Lysander Spooner and Other Antebellum Radicalism

0:00What I think I'd like to do for my portion of this today is to focus on a few areas and focus on them in some detail, instead of trying to cover absolutely everything. I mean, the chapter five has a lot of detail in it about a lot of different things, and I'd like to elaborate on some of that, and I'd also like to include some material that's not contained in the chapter. And we'll see how far we get with this. I'd like to cover three things, and we might do only two and then just have the discussion. So I'm going to start with the two that you will find the least about in the text, so that if we had to miss one, it would be one that's already in the text. So here we are talking about the antebellum period, the several decades leading up to the war, and what I've chosen to start with is a man named Lysander Spooner, Lysander Spooner

1:24So what I did was I tried to organize a way of looking at Lysander Spooner and why he's significant or at least interesting. There really is nobody quite like this man. And then I want to explain to you why he's relevant. Spooner was born in Massachusetts in 1808, dies in 1887. He's a radical abolitionist lawyer who's involved in a number of radical causes over the course of his career. in the 1840s, he runs into some legal problems with the U.S. government because he tries running his own postal service. He thinks the post office in his day is slow and inefficient, so he's going to run his own. He doesn't see there's any law against that. Right. The Constitution does say the U.S. government can establish post offices, but it doesn't say nobody else can.

2:11So he started his own American letter mail company. So, he started his own American Letter Mail Company and the U.S. government protested this vigorously and in fact, basically litigated him into bankruptcy. So, he had to give up. So, he tried. So, if anybody, sometimes I get people saying, you know, I'm going to start my own and I just remind them, look, Lysander Spooner tried that, they're just not going to let you get away with it. So, that was the sort of thing he did. In fact, he wrote a whole essay about the unconstitutionality of Prohibiting Him from Delivering Mail if He Wanted to. Well, what I'm focusing on here is a lengthy work, 300 pages at least, that he wrote that came out in the mid to late 1840s, because he added to it.

2:58He had a part one, then later in the 1840s a part two, called The Unconstitutionality of Slavery. Now, he chooses this title deliberately. It's quite provocative. He's claiming that the Constitution not only does not sanction slavery, but is in fact an and an anti-slavery document, and at first glance that just seems absurd, even ridiculous. Surely there are clauses in the Constitution that sanction or at least refer to slavery. So what exactly can Spooner mean here? Well let's first note the context of the unconstitutionality of slavery. Spooner is breaking here with more mainstream, you might say, abolitionists like William Lloyd Garrison, and a fellow, I guess, Massachusettsian. Garrison was probably the best known abolitionist in the United States.

3:47He was the editor of a paper called The Liberator that was published since 1831. And he also was involved in regional and national anti-slavery organizations. And Garrison took the view that the Constitution was a pro-slavery document and therefore needed to be repudiated by abolitionists. So Garrison took the view that the Constitution was a covenant with hell, basically. It was a covenant with death, that it had blood on its hands, that no abolitionist could be loyal to it or even could vote under the auspices of the Constitution because it's so tied northerners to the slave system. So Garrison took this view and publicly denounced the Constitution. In the 1840s he even burned a copy of the Constitution publicly, and in fact here I had just a short excerpt from an article that Garrison wrote in his newspaper, The Liberator, at the end of 1832.

4:42Here's how Garrison felt about the Constitution. He said, There is much declamation about the sacredness of the compact which was formed between the free and slave states on the adoption of the Constitution. A sacred compact, forsooth, we, meaning we abolitionists, pronounce it the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villainy ever exhibited on earth. Yes, we recognize the compact, but with feelings of shame and indignation, and it will be held in everlasting infamy by the friends of justice and humanity throughout the world. It was a compact formed at the sacrifice of the bodies and souls of millions of our race for the sake of achieving a political object, an unblushing and monstrous coalition to do evil that good might come.

5:34Such a compact was in the nature of things and according to the law of God, null and void from the beginning. No body of men ever had the right to guarantee the holding of human beings in bondage. Who or what were the framers of our government that they should dare confirm and authorize such high-handed villainy, such flagrant robbery of the inalienable rights of man, such a glaring violation of all the precepts and injunctions of the Gospel, such a savage war upon a sixth part of our whole population? And then he goes on and gets really serious after that. So that's some indication of the style of rhetoric you might encounter in reading Garrison and his followers. So when Spooner comes along and in fact acquits the constitution of any association with slavery, this is something quite daring and original.

6:24Well how is Spooner going to make this argument? Well let's first recognize that later in his career when the Civil War came or war between When that war came, Spooner, although an abolitionist, was dead set against the war, was totally anti-Lincoln, thought the war was an obvious sham, that it had nothing to do with slavery. It was simply fought to coerce the southern states to stay in the Union. And Spooner believed that the southern states had as much right to leave the Union as a slave did to run away from his master. So, he both believed in radical antislavery and he also believed in radical secessions. And in fact, he wrote a lengthy book or a study called No Treason, the Constitution of No Authority following the war.

7:14And he uses the words no treason as if to indicate that the southern states committed no treason when they seceded. And Spooner went to the radical conclusion, after the war, two or three decades after he'd written the Unconstitutionality of Slavery, he drew the conclusion that really no constitution can ever be legally binding on anyone who did not himself actually, officially and explicitly agree to it and sign it. And Spooner said, you know, whatever document this is, the Constitution, the fact is I didn't sign it, nobody living today signed it, So how can it possibly bind me? There's no other aspect of life in which I'm just simply assumed to have agreed to something that I never agreed to. And so what Spooner concluded was that since there was no universal consent to the Constitution, and even if there had been, all those people who consented to it are now dead.

8:09None of us have consented to it. It has no authority over any of us, strictly speaking. That's a very radical position and he's not necessarily taking that position in the unconstitutionality of slavery, but that was the argument that he later made. That's a big problem in political philosophy is trying to reconcile freedom and authority. John Locke in the late 17th century had argued that people sort of implicitly consent to the government over them and any constitution that backs it. They imply that they consent to it by the fact that they continue to live under that government. But for Spooner, that's not enough. If I haven't given my act of consent, then it cannot be considered binding. So he ultimately takes this very radical position. What he says in the Unconstitutionality of Slavery is simply this, that if the meaning of consent is going to be coherent, if we're going to understand consent as a meaningful idea, then although it's true that the U.S. Constitution has not been consented to by every single person,

9:10He says that, if it's going to be legitimate at all, what we have to understand is that if we're going to take for granted that the U.S. Constitution has the consent of the people and is the product of the people, then we cannot assume that this Constitution takes away people's rights because people cannot be assumed to have consented to something that would do that. So we can only assume that people would consent to a document that promotes justice. So we must always, in our interpretation of the Constitution, incline in the direction of the most just interpretation of its clauses. Because universal consent can never be, and because we have to, in effect, rely on implied consent, well, we can only assume that people would consent, in effect, to be governed according to justice.

10:00Now, we'll put that on the back burner for a moment and consider this principle. What I have up here is original meaning versus original intent. Every time to this day that a potential Supreme Court justice is being confirmed by the Senate, always there's some discussion of what does this person believe about original intent. Original intent simply is a sort of school of jurisprudence that seeks to interpret the Constitution by trying to figure out or, more precisely, what the people who ratified the Constitution in each state believed that it meant. And the idea of original intent, therefore, is that today the Constitution is still the same document and we should interpret it in light of what its drafters and its ratifiers meant by it.

10:51Spooner takes a somewhat different spin on this. Spooner says that what's more important is the original meaning of the document. And he says that's not the same thing as original intent. That you may have intended something in the Constitution, but the only thing that could remotely bind us would be the Constitution itself, would be the document itself. Not secret conversations behind closed doors, or not something that may be in the back of your mind, you sort of, in a fog, sort of intended to do. But what did you actually write down? Maybe you intended, for example, to sanction slavery. But if I don't see slavery in there, then we're not going to assume it exists. So he is focusing not so much on what the intention behind a constitutional clause was, but rather what is the meaning of the words in that clause.

11:40I don't care what James Madison thought in 1787 or what so-and-so thought at the ratifying convention somewhere. What do the words mean? What did they mean then? What do these words themselves actually mean? So that's what he means by original meaning. We're going to look to the text of the document alone and not to any mediating sources like constitutional convention or ratifying conventions. Now, what Spooner immediately notices is that a lot of words have many meanings. In fact, he says the word free or freedom has dozens of potential meanings. So, original meaning does not necessarily solve the question of how to interpret the Constitution because words have multiple meanings. How do we decide between all the multiple meanings that attach to the various words we find in the Constitution?

12:29And he says we need to have some way to arbitrate between potentially divergent meanings of these words. And he says our great arbiter in deciding which meaning of these words we should use is natural law. Now that's a concept that today, although it's having a little bit of a revival right now, Today would be considered sort of old-fashioned and archaic and law professors would sort of grin and giggle at it. But let's see what exactly Spooner means by natural law. By natural law, Spooner simply means in effect the rules of living that we sort of spontaneously recognize as being just. Rules that govern the interaction of human beings.

13:14Spooner says that natural law is something that, in many ways, you have already learned by the time you're, let's say, an advanced toddler. You've already learned the key precepts of natural law. Let me cite Spooner here. Spooner says, Children learn many principles of natural law at a very early age. For example, they learn that when one child is born, he or she will have a child. These are fundamental principles of natural law at a very early age. For example, they learn that when one child has picked up an apple or a flower it is his, and that his associates may not take it from him against his will. They also learn that if he voluntarily exchange his apple or flower with a playmate for some other article of desire, he has thereby surrendered his right to it and must not reclaim it.

14:02These are fundamental principles of natural law which govern most of the greatest interests of Individuals and Society, yet children learn them earlier than they learn that three and three are six or five and five ten. Well, in effect, these are the foundational principles of natural law, that in effect that you have a certain liberty when it comes to the use of your own faculties, that you have the right to acquire property and to exchange that property or to sell it. These are basic principles that everyone recognizes at an early age is what Spooner is suggesting. This, in effect, in a nutshell, is what the natural law is. Now, if I may just, because I love this quotation, if I may be excused, a brief digression. A lot of times people will say that, well, you can't really know what natural law is.

14:50It's kind of arbitrary. Your natural law may be different from mine, and nobody really knows what it is. It's very confusing. It's not very useful. And Spooner tried to explain why it is that people would think that natural law was confusing or not knowable. and what he suggested is that government has kind of screwed up our understanding of natural law because it violates natural law consistently. We understand naturally when we're children that I shouldn't yank that toy away from that other child or at least I learn it when my parents tell me I shouldn't. But ultimately we know if somebody takes something from us, we know we've been treated unjustly. We know we've been unjustly expropriated. Why is it that this is said to be so unclear? He says that since government is always stealing from you, but they call it taxation, or government is always kidnapping people, but they'll call it conscription or they'll give it some word, well, therefore, governments are constantly inverting or, in effect, misleading our understanding of natural law.

15:51And that's why it has become confusing, because on the one hand we say there's no stealing, but on the other hand we say, but those guys can steal. There's no kidnapping, but those guys can kidnap. So Spooner says,

16:31is a matter of very similar difficulty to what it would take to learn a system of mathematics which should consist of the mathematics of nature interspersed with such other mathematics as might be created by legislation in violation of all the natural principles of numbers and quantities. Well, he's going to use natural law as the arbiter between different meanings of words. And so that is to say, if there is a word that can be taken in more than one meaning, The law is going to take it in the meaning that in effect has it most consistent with the demands of natural law. That if there's a meaning of that word that might be inconsistent with the demands of natural law, that meaning will not be entertained by the law. So natural law in effect helps us to arbitrate between different meanings attached to words that are embedded within human laws.

17:24So, this is the central principle of Spooner's thinking. Law never gives the benefit of the doubt to violations of natural law. The law always gives the benefit of the doubt to freedom and to adherence to natural law. So, Spooner says this, Where words are susceptible of two meanings, one consistent and the other inconsistent, with justice and natural right, that meaning and only that meaning, No language except that which is peremptory and no implication except one that is inevitable shall be held to authorize or sanction anything contrary to natural right. No extraneous or historical evidence shall be admitted to fix upon a statute an unjust or immoral meaning when the words themselves of the act are susceptible of an innocent one.

18:14Spooner cites some legal cases that seem to support this manner of interpretation, he cites United States v. Fisher as reading,

18:44and use a court of justice to suppose a design to effect such objects. So that is to say, if you have a statute that violates natural law, that statute must be worded in such a way that it is absolutely clear that the legislator intended that. If there is even the slightest room for doubt that that is the meaning of the statute, then the more innocent meaning shall be assigned to it. Now, Spooner says this is not perfect, but this is at least what he says a scaffolding from which to erect that higher standard of law to wit that no language or authority whatever can legalize anything inconsistent with natural justice. He likewise quotes Jacob's Law Dictionary and says no law will make a construction to do wrong and there are some things which the law favors and some it dislikes.

19:37It favoreth those things that come from the order of nature. Again, that is the Spoonerite principle of interpretation. And in fact, there's a prominent case that I referred to in Chapter 5 from the 18th century in Britain called Somerset's case that also shows that in a case where the exact statute is unclear, the law always sides with natural law as opposed to siding with violations of natural law. If you noted in there, Somerset's case, which I mentioned in the discussion a couple of weeks ago, involved a slave from Jamaica, who had been brought to England by his master, and then the master tried to remove him from England once again. But some anti-slavery advocates argued that removing him from England was tantamount to kidnapping, because the slave did not wish to leave, and because nowhere in England was the institution of slavery statutorily established.

20:34And the law in effect decided that in the absence of any positive statute establishing slavery, we assume slavery not to exist. We always, when there's a case and we don't quite know what the answer is, we always side with natural law rather than violations of natural law, and it was assumed that slavery is a terrible violation of natural law. So the law never gives it the benefit of the doubt. It always gives freedom the benefit of the doubt, and so Somerset was freed on those grounds, and I argued that that line of jurisprudence was then brought across the Atlantic and formed a number of important cases in American history involving slaves who had been removed to other places and then sued for their freedom while they were legitimately granted it on the same grounds as in Somerset's case.

21:22Okay, good. Now if I may share with you a passage from Spooner. This is from his Unconstitutionality of Slavery, and he says this, To assert that the Constitution intended to sanction slavery is in reality equivalent to asserting that the necessary meaning, the unavoidable import of the words alone of the Constitution, come fully up to the point of a clear, definite, distinct, express, explicit, unequivocal, necessary and peremptory sanction of the specific thing. Human Slavery, Property in Man If the necessary import of its words alone do but fall an iota short of this point, the instrument gives, and legally speaking intended to give, no legal sanction to slavery.

22:14Now who can in good faith say that the words alone of the Constitution come up to this point? No one who knows anything of law and the meaning of words. Not even the name of the thing alleged to be sanctioned is given. Here he's referring to the fact that the word slavery or slave cannot be found in the entire document. The Constitution itself contains no designation, description or necessary admission of the existence of such a thing as slavery, servitude or the right of property in man. We are obliged to go out of the instrument and grope among the records of oppression, lawlessness and crime, records unmentioned and of course unsanctioned by the Constitution, to find the thing to which it is said that the words of the Constitution apply.

23:01And when we have found this thing, which the Constitution dare not name, we find that the Constitution has sanctioned it, if at all, only by enigmatical words, by unnecessary implication and inference, by innuendo and double entendre, and under a name that entirely fails of describing the thing. Everybody must admit that the Constitution itself contains no language from which alone any court that were either strangers to the prior existence of slavery or that did not assume its prior existence to be legal could legally decide that the Constitution sanctioned it. And this is the true test for determining whether the Constitution does or does not sanction slavery. That is, whether a court of law strangers to the prior existence of slavery or not assuming its prior existence to be legal, looking only at the naked language of the instrument, could consistently with legal rules judicially determine that it sanctions slavery.

23:58Every lawyer who at all deserves that name knows that the claim for slavery could stand no such test. The fact is palpable that the Constitution contains no such legal sanction, that it is only by unnecessary implication and inference, by innuendo and double entendre, by the aid of exterior evidence, the assumption of the prior legality of slavery, and the gratuitous imputation of criminal intentions that are not avowed in legal terms that any sanction of slavery as a legal institution can be extorted from it. Well, that is, if at some length, that is his rule of interpretation. And again, if you were to say to him, but what about the intentions of so-and-so and this and that person behind closed doors when they drafted it or when they approved it?

24:45Here is one of Spooner's replies. He says any forty or fifty men, like those who framed the Constitution, may now secretly concoct another, that is honest in its terms, and yet in secret conclave confess to each other the criminal objects they intended to accomplish by it, if its honest character should enable them to secure it for the adoption of the people. But if the people should adopt such a Constitution, would they thereby adopt any of the criminal and secret purposes of its authors? Or if the guilty confessions of these conspirators should be revealed 50 years afterwards, would judicial tribunals look to them as giving the government any authority for violating the legal meaning of the words of such constitution and for so construing them as to subserve the criminal and shameless purposes of its originators?

25:36Well, let's take a brief look now since we're running out of time already on item number one. at the three clauses in the Constitution that are most frequently assumed to refer to slavery. And by the way, I don't necessarily agree with Spooner. I don't necessarily believe that he made his case. But he is an important figure and he has an interesting method of constitutional interpretation, original meaning as opposed to original intent. His method has been taken up by, for example, Professor Randy Barnett at Boston University Law School, who wrote a very important study of Spooner and his unconstitutionality of slavery, which is easily found on the Internet, which I recommend and which I myself have benefited from. And there's also the fact that other people did in fact adopt his view. Frederick Douglass, the famous ex-slave turned abolitionist who had been a Garrisonian, read the Unconstitutionality of Slavery and then converted to Spooner's side and believed his arguments.

26:31Well, the first one in the order that Spooner discusses them is Article 4, Section 2. No person held to service or labor in one state, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. Well, this is the sort of fugitive slave clause, because in effect, it's taken to mean that if a slave should run away to some non-slave area, that state to which he has run is obligated to turn him over to his owner. But now, the exegesis that Spooner proposes that we accept on this clause is as follows.

27:21This is a very long book, his Unconstitutionality of Slavery, and he discusses each of these at great length. And any brief coverage is going to make it seem as if he had only trivial arguments, or he had very little to say. He had a great deal to say. I'm just summarizing a couple of points that he makes. Well, first Spooner again notes that I don't see the word slave in here. He says, neither service nor labor is necessarily slavery. And again, his take is that if I can put an innocent interpretation on these words, then because the law always will lean in the direction of natural law, that is the meaning that we're going to use in interpreting the clause.

28:10He says, neither service nor labor is necessarily slavery. And not being necessarily slavery, The words cannot, in this case, be strained beyond their necessary meaning to make them sanction a wrong. And then he emphasizes, the stretching, if there be any, must always be towards the right. The words service or labor do not necessarily, nor in their common acceptation, so much as suggest the idea of slavery. That is, they do not suggest the idea of the laborer or servant being the property of the person for whom he labors. An indented apprentice serves in labor for another. He is held to do so under a contract, and for a consideration that are recognized by the laws as legitimate and consistent with natural right, yet he is not owned as property.

28:55A condemned criminal is held to labor, yet he is not owned as property. The law allows no such straining of the meaning of words towards the wrong as that which would convert the words service or labor of men into property in man and thus make a man who serves or labors for another the property of that other. And then, again, he elaborates on this at great length. The second of the clauses that I have up here is Article 1, Section 2, which is the so-called Three-Fifths Clause, The Smith's Clause, which says representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.

29:45Well, traditionally, other persons are interpreted as being slaves and this clause was inserted to make compromise between North and South possible for reasons that I explained in an earlier chapter. But what does Spooner's take? Well, a lot of times this section would just be argued, this is obviously a reference to slavery, I mean, not only, even if you don't want to look at the record of the convention, The fact is that it refers to free persons on the one hand and all other persons on the other. Well, what interpretation does that permit, after all, for other persons? If they're not free, what else are they? They must be slaves. But here, again, sticking to original meaning, what do the words mean? Spooner, in fact, entertains, what has English law meant by the word free?

30:32Has it intended this word to mean the opposite of slave? And he writes, the English law had for centuries used the word free as describing persons possessing citizenship or some other franchise or peculiar privilege as distinguished from aliens and persons not possessed of such franchise or privilege. This law and this use of the word free had been adopted in this country from its first settlement. So it simply means people enjoying all the privileges of citizenship. So other persons could simply refer to resident aliens. Finally, and again, many, many more arguments he advances. Finally, Article 1, Section 9, Spooner writes, the migration, sorry, the Constitution, Spooner quotes, the migration or importation of such persons, as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importation, not exceeding $10 for each person.

31:33Well, this, again, is typically understood to mean that the slave trade shall be, cannot be prohibited by the Congress until 1808. But again, Spooner looks at this and says, migration or importation of such persons as any of the states now existing shall think proper to admit. He says, what impartial observer, looking at those words alone, not looking at historical evidence or what people said, But looking at those words would say, well, this must refer to the slave trade. None. None. Nobody would look at those words and say that that refers to the slave trade. Therefore, we're not going to interpret it as referring to the slave trade. We will simply say that it refers to the importation, which, by the way, does not necessarily mean importation of property.

32:20That was an argument that said this must refer to slaves because we use the word importation. and slave labor was thought of as property and we use the word importation with property so that means it must refer to slavery but the word importation was referred to the importation of foreigners all the time not presuming that they were slaves. It just simply means that the general importation of foreigners would be uninhibited by Congressional action until 1808. Now whether or not we accept these arguments, whether they are textually strained or not as some have alleged, It is nevertheless an interesting argument, and Spooner is proposing for our consideration an interesting method of constitutional interpretation that I don't necessarily share, but nevertheless I still find sort of compelling and interesting, but yet Spooner is sort of one of these people who's entirely left out, like no one talks about him.

33:14You get to the page in the American History textbook where Spooner should be, and it's blank, You can almost hear cricket sounds coming out of the book as if it's like nothing, no reference to him at all. He should be mentioned because he's an interesting guy and a lot of people have formed their whole political philosophy basically based on Spooner. You do a search for Lysander Spooner on the internet. You'll find a lot of interesting material. Well, I'm obviously only going to get to two of the things. The second one will take only a moment, but I think it's important enough that I do want to tell you about it. And then we'll have our discussion. The second of the items that I guess I'll cover today involves fugitive slave laws, as long as we're on the subject of slavery. Fugitive slave laws are statutes that are meant to give, well, statutory standing to the Constitution's clause, Article 4, Section 2, authorizing and in fact demanding the return of runaway slaves.

34:09Now we're going to depart from Spooner here and assume that Article 4, Section 2 does in fact refer to the return of runaway slaves. Well, the first fugitive slave law was passed in 1793, but the one that we're going to look at was passed in 1850 and it in effect gave legal teeth to this demand and I want to give an overview of the details of it because I want to show how in fact the principles of 98 were brought to bear against it. First, we'll talk about fugitive slave laws, then I'll remind you about what the Principles of 98 were, then we'll put them together and it'll be glorious. So, at first glance, it does seem as if the return of runaway slaves is something that the Constitution requires, because clearly Article IV, Section 2, if you're going to take it, using the history behind it as support for your interpretation, There does seem to be a lot of evidence that that was the intent of those words.

35:16And so, therefore, it would seem that how can a state resist this using Jefferson's principles? I'll just briefly remind you that Jefferson had this view that if a law is unconstitutional, the states can resist and refuse to enforce it. Well, those principles don't seem relevant here because people supporting the Fugitive Slave Act can, in fact, point to a constitutional clause to justify themselves. So how could these principles be relevant? And the answer is that there were constitutional objections raised against the Fugitive Slave Act by people who acknowledged that there was this clause, but who nevertheless said that nevertheless the specifics of this act violate other constitutional clauses, and therefore we are freed from the responsibility of enforcing them.

36:04So, in fact, the 1850 Fugitive Slave Act took all fugitive slave cases and put them under federal jurisdiction so that states couldn't just evade them, the federal government would get into the act. Fugitives who were going to be recaptured were denied the right to testify in their own defense and they were denied the right to a jury trial. Bystanders under the 1850 Act were forced to participate in the capture of a fugitive and stiff penalties were imposed for sheltering or just obstructing the capture of a fugitive. Now, according to the Fugitive Slave Act of 1850, if you want to reclaim a runaway slave, you pretty much observe the following procedure.

36:52The owner presents himself in a court in his home state where he states in an affidavit that the slave in question has escaped and that the slave owed labor to him and the owner must provide a physical description of the slave. Now if the judge believes that the owner has demonstrated his case, The judge issues at that point an official transcript that the owner could then present in whatever jurisdiction he later could find the fugitive. So the judge from his home state has in effect already authorized him to go get this person and then all he has to do is present this document. So that transcript, now we get to the role of the federal government. Federal commissioners now have the role of not determining that the man in question was in fact a runaway slave.

37:43The Federal Commissioner's job is simply to determine whether the man that the owner finds and presents to the Commissioner was the man described in the judge's transcript. So that is to say that there's a physical description of the slave that's given and the Federal Commissioner's job now is simply to say, yes, this man fits this physical description. It is not his job to say, yes, this man was in fact the slave of the owner. The owner. That's already been determined. The Federal Commissioner simply identifies this is the man who appears in the claim. If this is the correct man, according to the physical description, then he's returned to slavery. There's no trial, he gets no jury trial, there's no appeal.

38:28If the man fits the description, he is remanded to slavery. Well, there were a great many constitutional objections raised against this act. For one, there was the objection that the fugitive was denied a jury trial. Another was a more technical objection, which is that the Federal Commissioners were obviously exercising judicial power, and yet the conditions of their employment did not comply with those established for judicial officers by the Constitution. According to the Constitution, such judicial officers are appointed by the President, they The Federal Commissioners under the Fugitive Slave Act of 1850 were not paid by a salary, but they were paid by a fee that was paid every time there was a case brought before them.

39:20Now that's a very technical objection. But even worse, the Federal Fugitive Slave Act Commissioners receive a $10 fee if they return the accused person to slavery, and only $5 if they free him. Well, there's obviously a vested interest in returning them to slavery. And in fact, Lysander Spooner himself argued that even before we get to this differential problem, it was simply that the fact they were being paid by fees made it unconstitutional because all judicial officers must be paid by salary. But other scholars have argued that obviously, I quote one of them, to give a commissioner a pecuniary interest in the outcome of a hearing over which he presides, That is to say, offering him $10 to hear it one way and $5 to hear the other is a violation of the due process clause of the Fifth Amendment.

40:10Well, several northern states enacted what became known as personal liberty laws designed to frustrate the enforcement of the law. Only rarely did these actually directly oppose the law. What they simply did was make the enforcement of the law very difficult. They penalized and even impeached state officials They were officials who lent their support to a fugitive slave claimant. They refused to allow federal officials to use of local jails to house accused fugitives and ensured that claimants could not simply snatch accused fugitives from the free states. They had to go before the federal fugitive slave tribunals. This latter provision made the reclamation of fugitive slaves often prohibitively expensive, what with the legal fees and other expenses that a potential claimant would incur.

40:57But even these limited forms of resistance often opened up the northern states to charges of dereliction of constitutional duty. But now and here I get to the point. I noted in chapter 3 an interesting case that came before the Supreme Court of the state of Wisconsin, in which Wisconsin was being accused of not faithfully executing the Fugitive Slave Act of 1850. Now, we recall from last time that in 1798 in the Virginia and Kentucky resolutions, Jefferson and the Kentucky resolutions had laid out certain principles that then were taken up by the very states that opposed them in 1798. I showed you at least briefly some evidence that New England states began using them. It was common currency and basically the principles of 98, named after the resolutions of 1798, were as follows.

41:48Well, it follows that the U.S. government has been given a limited number of powers delegated to it by the states. The states reserve all powers not delegated to the federal government, and that if the federal government should go beyond the powers granted to it and exercise a power that is in fact reserved to the states and has not been delegated to it, therefore the states can nullify that law and refuse to enforce it within their borders. Well, how does Wisconsin deal with this accusation that it's not faithfully executing the Fugitive Slave Act? Well, here we go. This is what the Wisconsin Supreme Court said.

42:43The U.S. Government cannot monopolistically interpret the Constitution. The states also must be able to interpret it. There is no common judge between the Federal Government and the states. The Supreme Court does not count. The Supreme Court is part of the Federal Government. That's not an impartial judge. There is no common judge. Therefore, each of the parties interprets it for itself. Resolve that the principle and construction contended for by the party which now rules in the councils of the nation, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government and not the Constitution would be the measure of their powers. That the several states which formed that instrument being sovereign and independent have the unquestionable right to judge of its infractions and that a positive defiance of those sovereignties of all unauthorized acts done or attempted to be done under color of that instrument is the rightful remedy.

43:38Well, these paragraphs I've just cited are taken almost word for word from the Kentucky resolutions of 1798. The principles of 98 were still alive over six decades later. This ruling came down in 1859. And contrary to those who say, well, states' rights is just a big code word to protect slavery. To the contrary, states' rights in this case, as in many other cases, were used on behalf of the cause of human liberty. and the cause of human liberty, and it was federal government power that was used on behalf of the cause of human bondage. Well, given that I'm already somewhat over my time, we will leave as a mystery forever what that third theme was going to be, and we'll adjourn for our brief, well, adjournment, and I'll run and get copies of the reading that any of you may have missed from last time, so thank you.