, as compared with those who
claimed the right to rule over them.
|
| NT.1.2.8 |
Fifth. Majorities, as such, afford no guarantees for justice.
They are men of the same nature as minorities. They have the same
passions for fame, power, and money, as minorities; and are liable and
likely to be equally – perhaps more than equally, because more boldly –
rapacious, tyrannical and unprincipled, if intrusted with power. There
is no more reason, then, why a man should either sustain, or submit to,
the rule of the majority, than of a minority. Majorities and minorities
cannot rightfully be taken at all into account in deciding questions of
justice. And all talk about them, in matters of government, is mere
absurdity. Men are dunces for uniting to sustain any government, or any
laws, except those in which they are all agreed. And nothing but
force and fraud compel men to sustain any other. To say that majorities,
as such, have a right to rule minorities, is equivalent to saying that
minorities have, and ought to have, no rights, except such as majorities
please to allow them.
|
| NT.1.2.9 |
Sixth. It is not improbable that many or most of the worst of
governments – although established by force, and by a few, in the first
place – come, in time, to be supported by a majority. But if they do,
this majority is composed, in large part, of the most ignorant,
superstitious, timid, dependent, servile, and corrupt portions of the
people; of those who have been over-awed by the power, intelligence,
wealth, and arrogance; of those who have been deceived by the frauds;
and of those who have been corrupted by the inducements, of the few who
really constitute the government. Such majorities, very likely, could be
found in half, perhaps nine-tenths, of all the countries on the globe.
What do they prove? Nothing but the tyranny and corruption of the very
governments that have reduced so large portions of the people to their
present ignorance, servility, degradation, and corruption; an ignorance,
servility, degradation, and corruption that are best illustrated in the
simple fact that they do sustain governments that have so
oppressed, degraded, and corrupted them. They do nothing towards proving
that the governments themselves are legitimate; or that they ought to
be sustained, or even endured, by those who understand their true
character. The mere fact, therefore, that a government chances to be
sustained by a majority, of itself proves nothing that is necessary to
be proved, in order to know whether such government should be sustained,
or not.
|
| NT.1.2.10 |
Seventh. The principle that the majority have a right to rule the
minority, practically resolves all government into a mere contest
between two bodies of men, as to which of them shall be masters, and
which of them slaves; a contest, that – however bloody – can, in the
nature of things, never be finally closed, so long as man refuses to be a
slave.
III.
|
| NT.1.3.1 |
But to say that the consent of either the strongest party, or the most numerous party, in a nation,
is sufficient justification for the establishment or maintenance of a
government that shall control the whole nation, does not obviate the
difficulty. The question still remains, how comes such a thing as “a
nation” to exist? How do millions of men, scattered over an extensive
territory – each gifted by nature with individual freedom; required by
the law of nature to call no man, or body of men, his masters;
authorized by that law to seek his own happiness in his own way, to do
what he will with himself and his property, so long as he does not
trespass upon the equal liberty of others; authorized also, by that law,
to defend his own rights, and redress his own wrongs; and to go to the
assistance and defence of any of his fellow men who may be suffering any
kind of injustice – how do millions of such men come to be a nation,
in the first place? How is it that each of them comes to be stripped of
his natural, God-given rights, and to be incorporated, compressed,
compacted, and consolidated into a mass with other men, whom he never
saw; with whom he has no contract; and towards many of whom he has no
sentiments but fear, hatred, or contempt? How does he become subjected
to the control of men like himself, who, by nature, had no authority
over him; but who command him to do this, and forbid him to do that, as
if they were his sovereigns, and he their subject; and as if their wills
and their interests were the only standards of his duties and his
rights; and who compel him to submission under peril of confiscation,
imprisonment, and death?
|
| NT.1.3.2 |
Clearly all this is the work of force, or fraud, or both.
|
| NT.1.3.3 |
By what right, then, did we become “a nation?” By what right do
we continue to be “a nation?” And by what right do either the strongest,
or the most numerous, party, now existing within the territorial
limits, called “The United States,” claim that there really is such “a
nation” as the United States? Certainly they are bound to show the
rightful existence of “a nation,” before they can claim, on that ground,
that they themselves have a right to control it; to seize, for their
purposes, so much of every man’s property within it, as they may choose;
and, at their discretion, to compel any man to risk his own life, or
take the lives of other men, for the maintenance of their power.
|
| NT.1.3.4 |
To speak of either their numbers, or their strength, is not to the purpose. The question is by what right does the nation exist? And by what right are so many atrocities committed by its authority? or for its preservation?
|
| NT.1.3.5 |
The answer to this question must certainly be, that at least such a nation exists by no right whatever.
|
| NT.1.3.6 |
We are, therefore, driven to the acknowledgment that nations and
governments, if they can rightfully exist at all, can exist only by
consent.
IV.
|
| NT.1.4.1 |
The question, then, returns, what is implied in a government’s resting on consent?
|
| NT.1.4.2 |
Manifestly this one thing (to say nothing of the others) is necessarily
implied in the idea of a government’s resting on consent, viz: the
separate, individual consent of every man who is required to contribute,
either by taxation or personal service, to the support of the
government. All this, or nothing, is necessarily implied, because
one man's consent is just as necessary as any other man’s. If, for
example, A claims that his consent is necessary to the establishment or
maintenance of government, he thereby necessarily admits that B’s and
every other man’s are equally necessary; because B’s and every other
man's right are just as good as his own. On the other hand, if he denies
that B’s or any other particular man’s consent is necessary, he thereby
necessarily admits that neither his own, nor any other man’s is
necessary; and that government need to be founded on consent at all.
|
| NT.1.4.3 |
There is, therefore, no alternative but to say, either that the
separate, individual consent of every man, who is required to aid, in
any way, in supporting the government, is necessary, or that the consent
of no one is necessary.
|
| NT.1.4.4 |
Clearly this individual consent is indispensable to the idea of treason;
for if a man has never consented or agreed to support a government, he
breaks no faith in refusing to support it. And if he makes war upon it,
he does so as an open enemy, and not as a traitor that is, as a
betrayer, or treacherous friend.
|
| NT.1.4.5 |
All this, or nothing, was necessarily implied in the Declaration made in
1776. If the necessity for consent, then announced, was a sound
principle in favor of three millions of men, it was an equally sound one
in favor of three men, or of one man. If the principle was a sound one
in behalf of men living on a separate continent, it was an equally sound
one in behalf of a man living on a separate farm, or in a separate
house.
|
| NT.1.4.6 |
Moreover, it was only as separate individuals, each acting for himself,
and not as members of organized governments, that the three millions
declared their consent to be necessary to their support of a government;
and, at the same time, declared their dissent to the support of the
British Crown. The governments, then existing in the Colonies, had no
constitutional power, as governments, to declare the separation between England and America. On the contrary, those governments, as governments,
were organized under charters from, and acknowledged allegiance to, the
British Crown. Of course the British king never made it one of the
chartered or constitutional powers of those governments, as governments,
to absolve the people from their allegiance to himself. So far,
therefore, as the Colonial Legislatures acted as revolutionists, they
acted only as so many individual revolutionists, and not as
constitutional legislatures. And their representatives at Philadelphia,
who first declared Independence, were, in the eye of the constitutional
law of that day, simply a committee of Revolutionists, and in no sense
constitutional authorities, or the representatives of constitutional
authorities.
|
| NT.1.4.7 |
It was also, in the eye of the law, only as separate individuals, each
acting for himself, and exercising simply his natural rights as an
individual, that the people at large assented to, and ratified the Declaration.
|
| NT.1.4.8 |
It was also only as so many individuals, each acting for himself, and
exercising simply his natural rights, that they revolutionized the constitutional character
of their local governments, (so as to exclude the idea of allegiance to
Great Britain); changing their forms only as and when their convenience
dictated.
|
| NT.1.4.9 |
The whole Revolution, therefore, as a Revolution, was declared and
accomplished by the people, acting separately as individuals, and
exercising each his natural rights, and not by their governments in the
exercise of their constitutional powers.
|
| NT.1.4.10 |
It was, therefore, as individuals, and only as individuals, each acting
for himself alone, that they declared that their consent – that is,
their individual consent, for each one could consent only for himself –
was necessary to the creation or perpetuity of any government that they
could rightfully be called on to support.
|
| NT.1.4.11 |
In the same way each declared, for himself, that his own will, pleasure,
and discretion were the only authorities he had any occasion to
consult, in determining whether he would any longer support the
government under which he had always lived. And if this action of each
individual were valid and rightful when he had so many other individuals
to keep him company, it would have been, in the view of natural justice
and right, equally valid and rightful, if he had taken the same step
alone. He had the same natural right to take up arms alone to defend his
own property against a single tax-gatherer, that he had to take up arms
in company with three millions of others, to defend the property of all
against an army of tax-gatherers.
|
| NT.1.4.12 |
Thus the whole Revolution turned upon, asserted, and, in theory,
established, the right of each and every man, at his discretion, to
release himself from the support of the government under which he had
lived. And this principle was asserted, not as a right peculiar to
themselves, or to that time, or as applicable only to the government
then existing; but as a universal right of all men, at all times, and
under all circumstances.
|
| NT.1.4.13 |
George the Third called our ancestors traitors for what they did at that time. But they were not traitors in fact,
whatever he or his laws may have called them. They were not traitors in
fact, because they betrayed nobody, and broke faith with nobody. They
were his equals, owing him no allegiance, obedience, nor any other duty,
except such as they owed to mankind at large. Their political relations
with him had been purely voluntary. They had never pledged their faith
to him that they would continue these relations any longer than it
should please them to do so; and therefore they broke no faith in
parting with him. They simply exercised their natural right of saying to
him, and to the English people, that they were under no obligation to
continue their political connexion with them, and that, for reasons of
their own, they chose to dissolve it.
|
| NT.1.4.14 |
What was true of our ancestors, is true of revolutionists in general.
The monarchs and governments, from whom they choose to separate, attempt
to stigmatize them as traitors. But they are not traitors in fact;
inasmuch as they betray, and break faith with, no one. Having pledged no
faith, they break none. They are simply men, who, for reasons of their
own – whether good or bad, wise or unwise, is immaterial – choose to
exercise their natural right of dissolving their connexion with the
governments under which they have lived. In doing this, they no more
commit the crime of treason – which necessarily implies treachery,
deceit, breach of faith – than a man commits treason when he chooses to
leave a church, or any other voluntary association, with which he has
been connected.
|
| NT.1.4.15 |
This principle was a true one in 1776. It is a true one now. It is the
only one on which any rightful government can rest. It is the one on
which the Constitution itself professes to rest. If it does not really
rest on that basis, it has no right to exist; and it is the duty of
every man to raise his hand against it.
|
| NT.1.4.16 |
If the men of the Revolution designed to incorporate in the Constitution
the absurd ideas of allegiance and treason, which they had once
repudiated, against which they had fought, and by which the world had
been enslaved, they thereby established for themselves an indisputable
claim to the disgust and detestation of all mankind.
|
| NT.1.5 |
In subsequent numbers, the author hopes to show that, under the
principle of individual consent, the little government that mankind
need, is not only practicable, but natural and easy; and that the
Constitution of the United States authorizes no government, except one
depending wholly on voluntary support.
No. II.
The Constitution.
I.
|
| NT.2.1.1 |
The Constitution says:
“We, the people of the United States, in order to form a more perfect
union, establish justice, insure domestic tranquility, provide for the
common defence, 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.”
|
| NT.2.1.2 |
The meaning of this is simply We, the people of the United States, acting freely and voluntarily as individuals, consent and agree that we will cooperate with each other in sustaining such a government as is provided for in this Constitution.
|
| NT.2.1.3 |
The necessity for the consent of “the people” is implied in this declaration. The
whole authority of the Constitution rests upon it. If they did not
consent, it was of no validity. Of course it had no validity, except as
between those who actually consented. No one’s consent could be
presumed against him, without his actual consent being given, any more
than in the case of any other contract to pay money, or render service.
And to make it binding upon any one, his signature, or other positive
evidence of consent, was as necessary as in the case of any
other-contract. If the instrument meant to say that any of “the people
of the United States” would be bound by it, who did not consent, it was a
usurpation and a lie. The most that can be inferred from the form, “We, the people,” is, that the instrument offered membership to all “the people of the United States;” leaving it for them to accept or refuse it, at their pleasure.
|
| NT.2.1.4 |
The agreement is a simple one, like any other agreement. It is the same
as one that should say: We, the people of the town of A––––, agree to
sustain a church, a school, a hospital, or a theatre, for ourselves and
our children.
|
| NT.2.1.5 |
Such an agreement clearly could have no validity, except as between
those who actually consented to it. If a portion only of “the people of
the town of A––––,” should assent to this contract, and should then
proceed to compel contributions of money or service from those
who had not consented, they would be mere robbers; and would deserve to
be treated as such.
|
| NT.2.1.6 |
Neither the conduct nor the rights of these signers would be improved at
all by their saying to the dissenters: We offer you equal rights with
ourselves, in the benefits of the church, school, hospital, or theatre,
which we propose to establish, and equal voice in the control of it. It
would be a sufficient answer for the others to say: We want no share in
the benefits, and no voice in the control, of your institution; and will
do nothing to support it.
|
| NT.2.1.7 |
The number who actually consented to the Constitution of the United
States, at the first, was very small. Considered as the act of the whole
people, the adoption of the Constitution was the merest farce and
imposture, binding upon nobody.
|
| NT.2.1.8 |
The women, children, and blacks, of course, were not asked to give their
consent. In addition to this, there were, in nearly or quite all the
States, property qualifications that excluded probable one half, two
thirds, or perhaps even three fourths, of the white male adults from the
right of suffrage. And of those who were allowed that right, we know
not how many exercised it.
|
| NT.2.1.9 |
Furthermore, those who originally agreed to the Constitution, could
thereby bind nobody that should come after them. They could contract for
nobody but themselves. They had no more natural right or power to make
political contracts, binding upon succeeding generations, than they had
to make marriage or business contracts binding upon them.
|
| NT.2.1.10 |
Still further. Even those who actually voted for the adoption of the Constitution, did not pledge their faith for any specific time;
since no specific time was named, in the Constitution, during which the
association should continue. It was, therefore, merely an association
during pleasure; even as between the original parties to it. Still less,
if possible, has it been any thing more than a merely voluntary
association, during pleasure, between the succeeding generations, who
have never gone through, as their fathers did, with so much even as any
outward formality of adopting it, or of pledging their faith to support
it. Such portions of them as pleased, and as the States permitted to
vote, have only done enough, by voting and paying taxes, (and unlawfully
and tyrannically extorting taxes from others,) to keep the government
in operation for the time being. And this, in the view of the
Constitution, they have done voluntarily, and because it was for their
interest, or pleasure, and not because they were under any pledge or
obligation to do it. Any one man, or any number of men, have had a
perfect right, at any time, to refuse his or their further support; and
nobody could rightfully object to his or their withdrawal.
|
| NT.2.1.11 |
There is no escape from these conclusions, if we say that the adoption
of the Constitution was the act of the people, as individuals, and not
of the States, as States. On the other hand, if we say that the adoption
was the act of the States, as States, it necessarily follows that they
had the right to secede at pleasure, inasmuch as they engaged for no
specific time.
|
| NT.2.1.12 |
The consent, therefore, that has been given, whether by individuals, or
by the States, has been, at most, only a consent for the time being; not
an engagement for the future. 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 ever 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 practise 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,
be 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 attempts to take
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.
|
| NT.2.1.13 |
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 ameliorating 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
ever consented to.
|
| NT.2.1.14 |
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 injury or trespass from
others.
II.
|
| NT.2.2.1 |
The Constitution says:
“Treason against the United States shall consist only in levying war
against them, or in adhering to their enemies, giving them aid and
comfort.”
|
| NT.2.2.2 |
This is the only definition of treason given by the Constitution, and it
is to be interpreted, like all other criminal laws, in the sense most
favorable to liberty and justice. Consequently the treason here spoken
of, must be held to be treason in fact, and not merely something that may have been falsely called by that name.
|
| NT.2.2.3 |
To determine, then, what is treason in fact, we are not to look
to the codes of Kings, and Czars, and Kaisers, who maintain their power
by force and fraud; who contemptuously call mankind their “subjects;”
who claim to have a special license from heaven to rule on earth; who
teach that it is a religious duty of mankind to obey them; who bribe a
servile and corrupt priest-hood to impress these ideas upon the ignorant
and superstitious; who spurn the idea that their authority is derived
from, or dependent at all upon, the consent of their people; and who
attempt to defame, by the false epithet of traitors, all who assert
their own rights, and the rights of their fellow men, against such
usurpations.
|
| NT.2.2.4 |
Instead of regarding this false and calumnious meaning of the word
treason, we are to look at its true and legitimate meaning in our mother
tongue; at its use in common life; and at what would necessarily be its
true meaning in any other contracts, or articles of association, which
men might voluntarily enter into with each other.
|
| NT.2.2.5 |
The true and legitimate meaning of the word treason, then, necessarily
implies treachery, deceit, breach of faith. Without these, there can be
no treason. A traitor is a betrayer – one who practices injury, while professing friendship. Benedict Arnold was a traitor, solely because, while professing friendship for the American cause, he attempted to injure it. An open enemy, however criminal in other respects, is no traitor.
|
| NT.2.2.6 |
Neither does a man, who has once been my friend, become a traitor by
becoming an enemy, if before doing me an injury, he gives me fair
warning that he has become an enemy; and if he makes no unfair use of
any advantage which my confidence, in the time of our friendship, had
placed in his power.
|
| NT.2.2.7 |
For example, our fathers – even if we were to admit them to have been wrong in other respects – certainly were not traitors in fact, after
the fourth of July, 1776; since on that day they gave notice to the
King of Great Britain that they repudiated his authority, and should
wage war against him. And they made no unfair use of any advantages
which his confidence had previously placed in their power.
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| NT.2.2.8 |
It cannot be denied that, in the late war, the Southern people proved
themselves to be open and avowed enemies, and not treacherous friends.
It cannot be denied that they gave us fair warning that they would no
longer be our political associates, but would, if need were, fight for a
separation. It cannot be alleged that they made any unfair use of
advantages which our confidence, in the time of our friendship, had
placed in their power. Therefore they were not traitors in fact: and
consequently not traitors within the meaning of the Constitution.
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| NT.2.2.9 |
Furthermore, men are not traitors in fact, who take up arms against the government, without having disavowed allegiance to it, provided they do it, either to resist the usurpations of the government, or to resist what they sincerely believe to be such usurpations.
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| NT.2.2.10 |
It is a maxim of law that there can be no crime without a criminal
intent. And this maxim is as applicable to treason as to any other
crime. For example, our fathers were not traitors in fact, for resisting
the British Crown, before the fourth of July, 1776 – that is, before
they had thrown off allegiance to him – provided they honestly believed
that they were simply defending their rights against his usurpations.
Even if they were mistaken in their law, that mistake, if an innocent
one, could not make them traitors in fact.
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| NT.2.2.11 |
For the same reason, the Southern people, if they sincerely believed –
as it has been extensively, if not generally, conceded, at the North,
that they did – in the so-called constitutional theory of “State
Rights,” did not become traitors in fact, by acting upon it; and
consequently not traitors within the meaning of the Constitution.
III.
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| NT.2.3.1 |
The Constitution does not say who will become traitors, by “levying war
against the United States, or adhering to their enemies, giving them aid
and comfort.”
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| NT.2.3.2 |
It is, therefore, only by inference, or reasoning, that we can know who will become traitors by these acts.
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| NT.2.3.3 |
Certainly if Englishmen, Frenchmen, Austrians, or Italians, making no
professions of support or friendship to the United States, levy war
against them, or adhere to their enemies, giving them aid and comfort,
they do not thereby make themselves traitors, within the meaning of the
Constitution; and why? Solely because they would not be traitors in
fact. Making no professions of support or friendship, they would
practice no treachery, deceit, or breach of faith. But if they should
voluntarily enter either the civil or military service of the United
States, and pledge fidelity to them, (without being naturalized,)
and should then betray the trusts reposed in them, either by turning
their guns against the United States, or by giving aid and comfort to
their enemies, they would be traitors in fact; and therefore traitors within the meaning of the Constitution; and could be lawfully punished as such.
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| NT.2.3.4 |
There is not, in the Constitution, a syllable that implies that persons,
born within the territorial limits of the United States, have
allegiance imposed upon them on account of their birth in the country,
or that they will be judged by any different rule, on the subject of
treason, than persons of foreign birth. And there is no power, in
Congress, to add to, or alter, the language of the Constitution, on this
point, so as to make it more comprehensive than it now is. Therefore
treason in fact – that is, actual treachery, deceit, or breach of faith –
must be shown in the case of a native of the United States, equally as
in the case of a foreigner, before he can be said to be a traitor.
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| NT.2.3.5 |
Congress have seen that the language of the Constitution was insufficient, of itself
to make a man a traitor – on the ground of birth in this country – who
levies war against the United States, but practices no treachery,
deceit, or breach of faith. They have, therefore – although they had no
constitutional power to do so – apparently attempted to enlarge the
language of the Constitution on this point. And they have enacted:
“That if any person or persons, owing allegiance to the United States of America,
shall levy war against them, or shall adhere to their enemies, giving
them aid and comfort, * * * such person or persons shall be adjudged
guilty of treason against the United States, and shall suffer death.” – Statute, April 30, 1790, Section 1.
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| NT.2.3.6 |
It would be a sufficient answer to this enactment to say that it is
utterly unconstitutional, if its effect would be to make any man a
traitor, who would not have been one under the language of the
Constitution alone.
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| NT.2.3.7 |
The whole pith of the act lies in the words, “persons owing allegiance to the United States.” But this language really leaves the question where it was before, for it does not attempt to show or declare who does
“owe allegiance to the United States;” although those who passed the
act, no doubt thought, or wished others to think, that allegiance was to
be presumed (as is done under other governments) against all born in
this country, (unless possibly slaves).
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| NT.2.3.8 |
The Constitution itself, uses no such word as “allegiance,”
“sovereignty,” “loyalty,” “subject,” or any other term, such as is used
by other governments, to signify the services, fidelity, obedience, or
other duty, which the people are assumed to owe to their government,
regardless of their own will in the matter. As the Constitution
professes to rest wholly on consent, no one can owe allegiance, service,
obedience, or any other duty to it, or to the government created by it,
except with his own consent.
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| NT.2.3.9 |
The word allegiance comes from the Latin words ad and ligo, signifying to bind to. Thus a man under allegiance to a government, is a man bound to it; or bound to yield it support and fidelity. And governments, founded otherwise than on consent,
hold that all persons born under them, are under allegiance to them;
that is, are bound to render them support, fidelity, and obedience; and
are traitors if they resist them.
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| NT.2.3.10 |
But it is obvious that, in truth and in fact, no one but himself
can bind any one to support any government. And our Constitution admits
this fact when it concedes that it derives its authority wholly from the
consent of the people. And the word treason is to be understood in
accordance with that idea.
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| NT.2.3.11 |
It is conceded that a person of foreign birth comes under allegiance to
our government only by special voluntary contract. If a native has
allegiance imposed upon him, against his will, he is in a worse
condition than the foreigner; for the latter can do as he pleases about
assuming that obligation. The accepted interpretation of the
Constitution, therefore, makes the foreigner a free person, on this
point, while it makes the native a slave.
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| NT.2.3.12 |
The only difference – if there be any – between natives and foreigners, in respect of allegiance, is, that a native has a right
– offered to him by the Constitution – to come under allegiance to the
government, if be so please; and thus, entitle himself to membership in
the body politic. His allegiance cannot be refused. Whereas a
foreigner’s allegiance can be refused, if the government so please.
IV.
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| NT.2.4.1 |
The Constitution certainly supposes that the crime of treason can be
committed only by man, as an individual. It would be very curious to see
a man indicted, convicted, or hanged, otherwise than as an individual;
or accused of having committed his treason otherwise than as an
individual. And yet it is clearly impossible that any one can be
personally guilty of treason, can be a traitor in fact, unless
he, as an individual, has in some way voluntarily pledged his faith and
fidelity to the government. Certainly no man, or body of men, could
pledge it for him, without his consent; and no man, or body of men, have
any right to presume it against him, when he has not pledged it,
himself.
V.
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| NT.2.5.1 |
It is plain, therefore, that if, when the Constitution says treason, it
means treason – treason in fact, and nothing else – there is no ground
at all for pretending that the Southern people have committed that
crime. But if, on the other hand, when the Constitution says treason, it
means what the Czar and the Kaiser mean by treason, then our government
is, in principle, no better than theirs; and has no claim whatever to
be considered a free government.
VI.
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| NT.2.6.1 |
One essential of a free government is that it rest wholly on voluntary
support. And one certain proof that a government is not free, is that it
coerces more or less persons to support it, against their will. All
governments, the worst on earth, and the most tyrannical on earth, are
free governments to that portion of the people who voluntarily support
them. And all governments – though the best on earth in other respects –
are nevertheless tyrannies to that portion of the people – whether few
or many – who are compelled to support them against their will. A
government is like a church, or any other institution, in these
respects. There is no other criterion whatever, by which to determine
whether a government is a free one, or not, than the single one of its
depending, or not depending, solely on voluntary support.
VII.
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| NT.2.7.1 |
No middle ground is possible on this subject. Either “taxation without consent is robbery,” or it is not. If it is not,
then any number of men, who choose, may at any time associate; call
themselves a government; assume absolute authority over all weaker than
themselves; plunder them at will; and kill them if they resist. If, on
the other hand, taxation without consent is robbery, it necessarily
follows that every man who has not consented to be taxed, has the same
natural right to defend his property against a taxgatherer, that he has
to defend it against a highwayman.
VIII.
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| NT.2.8.1 |
It is perhaps unnecessary to say that the principles of this argument
are as applicable to the State governments, as to the national one.
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| NT.2.8.2 |
The opinions of the South, on the subjects of allegiance and treason,
have been equally erroneous with those of the North. The only difference
between them, has been, that the South has had that a man was
(primarily) under involuntary allegiance to the State government;
while the North held that he was (primarily) under a similar allegiance
to the United States government; whereas, in truth, he was under no
involuntary allegiance to either.
IX.
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| NT.2.9.1 |
Obviously there can be no law of treason more stringent than has now
been stated, consistently with political liberty. In the very nature of
things there can never be any liberty for the weaker party, on any other
principle; and political liberty always means liberty for the weaker
party. It is only the weaker party that is ever oppressed. The strong
are always free by virtue of their superior strength. So long as
government is a mere contest as to which of two parties shall rule the
other, the weaker must always succumb. And whether the contest be
carried on with ballots or bullets, the principle is the same; for under
the theory of government now prevailing, the ballot either signifies a
bullet, or it signifies nothing. And no one can consistently use a
ballot, unless he intends to use a bullet, if the latter should be
needed to insure submission to the former.
X.
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| NT.2.10.1 |
The practical difficulty with our government has been, that most of
those who have administered it, have taken it for granted that the
Constitution, as it is written, was a thing of no importance; that it
neither said what it meant, nor meant what it said; that it was gotten
up by swindlers, (as many of its authors doubtless were,) who said a
great many good things, which they did not mean, and meant a great many
bad things, which they dared not say; that these men, under the false
pretence of a government resting on the consent of the whole people,
designed to entrap them into a government of a part; who should be
powerful and fraudulent enough to cheat the weaker portion out of all
the good things that were said, but not meant, and subject them to all
the bad things that were meant, but not said. And most of those who have
administered the government, have assumed that all these swindling
intentions were to be carried into effect, in the place of the written
Constitution. Of all these swindles, the treason swindle is the most
flagitious. It is the most flagitious, because it is equally flagitious,
in principle, with any; and it includes all the others. It is the
instrumentality by which all the others are mode effective. A government
that can at pleasure accuse, shoot, and hang men, as traitors, for the
one general offence of refusing to surrender themselves and their
property unreservedly to its arbitrary will, can practice any and all
special and particular oppressions it pleases.
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| NT.2.10.2 |
The result – and a natural one – has been that we have had governments,
State and national, devoted to nearly every grade and species of crime
that governments have ever practised upon their victims; and these
crimes have culminated in a war that has cost a million of lives; a war
carried on, upon one side, for chattel slavery, and on the other for
political slavery; upon neither for liberty, justice, or truth. And
these crimes have been committed, and this war waged, by men, and the
descendants of men, who, less than a hundred years ago, said that all
men were equal, and could owe neither service to individuals, nor
allegiance to governments, except with their own consent.
XI.
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| NT.2.11.1 |
No attempt or pretence, that was ever carried into practical operation
amongst civilized men – unless possibly the pretence of a “Divine
Right,” on the part of some, to govern and enslave others embodied so
much of shameless absurdity, falsehood, impudence, robbery, usurpation,
tyranny, and villainy of every kind, as the attempt or pretence of
establishing a government by consent, and getting the actual
consent of only so many as may be necessary to keep the rest in
subjection by force. Such a government is a mere conspiracy of the
strong against the weak. It no more rests on consent than does the worst
government on earth.
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| NT.2.11.2 |
What substitute for their consent is offered to the weaker party, whose
rights are thus annihilated, struck out of existence, by the stronger?
Only this: Their consent is presumed! That is, these usurpers condescendingly and graciously presume that those whom they enslave, consent
to surrender their all of life, liberty, and property into the hands of
those who thus usurp dominion over them! And it is pretended that this
presumption of their consent – when no actual consent has been given –
is sufficient to save the rights of the victims, and to justify the
usurpers! As well might the highwayman pretend to justify himself by
presuming that the traveller consents to part with his money. As well might the assassin justify himself by simply presuming
that his victim consents to part with his life. As well the holder of
chattel slaves attempt to justify himself by presuming that they consent
to his authority, and to the whips and the robbery which he practises
upon them. The presumption is simply a presumption that the weaker party
consent to be slaves.
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| NT.2.11.3 |
Such is the presumption on which alone our government relies to justify
the power it maintains over its unwilling subjects. And it was to
establish that presumption as the inexorable and perpetual law of this
country, that so much money and blood have been expended.
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