Where would be the end of fraud and litigation, if one party could bring into court a written instrument, without any signature, and claim to have it enforced, upon the ground that it was written for another man to sign? that this other man had promised to sign it? that he ought to have signed it? that he had had the opportunity to sign it, if he would? but that he had refused or neglected to do so? yet that is the most that could ever be said of the Constitution.3 The very judges, who profess to derive all their authority from the Constitution—from an instrument that nobody ever signed—would spurn any other instrument, not signed, that should be brought before them for adjudication.
Moreover, a written instrument must, in law and reason, not only be signed, but must also be delivered to the party (or to some one for him), in whose favor it is made, before it can bind the party making it. The signing is of no effect, unless the instrument be also delivered. And a party is at perfect liberty to refuse to deliver a written instrument, after he has signed it. He is as free to refuse to deliver it, as he is to refuse to sign it. The constitution was not only never signed by anybody, but it was never delivered by anybody to anybody, or to anybody’s agent or attorney. It can therefore be of no more validity as a contract, than can any other instrument, that was never signed or delivered.
V
As further evidence of the general sense of mankind, as to the practical necessity there is that all men’s important contracts, especially those of a permanent nature, should be both written and signed, the following facts are pertinent.
For nearly two hundred years—that is, since 1677—there has been on the statute book of England, and the same, in substance, if not precisely in letter, has been re-enacted, and is now in force, in nearly or quite all the States of this Union, a statute, the general object of which is to declare that no action shall be brought to enforce contracts of the more important class, unless they are put in writing, and signed by the parties to be held chargeable upon them.4
The principle of the statute, be it observed, is, not merely that written contracts shall be signed, but also that all contracts, except those specially exempted—generally those that are for small amounts, and are to remain in force but for a short time—shall be both written and signed.
The reason of the statute, on this point, is, that it is now so easy a thing for men to put their contracts in writing, and sign them, and their failure to do so opens the door to so much doubt, fraud, and litigation, that men who neglect to have their contracts—of any considerable importance—written and signed, ought not to have the benefit of courts of justice to enforce them. And this reason is a wise one; and that experience has confirmed its wisdom and necessity, is demonstrated by the fact that it has been acted upon in England for nearly two hundred years, and has been so nearly universally adopted in this country, and that nobody thinks of repealing it.
We all know, too, how careful most men are to have their contracts written and signed, even when this statute does not require it. For example, most men, if they have money due them, of no larger amount than five or ten dollars, are careful to take a note for it. If they buy even a small bill of goods, paying for it at the time of delivery, they take a receipted bill for it. If they pay a small balance of a book account, or any other small debt previously contracted, they take a written receipt for it.
Furthermore, the law everywhere (probably) in our country, as well as in England, requires that a large class of contracts, such as wills, deeds, etc., shall not only be written and signed, but also sealed, witnessed, and acknowledged. And in the case of married women conveying their rights in real estate, the law, in many States, requires that the women shall be examined separate and apart from their husbands, and declare that they sign their contracts free of any fear or compulsion of their husbands.
Such are some of the precautions which the laws require, and which individuals—from motives of common prudence, even in cases not required by law—take, to put their contracts in writing, and have them signed, &c., to guard against all uncertainties and controversies in regard to their meaning and validity. And yet we have what purports, or professes, or is claimed, to be a contract—the Constitution—made eighty years ago, by men who are now all dead, and who never had any power to bind us, but which (it is claimed) has nevertheless bound three generations of men, consisting of many millions, and which (it is claimed) will be binding upon all the millions that are to come; but which nobody ever signed, sealed, delivered, witnessed, or acknowledged; and which few persons, compared with the whole number that are claimed to be bound by it, have ever read, or even seen, or ever will read, or see. And of those who ever have read it, or ever will read it, scarcely any two, perhaps no two, have ever agreed, or ever will agree, as to what it means.
Moreover, this supposed contract, which would not be received in any court of justice sitting under its authority, if offered to prove a debt of five dollars, owing by one man to another, is one by which—as it is generally interpreted by those who pretend to administer it—all men, women and children throughout the country, and through all time, surrender not only all their property, but also their liberties, and even lives, into the hands of men who by this supposed contract, are expressly made wholly irresponsible for their disposal of them. And we are so insane, or so wicked, as to destroy property and lives without limit, in fighting to compel men to fulfil a supposed contract, which, inasmuch as it has never been signed by anybody, is, on general principles of law and reason—such principles as we are all governed by in regard to other contracts—the merest waste paper, binding upon nobody, fit only to be thrown into the fire; or, if preserved, preserved only to serve as a witness and a warning of the folly and wickedness of mankind.
VI.
It is no exaggeration, but a literal truth, to say that, by the Constitution—not as I interpret it, but as it is interpreted by those who pretend to administer it—the properties, liberties, and lives of the entire people of the United States are surrendered unreservedly into the hands of men who, it is provided by the Constitution itself, shall never be “questioned” as to any disposal they make of them.
Thus the Constitution (Art. 1, Sec. 6) provides that, “for any speech or debate [or vote,] in either house, they [the senators and representatives] shall not be questioned in any other place.”
The whole law-making power is given to these senators and representatives, [when acting by a two-thirds vote]5; and this provision protects them from all responsibility for the laws they make.
The Constitution also enables them to secure the execution of all their laws, by giving them power to withhold the salaries of, and to impeach and remove, all judicial and executive officers, who refuse to execute them.
Thus the whole power of the government is in their hands, and they are made utterly irresponsible for the use they make of it. What is this but absolute, irresponsible power?
It is no answer to this view of the case to say that these men are under oath to use their power only within certain limits; for what care they, or what should they care, for oaths or limits, when it is expressly provided, by the Constitution itself, that they shall never be “questioned,” or held to any responsibility whatever, for violating their oaths, or transgressing those limits?
Neither is it any answer to this view of the case to say that the particular individuals holding this power can be changed once in two or six years; for the power of each set of men is absolute during the term for which they hold it; and when they can hold