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Payler Lewió.


The framers of our National Constitu- dual soul is to the body. It should be that tion, and the people who adopted it, un through which the nation thinks and wills, doubtedly felt that the unavoidable im- whilst no other public sentiment or pubperfections of language might give rise lic will is to be regarded as of any validito doubts respecting the true meaning of ty or entitled to any respect. Its justice, certain portions, and they therefore esta- at least so far as interpretation is conblished, as part of the Constitution itself, cerned, should be the national justice—its an appropriate tribunal for its interpreta- principles the national conscience. But tion. This tribunal was designed as the paper and parchment never can effect this. national representative, as much so as the Time alone is the great agent in the aclegislature or the executive; so that ac- complishment of such a result. With cording to the true theory of our govern- us, however, the difficulty is, that this ment, its decisions once made are ipso time cannot be allowed. Every man's facto the decisions of the nation, pro- private judgment, not only of what the 'nounced in the only legal and constitu- Constitution actuallydoes mean, but also tional way. They are to be regarded as of what it ought to be, is to be set off the supreme law, until, if found inconve- against the voice of the whole nation as nient, they shall be remedied in the only expressed through its judiciary. In Engmethod pointed out in the constitution for land, the fundamental law arose out of its own amendment. This tribunal, it is chaos, and in the course of centuries has true might err—for it was a human in- grown to something like regular form and stitution-but in such a case, the nation, consistency. Our's, on the other hand, whose agent it is for this specific pur- commenced in what we boasted of as cerpose, is supposed, by the fundamental tainty, and yet has every year been driftcompact, to which all in theory assent, to ing farther and farther away into the tohu endorse its errors, and to make them part and bohu of unsettled interpretation, of of the supreme law, until remedied in the private judgment, and individual responmethod to which allusion has been made. sibility. We will not give it time to

Such was the original scheme of our strike its roots into the earth. We have constitution, and such the plan designed acted like the foolish child in the fable, for its successful action. It was a scheme who pulled up his bean plant every mornfounded not only upon the soundest prin- , ing, to see whether it had grown any duciples of political science, but also upon ring the night, until he finally so far dea healthy and unsophisticated common stroyed all vitality as to prevent its ever sense. It was the only possible resource becoming fixed in the soil. against continual anarchy and revolution. The first serious injury inflicted upon When viewed in this light, we had some the growth and expansion of this tenreason to boast of having a written frame der plant, consisted in departing from of government, and to regard ourselves as the only true mode of interpretation, superior, in this respect, to those compar- namely, the plain grammatical meaning of atively free States whose constitutions language, and substituting certain arbi. were founded upon a long series of un- trary rules in its stead. Hence the docwritten precedents and decisions. We trine of strict construction in reference to would ask, however, whether experience those objects to which the makers of this has not shown that we have not such rule see fit to apply it, and of liberal grounds for triumph in this respect as we construction in regard to others. The fondly imagined ? Has it not proved that next blow was the encouraging, on the the written, not through any intrinsic ob- part of some of our highest functionaries, scurity, but by the depravity and blind- of a mean, malignant, and demagogue ness of those upon whom it is to operate, spirit towards the tribunal which the Con. may possess as much uncertainty and in- stitution had intrusted with its own interstability as the unwritten?

pretation. As a natural consequence, this The constitution and laws made in pur- was followed by the extravagant claim suance thereof, should, according to a which was carried to its height during the sound theory, become the national mind disastrous administration of Andrew Jack--the same to the State that the indivi- son,-namely, that the chief executive,

and by parity of seasoning, every subor- stih@ven in the most frightful picture of dinate executive and legislative fficer''the most exaggerating abolitionist, it is (for they too had consciences and had ta- not to be placed in the scale with the deken oaths) must support the constitution, moralizing effects of such a sentiment as as he in his individual wisdom might un this. Cruelty and oppression carry with derstand it. All this, we say, was for them their own moral antidotes, but who conscience sake. These most conscien ever assails or trifles with the sanctions tious souls might, forsooth, be led into er- . of the oath, attacks the foundations of all ror by following the opinions of such men truth and all morality. The soundest as Marshall and others, whose lives had political writers and historians, whether been devoted to the study of constitution of ancient or modern times, have eve al law, and who were as far as possible regarded a low estimate of the solemnr removed from the heat of party strife. It obligations of the oath as one of the surest was far better, they thought, to trust the signs of a corrupt and degenerate age. cool and unbiassed judgment of a presi. The stern historian Livy most strikingly dent or a secretary, daily engaged in the presents it as the great contrasting dishottest and most unhallowed contentions tinction between the religious integrity of of political warfare.

the ancient and the atheistic licentiousness It has, however, been reserved for abo- of the later Rome. There had not yet come, litionists, and especially their chief, James (he says,) that negligence of religious obliG. Birney, to discover and act upon a gation, nor did each individual man, by inmethod of interpretation which throws terpreting oaths and laws according to his this doctrine of General Jackson utterly own wishes, force them into an accommodainto the shade. It opens an entirely new tion with himself, but rather accommodated chapter in political and moral philosophy. his own manners and habits to the law and

General Jackson was willing to exe the oath. Nec interpretando sibi quisque cute the Constitution as he understood it; jusjurandum et leges aptas faciebat, sed yet still it was the Constitution, whole suos potius mores ad leges et jusjurandum and entire, according to such understand accommodabat.* ing. James Birney also is willing to For the better understanding of some assume this solemn obligation. He is of the points connected with this serious ready to take the oath without reserve or charge against Mr. Birney and his conqualification, and yet assures us, in his scientious followers, it should be borne letter to Mr. Shapter, that he should not in mind, that there are in this country two execute certain parts of the Constitution, distinct kinds of abolitionists. The one because he deems them repugnant to na- class may be styled, for distinction's sake, tional justice. He does not mean to main- the Garrison, or Boston abolitionists, the tain that instrument, and laws made in other the followers of Birney, Smith, and pursuance thereof, as it really is, or as it Stewart, or as they style themselves, may be interpreted by the national judi- the Liberty Party. Without dwelling upon ciary, or even as he himself may under- the trifling causes which produced the stand its provisions as now existing separation, it may be said that the Garri. What then does he intend to do? He son portion at that time was generally reswears to support the Constitution as it is, garded as the most fanatical, and the most and yet means to execute it, not as it is, dangerous. We believe, however, that but as he thinks it ought to be.

the opposite of this is the truth. From Truly this may be called by way of a careful study of both societies and all distinction the conscientious age. Here is their extravagances, we are satisfied that a deadly blow at the very roots of all there is far more of moral principle in the moral obligation, an utter contempt of eastern than in the western branch of these all the sanctions of an oath, and yet this misguided fanatics. Setting out from those is all on the score of conscience. There premises which they both hold in comwas nothing so unblushing in any of the mon, the former, with a rigid consistency, iniquities of that abominable school which, in itself, and aside from all other whose enormities were exposed by Pas- considerations is entitled to our admiracal. They vehemently denied the impu- tion, have gone on, step by step, without tation in which Mr. Birney so openly flinching at the conclusions to which they glories. We may regard slavery to be saw themselves inevitably advancing, unas great an evil as we can well imagine, til they have finally arrived at theories

* Livy, Hist. III. 20.

utterly subversive of all civil government. the legal and illegal, of the right and the Whatever may be their faults, they have wrong, of the true and the false. Incertainly shown themselves most acute terpretations are forced upon other parts, logicians. There is some moral merit in such as never entered into the concepconsistency of reasoning, and the men tions of any brain before they were who are jealous of such consistency, are broached by Alvan Stewart. Yet still, not utterly and irremediably depraved with all their efforts, some clauses remain Their great cry is moral power, and they too stubborn to yield to any strain of their therefore most consistently eschew all sophistical machinery. In spite of every political action. The others, too, are of torturing effort, the Constitution is conten inclined to mount this old hobby, yet fessed, even by them, to contain a provision as though struck with the horrid repug. for the arrest and return of fugitive slaves. nance between any true ideas of moral Now, these men of conscience have formpower and some of the abominable prin- ed associations for doing acts in direct ciples which they openly profess, they violation of this provision. Their eastern have of late years been more especially brethren released by their political posiknown as the advocates of political ac tion of alienation from the union, can tion. Occasionally they would exhibit pursue in comparative freedom those their moral power in assailling such men annual logomachies with which at each as Mr. Frelinghuysen, as in that canting returning anniversary they amuse the letter of Jay just before the last election; public. They can evaporate their moral but the thought of Sabbaths prostituted to power, and let off their moral steam, in the lowest political purposes, their inces- railing at the Clergy, the Church, and the sant abuse of some of the purest men in State. The other section have more seri. our land, and their strange doctrine re- ous work to perform. They are to conspecting an appeal to Heaven, closes their trive ways and means to reconcile intendmouths and prevents their saying much ed perjury to their most squeamish and on this once trite and favorite topic. delicate consciences. As private indiviThe Boston section have several times duals they might get along with a toleragone through the ridiculous farce of dis- ble degree of consistency, yielding support solving the Union by resolution. The to the laws when deemed right, and others profess to adhere to the Constitu- quietly keeping aloof, or interposing only tion, and claim, in this respect a superiori- a negative resistance, when they seemed ty to their more fanatical brethren on the to demand a violation of conscience. They score of attachment to law and order and may abstain from holding office. But existing institutions. No pretence, how- others of them have more ambition. Their ever, could be more unfounded. They main object being to thwart that one of have been stigmatized by the Garrison the two great political parties which is abolitionists as the most unprincipled and the most nothérn in its influence and its dangerous party in the country; and a measures, they too must set a-going a careful examination of their proceedings political organization. Hence they must for the last few years must produce a

have candidates; and hence too the very conviction that these witnesses from their serious question must arise, how these own ranks, are true. The followers of candidates can conscientiously swear to Garrison and Abby Kelly disclaim all re maintain and execute the laws and congard for the union, and by so doing have stitution of the United States when they rendered themselves harmless. They de- are not only warmly opposed to some of clare that the house is infected, and there. its provisions as morally wrong, but have fore, like consistent lunatics, profess to actually been engaged, and intend for the have left the premises. The adherents of future to be engaged, in efforts for their Birney, Smith, and Stewart remain in the direct violation. building, but only for the purpose of set The Garrison section, whose advance ting it on fire.

position enables them to see clearly the To drop the figure, the latter are un whole ground, charge them with incon. ceasing in their attacks upon certain sistency. To every unsophisticated conprovisions, which every man, who prizes science it presents all the features of inin the least a reputation for candor, must tended perjury. They themselves feel admit to be prominent parts of our national the pressure-Conscience though blinded Constitution. Some of these they endea- by sophistry is not utterly palsied, and vor to explain away by a sophistry hence the late effort of James G. Birney, which would annihilate all distinction of the individual most deeply involved in

this difficulty, to wipe out the stain which acts, some of which he feels at the time must inevitably sully whatever reputation to be morally wrong, and this on the he may yet possess as a citizen, a Chris- ground, that when he takes the oath, he tian, and, above all, as a moralist of that has no intention to perform the parts rehigh order which he assumes in his bitter ferred to, although noqualification or open denunciations of all who hesitate in reservation was annexed. Let him say adopting, to the full extent, all his most what he will, it is a principle which the ultra opinions.

worst of men would repudiate, and have To show that we do no injustice to repudiated. It is nothing else, than the Mr. Birney, we present in a note, an ex old, stale, universally abhorred, and abomtract from his letter to Mr. Shapter. * inable doctrine of mental reservation.

In respect to the argument which he He does not mean, forsooth, to do any attempts to found upon the practice of acts which are immoral and unjust! why courts, in declaring laws unconstitutional, then does he swear to do them? Does we make no comment. Every reader, of he intend to except them from being inordinary common sense, may see its utter cluded in the declaration ! Why then inapplicability. No court that we ever does he not make a qualification, or reheard of, has ever yet assumed to declare serve accordingly? any part of the Constitution itself, under To set this matter in a clear light, we which its own powers were establis will present the different aspects under unconstitutional. When they make such which the obligations of a prommisory a decision in respect to a law, they are oath may be viewed. Ethical authori. discharging under oath their appointed ties have generally concurred, with great duty. They are sworn, truly to interpret uniformity, in this matter, because they the laws. Mr. Birney, if he ever be- have only presented the unavoidable concomes President, must take an oath faith- clusions of the common sense, or rather fully to maintain and execute them. All conscience of mankind. The cases arethat need be said on this point is, that if 1st. When a man takes an oath to do he undertake to discharge the functions of certain acts, all or some of which, bethe judiciary, he violates his oath, and come impossible, or are subsequently discommits perjury. The ground then as covered to have been impossible, at the sumed by him, is not one of interpreta- time. tion. It is admitted that there are cer 2d. When the one who takes the oath, tain things in the Constitution, and more finds that he was honestly mistaken as in laws based upon the Constitution, to the facts, and that therefore, under a which he would not only refuse to exe- misapprehension, he has, in the letter, cute, but would directly violate. In other sworn to do what was, at the time, utwords, he most expressly maintains, that terly absent from his thoughts. a man may rightfully swear to do certain 3d. When it is subsequently discover

*“Such parts of the Constitution as are opposed to the law of God, to common justice, to humanity, to good morals, I reject as no part of that instrument. I should have no hesitation in " affirming” to support the constitution of government, while I should be prepared, indeed consider myself bound, to disregard any immoral provisions that might be found in it. A law is passed by the Legislature of New York, chartering the Tradesman's Bank. It contains, it may be, some fifty sections. One or more of them, in some litigated question, is discovered by the tribunal, before whom it is brought, for adjudication, to be opposed to the Constitution of the state. The court does not hesitate to pronounce such sections void, while it maintains the validity of the others.

« The Constitution of the United States is a Constitution of Government. Governments have no right to ordain what is immoral or unjust: Morals and Justice, make the only allowable basis of government. There is no other basis. Government is intended to secure natural rights—to enable those who are subject to it, to perfect their happiness, and make themselves, in all good and proper things, what they are capable of being made. Injustice is opposed to the object of all rightsul government, and can never constitnte one of its elements.

“ I cannot but think, that on further examination of this subject, you will accord with me. I should be gratified, if it should turn out so, for I remember your person, the estimation in which you were held, and the very able articles to which you have referred me. With much respect,

Very truly, your ob'dt. serv't., JAMES G. BIRNEY."

ed that the doing of the act, although in- litical ethics has indeed, presented some cluded in the original intention, will in- most strange and almost inexplicable volve a violation of previous or higher phenomena. There have been those rimoral obligation-such view, through gid constructionists, who have strained negligence or ignorance, not having pre- most piteously at the smallest harbor. sented itself to the mind, when the oath bill for the improvement of navigation was taken.

between the States, and yet have proNow, in all these cases, most ethical fessed themselves able and willing to writers regard a man as absolved from his swallow all Mexico. There have been oath. There may be some doubt, in re- inexplicable State Rights men, who know gard to the second, where there is suppo- of no power in the Constitution, to resed to be only a mistake of facts, the quire an election of Members of Conknowledge of which might have pre- gress by districts, and yet find ample auvented the original taking, but which thority to vary the very foundations of would require no breach of moral obli- the original Federal Compact-and, by gation in the performance. A true and the summary process of joint resolution, rigid morality would seem to require it, to receive a foreign people, to join here. as the safe rule, that, in such case, per- after in the same stale cry of strict formance should not be excused, on the construction, whenever such a course plea of ignorance, even although such shall tend to throw farther restricignorance arose from the designed mis- tions upon the prosperity of the earlier representation of the imposer. The prin- members of the confederacy. There have ciple might be different in regard to con- been other still more unaccountable extracts unsworn; but the solemnity of the hibitions of the human intellect and the oath, by which the Deity is made a party, human conscience, in men who regard would seem to give rise to a higher view the distribution of the annual proceeds of of its binding power.

It is on this the public lands among our own impovground, that the Scriptures commend the erished states, as one of the most glaring man, who “ sweareth to his own hurt, and and dangerous breaches of the Constituchangeth not.” In all such cases, too, tion, whilst at the same time they find in which the party would be regarded as the most undoubted power to pay the unabsolved, the guilt, if any, would be known millions of the debt of Texas. viewed as attaching to the taking of the These cases we say are inexplicable, or oath, and not to its non-performance. only to be resolved on the ground of some

Varying somewhat, from any of the strange obliquity which party madness above, but running parallel to them all, generates in the human conscience, yet may be supposed to be the case of inter- still even the men who act in this unacpretation in which the taker differs from countable manner, do, in profession at the imposer, or from the opinions of least, declare their adherence to the whole others interested in the performance, and Constitution, and its provisions as they there is no common arbiter, submission to understand them. wbose decree, (as is the fact, in regard to Mr. Birney takes shelter under no such our Constitution,) enters into the implied plea of honest difference of interpretation. substance of the oath itself.

He boldly avows his willingness to take The case of Mr. Birney and his fol an unqualified oath to support and exelowers, however, presents features wide- cute a Constitution and laws containing ly diverse from every one of these. provisions which he does not intend to exThere is no plea of impossibility of per- ecute. Such provision being, at the time, formance. There can be no allegation of well known to him, their true meaning any mistake, as to facts subsequently dis- undisputed by him, and the guilt which covered. It is not the condition of a man, they involve (if there be any such guilt,) who, in a state of ignorance or stupidity, as clearly presented to his conscience swears to do what he afterwards discov- when he positively swears to their obers to be wrong. Mr. Birney prides him- servance, as it can be at any subsequent sclf in has ng a conscience always wide period. No reservation being made, or awake. It is not a question of interpre- allowed, it is the same as though he should tation, when one professes, at least, to be promise to perform each act separately willing to observe the whole instrument, and specifically-or as though it were although party madness, or other causes, thus administered : may have strongly_biassed him to “ 1, James Birney do solemnly swear a false cnstruction. This chapter of po- in the presence of Almighty God, that as

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