Anti-slavery bugle. [volume] (New-Lisbon, Ohio) 1845-1861, 1847-04-23

thO dSSuStu eHdil tIJUy tIB IlHHt 10 De COu-
fronted til the witnesses against HIM, q" to
have counsel for HIS Defence" "a person
charged with crime, shall be delivered up on
demand of the State from which HE ned."-
Here and elsewhere the masculine gender on
ly is used, but are not women inciudedl 1t
is a principle OF law too well known for Mr..
Spooner to have overlooked it, that in statutes
the masculine gender includes both sexes
See Coke, 2. Inst. IS. Chit'y's Contracts.
Dwarris 713.
II, Instead. OF legal rules, we refer only to
general and popular usage the same is true.
" He that believeth and is baptized shall be
saved, and HE that b~elieveth not shall be
damned" has always been supposed to apply
as much TO women as to men.
In this case, therefore. if we construe the
clause according to Mr.. Spooner's rules, wo-
men are constitutionably eligible 10 the Presi-
dency nothing hut " extraneous and histori-
cal evidence shields us from this result. AS
Mr.. Spooner does not allow of this when it
will fix upon a clause any meaning contrary
to " natural right" he is bound so 10 construe
this provision, or 10 give up his rules, and
more especially his second one.
So Congress has the power to "defne and
punish piracy"
Suppose the Anti Capital Punishment par
ty should increase, and insist that ito pun
ish" may mean to imprison, does not neces-
sarily refer TO CAPITAL Funishment-that this
is inconsistent with natural right"-hence,
"as an innocent meaning and no other must,
if possible, be affixed 10 the Constitutions"
the Supreme Court are bound to decide that
the Constitution does not give Congress pow
er to punish pirates with death. This would
be Legitimate on Mr.. Spc oner's rule, but would
it not be absurd Ought not that Court to
inquire what were the ideas and laws of 1889
on the subject, and if ION this extraneous
and historical evidence" they found that cap
ital punishment was not then deemed wrong,
ought they not 10 consider this "as ~irresisti-
Bile clearness of expression" and to hold the
construction innocent and admissible? The
same may be said of slavery.
Again; "where words are susceptible Of
two meanings, one consistent and the other
Inconsistent With justice and natural right"
&c.
Here the question arises, who is to decide
whether "A construction is or is not consistent
with natural rightl By " hat test are Courts
TO determine what is right and wrongl MIR.
Spooner leaves it to be supposed that where
yer a thing is generally considered wrong,
there the Court will act on this principle
The use of an ambiguous word is here again
the source of his mistake. 1t is true, as he
says, that Courts will always give can in,
nocent meaning to words where they will beaI
it," but the Test by which they try the gull
and innocence Of a meaning is not genera
opinion or their own conscientious convic
tons; but by comparing it with the genera
system and spirit Of the Gu. They will al
ways "strain hard" as they phrase il, tC
give a legally innocent meaning 10 words
B nOiIInn mora nut in Ioin,r en- thau pora
will go counter TO the general spirit and sys
TEN Of national law. We will offer some gu
thorIlies on this point, referring also, to tn
argument Of our first article, since a Judge
might almost as well take counsel of his in
dividual opinions and override laws, as OF
the same account evade them under pretenc,
Of construction.
And first, Marshall, in the very sentence
cited, refers 10 cases where ~ Fundamental
principles arc oveTthrown where The genera
system IF lar is departed FROM" &C., clearl,
showing that he referred to violations of lega
principles, not of moral ones.
This is the form in which the whole Bencl
Of. Massachusetts, with Parsons at their head
lay down the principle:
The natural import of the words Of am
: Legislative act, according to the common US
Of them, when applied TO The subject matte
of the act, is to be considered as expressinI
the intention of the Legislature, unless tn
Intention so resulting from the ordinary i'm
= port of the words, be repugnant TO sound an
acknowledged principles Of national pohicy."-
0 Mass. 529.
In the Girard case, whose exclusion {
ministers from his college, was objected +
as void, because contrary to religion-tf
Court say:
ave do not claim the right and we al
u not at liberty to look at general consideration
Of supposed public interests and policy b,
Il yond those which the Constitution, laws, an
L judicial decisions make known.-2. Howar,
J 1917.
!. Lord Coke has undertaken to define diScr
ton several times, and his idea Of what so
, of discretion Courts may exercise in the!
matters, is shown by his definitions. DiScr
h ito est discemere per iegem quid SIT justum.-
Discretion is The science Of determining, a
cording to law what is iust.-2. Inst. %
described as scirc per legem guild SIT j%ustun
(To find out by law what is just.)-lO Re
= l10.
a. SO Sir ]. Jekyl:
lie Equity is said to be ~"secumdum disc
y, Honem boni viri, according to the discreet
O. Of a good man.) Yet when it is asked, J
it bonus est quis !? (who is a good man y the q
lie swer is, Qui e0nsuAa patrun,, gui leges ju
lie que Ueruaf. (the one who adheres to the on.
g ions Of the fathers, to Lat0s and to precedent
ID . P. WINS. 1853.
We We may illustrate the proper meaning
Mr.. Spooner's rule by the construction 7
n by the Courts upon ono exactly parallel ia
IL in relation to customs and usages. Ii is
" well settled doctrine that " bad (wicked) O.
at toms are not law, that rules are to be dis
It, garded if absurd or unjust.-See Blacksto
and Coke. But what is meant by "wick
ut customsl ?"
n twas long the custom and rule in Engla
no that acts Of Parliament passed the last day
SIS the session, had the same efficacy as if pa