IV

Contracts Must Be Signed

The pretended "constitution" not only binds nobody now, but it never did bind anybody. It never bound anybody, because it was never agreed to by anybody in such a manner as to make it, on general principles of law and reason, binding upon him.

It is a general principle of law and reason, that a written instrument binds no one until he has signed it. This principle is so inflexible a one, that even if a man is unable to write his name, he must still "make his mark," before he is bound by any contract. This custom was established ages ago, when few men could write their names; when a clerk - that is, a man who could write - was so rare and valuable a person, that even if he were guilty of high crimes, he was entitled to pardon, on the ground that the public could not afford to lose his services. Even at that time, a written contract must be signed; and men who could not write, either "made their mark," or signed their contracts by stamping their seals upon wax affixed to the parchment on which their contracts were written. Hence the custom of affixing seals, that has continued to this time.

The laws holds, and reason declares, that if a written instrument is not signed, the presumption must be that the party to be bound by it, did not choose to sign it, or to bind himself by it. And law and reason both give him until the last moment, in which to decide whether he will sign it, or not. Just as with a written contract, a man must not be compelled to enter into any unwritten (verbal) contract. Besides a written contract providing evidence of there being a contract; until it is written, he may not know its precise legal meaning. And when it is written, and he has had the opportunity to satisfy himself of its precise legal meaning, he is then expected to decide, and not before, whether he will agree to it or not. And if he do not then sign it, his reason is supposed to be, that he does not choose to enter into such a contract. The fact that the instrument was written for him to sign, or with the hope that he would sign it, goes for nothing.

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 pretended "constitution." The very men who drafted it, never signed it in any way to bind themselves by it, as a contract. And not one of them probably ever would have signed it in any way to bind himself by it, as a contract. The impostor "judges," who profess to derive all their supposed "authority" from the pretended "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. (When a signed contract is not delivered, there is no communication from one party to the other that the contract has been agreed to and executed, and the other party has no proof to the contrary. It is as ineffectual as if it was never signed.) The pretended "constitution" was not only never signed by anybody, but it was never delivered by 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

AND In Writing

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. [At this point there is a footnote listing 34 states whose statute books Spooner had examined, all of which had variations of this English statute; the footnote also quotes part of the Massachussetts statute.]

The principle of the statute, be it observed, is, not merely that written contracts shall be signed, but also that all contracts, except for those specially exempted - generally those that are for small amounts, and are to remain in force for but 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 the motives of common prudence, even in cases not required by law - take, to put their contracts in writing, and have them signed, and, 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 pretended "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 supposed "authority," if offered to prove a debt of five dollars, 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 their property, but also their liberties, and even their 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 fulfill a supposed "contract," which, inasmuch as it has never been signed by anybody, is, on general principles of law and reason, 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.

Next

Irresponsible Power Derived from the Pretended "Constitution"