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THE
UNCONSTITUTIONALITY
OF
SLAVERY
BY LYSANDER SPOONER.
BOSTON:
PUBLISHED BY BELA MARSH,
NO. 14 BROMFIELD ST.
1860.
UNCONSTITUTIONALITY OF SLAVERY.
CHAPTER I.
WHAT IS LAW?
Before examining the language of the Constitution, in regard to Slavery, let us obtain a view of the principles, by virtue of which law arises out of those constitutions and compacts, by which people agree to establish government.
To do this it is necessary to define the term law. Popular opinions are very loose and indefinite, both as to the true definition of law, and also as to the principle, by virtue of which law results from the compacts or contracts of mankind with each other.
What then is LAW? That law, I mean, which, and which only, judicial tribunals are morally bound, under all circumstances, to declare and sustain?
In answering this question, I shall attempt to show that law is an intelligible principle of right, necessarily resulting from the nature of man; and not an arbitrary rule, that can be established by mere will, numbers or power.
To determine whether this proposition be correct, we must look at the general signification of the term law.
The true and general meaning of it, is that natural, permanent, unalterable principle, which governs any particular thing or class of things. The principle is strictly a natural one; and the term applies to every natural principle, whether mental, moral or physical. Thus we speak of the laws of mind; meaning thereby those natural, universal and necessary principles, according to which mind acts, or by which it is governed. We speak too of the moral law; which is merely an universal principle of moral obligation, that arises out of the nature of men, and their relations to each [*6] other, and to other things and is consequently as unalterable at the nature of men. And it is solely because it is unalterable in its nature, and universal in its application, that it is denominated law. If it were changeable, partial or arbitrary, it would be no law. Thus we speak of physical laws; of the laws, for instance, that govern the solar system; of the laws of motion, the laws of gravitation, the laws of light, &c., &c. Also the laws that govern the vegetable and animal kingdoms, in all their various departments: among which laws may be named, for example, the one that like produces like. Unless the operation of this principle were uniform, universal and necessary, it would be no law.
Law, then, applied to any object or thing whatever, signifies a natural, unalterable, universal principle, governing such object or thing. Any rule, not existing in the nature of things, or that is not permanent, universal and inflexible in its application, is no law, according to any correct definition of the term law.
What, then, is that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men? Those rights of person, property, &c., which one human being has, as against other human beings?
I shall define it to be simply the rule, principle, obligation or requirement of natural justice.
This rule, principle, obligation or requirement of natural justice, has its origin in the natural rights of individuals, results necessarily from them, keeps them ever in view as its end and purpose, secures their enjoyment, and forbids their violation. It also secures all those acquisitions of property, privilege and claim, which men have a natural right to make by labor and contract.
Such is the true meaning of the term law, as applied to the civil rights of men. And I doubt if any other definition of law can be given, that will prove correct in every, or necessarily in any possible case. The very idea of law originates in men's natural rights. There is no other standard, than natural rights, by which civil law can be measured. Law has always been the name of that rule or principle of justice, which protects those rights. Thus we speak of natural law. Natural law, in fact, constitutes the great body of the law that is professedly administered by judicial tribunals: and it always necessarily must be for it is impossible to anticipate a thousandth part of the cases that arise, so as to enact a special law for them. Wherever the cases have [*7] not been thus anticipated, the natural law prevails. We thus politically and judicially recognize the principle of law as originating in the nature and rights of men. By recognizing it as originating in the nature of men, we recognize it as a principle, that is necessarily as immutable, and as indestructible as the nature of man. We also, in the same way, recognize the impartiality and universality of its application.
If, then, law be a natural principle one necessarily resulting from the very nature of man, and capable of being destroyed or changed only by destroying or changing the nature of man it necessarily follows that it must be of higher and more inflexible obligation than any other rule of conduct, which the arbitrary will of any man, or combination of men, may attempt to establish. Certainly no rule can be of such high, universal and inflexible obligation, as that, which, if observed, secures the rights, the safety and liberty of all.
Natural law, then, is the paramount law. And, being the paramount law, it is necessarily the only law: for, being applicable to every possible case that can arise touching the rights of men, any other principle or rule, that should arbitrarily be applied to those rights, would necessarily conflict with it. And, as a merely arbitrary, partial and temporary rule must, of necessity, be of less obligation than a natural, permanent, equal and universal one, the arbitrary one becomes, in reality, of no obligation at all, when the two come in collision. Consequently there is, and can be, correctly speaking, no law but natural law. There is no other principle or rule, applicable to the rights of men, that is obligatory in comparison with this, in any case whatever. And this natural law is no other than that rule of natural justice, which results either directly from men's natural rights, or from such acquisitions as they have a natural right to make, or from such contracts as they have a natural right to enter into.
Natural law recognizes the validity of all contracts which men have a natural right to make, and which justice requires to be fulfilled: such, for example, as contracts that render equivalent for equivalent, and are at the same time consistent with morality, the natural rights of men, and those rights of property, privilege, &c., which men have a natural right to acquire by labor and contract.
Natural law, therefore, inasmuch as it recognizes the natural right of men to enter into obligatory contracts, permits the formation of government, founded on contract, as all our governments [*8] profess to be. But in order that the contract of government may be valid and lawful, it must purport to authorize nothing inconsistent with natural justice, and men's natural rights. It cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government which is but an association of individuals than to a single individual. They are a necessary attribute of man's nature; and he can no more part with them to government or anybody else than with his nature itself. But the contract of government may lawfully authorize the adoption of means not inconsistent with natural justice for the better protection of men's natural rights. And this is the legitimate and true object of government. And rules and statutes, not inconsistent with natural justice and men's natural rights, if enacted by such government, are binding, on the ground of contract, upon those who are parties to the contract, which creates the government, and authorizes it to pass rules and statutes to carry out its objects.
But natural law tries the contract of government, and declares it lawful or unlawful, obligatory or invalid, by the same rules by which it tries all other contracts between man and man. A contract for the establishment of government, being nothing but a voluntary contract between individuals for their mutual benefit, differs, in nothing that is essential to its validity from any other contract between man and man, or between nation and nation. If two individuals enter into a contract to commit trespass, theft, robbery or murder upon a third, the contract is unlawful and void, simply because it is a contract to violate natural justice, or men's natural rights. If two nations enter into a treaty, that they will unite in plundering, enslaving or destroying a third, the treaty is unlawful, void and of no obligation, simply because it is contrary [*9] to justice and men's natural rights. On the stone principle, if the majority, however large, of the people of a country enter into a contract of government, called a constitution, by which they agree to aid, abet or accomplish any kind of injustice, or to destroy or invade the natural rights of any person or persons whatsoever, whether such persons be parties to the compact or not, this contract of government is unlawful and void and for the same reason that a treaty between two nations for a similar purpose, or a contract of the same nature between two individuals, is unlawful and void. Such a contract of government has no moral sanction. It confers no rightful authority upon those appointed to administer it. It confers no legal or moral rights, and imposes no legal or moral obligation upon the people who are parties to it. The only duties, which any one can owe to it, or to the government established under color of its authority, are disobedience, resistance, destruction.
Judicial tribunals, sitting under the authority of this unlawful contract or constitution, are bound, equally with other men, to declare it, and all unjust enactments passed by the government in pursuance of it, unlawful and void. These judicial tribunals cannot, by accepting office under a government, rid themselves of that paramount obligation, that all men are under, to declare, if they declare anything, that justice is law; that government can have no lawful powers, except those with which it has been invested by lawful contract; and that an unlawful contract for the establishment of government, is as unlawful and void as any other contract to do injustice.
No oaths, which judicial or other officers may take, to carry out and support an unlawful contract or constitution of government, are of any moral obligation. It is immoral to take such oaths, and it is criminal to fulfil them. They are, both in morals and law, like the oaths which individual pirates, thieves and bandits give to their confederates, as an assurance of their fidelity to the purposes for which they are associated. No man has any moral right to assume such oaths; they impose no obligation upon those who do assume them; they afford no moral justification for official acts, in themselves unjust, done in pursuance of them.
If these doctrines are correct, then those contracts of government, state and national, which we call constitutions, are void, and unlawful, so far as they purport to authorize, (if any of them do authorize,) anything in violation of natural justice, or the natural [*10] rights of any man or class of men whatsoever. And all judicial tribunals are bound, by the highest obligations that can rest upon them, to declare that these contracts, in all such particulars, (if any such there be,) are void, and not law. And all agents, legislative, executive, judicial and popular, who voluntarily lend their aid to the execution of any of the unlawful purposes of the government, are as much personally guilty, according to all the moral and legal principles, by which crime, in its essential character, is measured, as though they performed the same acts independently, and of their own volition.
Such is the true character and definition of law. Yet, instead of being allowed to signify, as it in reality does, that natural, universal and inflexible principle, which has its origin in the nature of man, keeps pace everywhere with the rights of man, as their shield and protector, binds alike governments and men, weighs by the same standard the acts of communities and individuals, and is paramount in its obligation to any other requirement which can be imposed upon men instead, I say, of the term law being allowed to signify, as it really does, this immutable and overruling principle of natural justice, it has come to be applied to mere arbitrary rules of conduct, prescribed by individuals, or combinations of individuals, selfstyled governments, who have no other title to the prerogative of establishing such rules, than is given them by the possession or command of sufficient physical power to coerce submission to them.
The injustice of these rules, however palpable and atrocious it may be, has not deterred their authors from dignifying them with the name of law. And, what is much more to be deplored, such has been the superstition of the people, and such their blind veneration for physical power, that this injustice has not opened their eyes to the distinction between law and force, between the sacred requirements of natural justice, and the criminal exactions of unrestrained selfishness and power. They have thus not only suffered the name of law to be stolen, and applied to crime as a cloak to conceal its true nature, but they have rendered homage and obedience to crime, under the name of law, until the very name of law, instead of signifying, in their minds, an immutable principle of right, has come to signify little more than an arbitrary command of power, without reference to its justice or its injustice, its innocence or its criminality. And now, commands the most criminal, if christened with the name of law, obtain nearly as ready an [*11] obedience, oftentimes a more ready obedience, than law and justice itself. This superstition, on the part of the people, which has thus allowed force and crime to usurp the name and occupy the throne of justice and law, is hardly paralleled in its grossness, even by that superstition, which, in darker ages of the world, has allowed falsehood, absurdity and cruelty to usurp the name and the throne of religion.
But I am aware that other definitions of law, widely different from that I have given, have been attempted definitions too, which practically obtain, to a great extent, in our judicial tribunals, and in all the departments of government. But these other definitions are nevertheless, all, in themselves, uncertain, indefinite, mutable; and therefore incapable of being standards, by a reference to which the question of law, or no law, can be determined, Law, as defined by them, is capricious, arbitrary, unstable; is based upon no fixed principle; results from no established fact; is susceptible of only a limited, partial and arbitrary application; possesses no intrinsic authority; does not, in itself, recognize any moral principle; does not necessarily confer upon, or even acknowledge in individuals, any moral or civil rights; or impose upon them any moral obligation.
For example. One of these definitions one that probably embraces the essence of all the rest is this:
That "law is a rule of civil conduct, prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear." Noah Webster.
In this definition, hardly anything, that is essential to the idea of law, is made certain. Let us see. It says that,
"Law is a rule of civil conduct, prescribed by the supreme power of a state."
What is the "supreme power," that is here spoken of, as the fountain of law? Is it the supreme physical power? Or the largest concentration of physical power, whether it exist in one man or in a combination of men? Such is undoubtedly its meaning. And if such be its meaning, then the law is uncertain; for it is oftentimes uncertain where, or in what man, or body of men, in a state, the greatest amount of physical power is concentrated. Whenever a state should be divided into factions, no one having the supremacy of all the rest, law would not merely be inefficient, but the very principle of law itself would be actually extinguished. And men would have no "rule of civil conduct." This result alone is sufficient to condemn this definition. [*12]
Again. If physical power be the fountain of law, then law and force are synonymous terms. Or, perhaps, rather, law would be the result of a combination of will and force; of will, united with a physical power sufficient to compel obedience to it, but not necessarily having any moral character whatever.
Are we prepared to admit the principle, that there is no real distinction between law and force? If not, we must reject this definition.
It is true that law may, in many cases, depend upon force as the means of its practical efficiency. But are law and force therefore identical in their essence?
According to this definition, too, a command to do injustice, is as much law, as a command to do justice. All that is necessary, according to this definition, to make the command a law, is that it issue from a will that is supported by physical force sufficient to coerce obedience.
Again. If mere will and power are sufficient, of themselves, to establish law legitimate law such law as judicial tribunals are morally bound, or even have a moral right to enforce then it follows that wherever will and power are united, and continue united until they are successful in the accomplishment of any particular object, to which they are directed, they constitute the only legitimate law of that case, and judicial tribunals can take cognizance of no other.
And it makes no difference, on this principle, whether this combination of will and power be found in a single individual, or in a community of an hundred millions of individuals. The numbers concerned do not alter the rule otherwise law would be the result of numbers, instead of "supreme power." It is therefore sufficient to comply with this definition, that the power be equal to the accomplishment of the object. And the will and power of one man are therefore as competent to make the law relative to any acts which he is able to execute, as the will and power of millions of men are to make the law relative to any acts which they are able to accomplish.
On this principle, then that mere will and power are competent to establish the law that is to govern an act, without reference to the justice or injustice of the act itself, the will and power of any single individual to commit theft, would be sufficient to make theft lawful, as lawful as is any other act of injustice, which the will and power of communities, or large bodies of men, may be [*13] united to accomplish. And judicial tribunals are as much bound to recognize, as lawful, any act of injustice or crime, which the will and power of a single individual may have succeeded in accomplishing, as they are to recognize, as lawful, any act of injustice, which large and organized bodies of men, serfstyled governments, may accomplish.
But, perhaps it will be said that the soundness of this definition depends upon the use of the word "state" and that it therefore make a distinction between "the supreme power of a state," over a particular act, and the power of an individual over the same act.
But this addition of the word "state," in reality leaves the definition just where it would have been without it. For what is "a state?" It is just what, and only what, the will and power of individuals may arbitrarily establish.
There is nothing fixed in the nature, character or boundaries of "a state." Will and power may alter them at pleasure. The will and power of Nicholas, and that will and power which he has concentrated around, or rather within himself, establishes all Russia, both in Europe and Asia, as "a state." By the same rule, the will and power of the owner of an acre of ground, may establish that acre as a state, and make his will and power, for the time being, supreme and lawful within it.
The will and power, also, that established "a state" yesterday, may be overcome today by an adverse will and power, that shall abolish that state, and incorporate it into another, over which this latter will and power shall today be "supreme." And this latter will and power may also tomorrow be overcome by still another will and power mightier than they.
"A state," then, is nothing fixed, permanent or certain in its nature. It is simply the boundaries, within which any single combination or concentration of will and power axe efficient, or irresistible, for the time being.
This is the only true definition that can be given of "a state." It is merely an arbitrary name given to the territorial limits of power. And if such be its true character, then it would follow, that the boundaries, though but two feet square, within which the will and power of a single individual are, for the time being, supreme, or irresistible, are, for all legal purposes, "a state" and his will and power constitute, for the time being, the law within those limits; and his acts are, therefore, for the time being, [*14] as necessarily lawful, without respect to their intrinsic justice injustice, as are the acts of larger bodies of men, within those limits where their will and power are supreme and irresistible.
If, then, law really be what this definition would make it, merely "a rule of civil conduct prescribed by the supreme power of a state " it would follow, as a necessary consequence, that law is synonymous merely with will and force, wherever they are combined and in successful operation, for the present moment.
Under this definition, law offers no permanent guaranty for the safety, liberty, rights or happiness of any one. It licenses all possible crime, violence and wrong, both by governments and individuals. The definition was obviously invented by, and is suited merely to gloss over the purposes of, arbitrary power. We are therefore compelled to reject it, and to seek another, that shall make law less capricious, less uncertain, less arbitrary, more just, more safe to the rights of all, more permanent. And if we seek another, where shall we find it, unless we adopt the one first given, viz., that law is the rule, principle, obligation or requirement of natural justice?
Adopt this definition, and law becomes simple, intelligible, scientific; always consistent with itself; always harmonizing with morals, reason and truth. Reject this definition, and law is no longer a science: but a chaos of crude, conflicting and arbitrary edicts, unknown perchance to either morals, justice, reason or truth, and fleeting and capricious as the impulses of will, interest and power.
If, then, law really be nothing other than the rule, principle obligation or requirement of natural justice, it follows that government can have no powers except such as individuals may rightly delegate to it: that no law, inconsistent with men's natural rights, can arise out of any contract or compact of government: that constitutional law, under any form of government, consists only of those principles of the written constitution, that are consistent with natural law, and man's natural rights; and that any other principles, that may be expressed by the letter of any constitution, are void and not law, and all judicial tribunals are bound to declare them so. Though this doctrine may make sad havoc with constitutions statute hooks, it is nevertheless law. It fixes and determines the real rights of all men; and its demands are as imperious as any that can exist under the name of law. [*15]
It is possible, perhaps, that this doctrine would spare enough of our existing constitutions, to save our governments from the necessity of a new organization. But whatever else it might spare, one thing it would not spare. It would spare no vestige of that system of human slavery, which now claims to exist by authority of law. Fn2
CHAPTER II.
WRITTEN CONSTITUTIONS.
Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.
In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law [*16] contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal [*17] rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed "strictly" in favor [*18] of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit: "Where rights are infringed, where fundamental principles are [*19] overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects."fn3 [*20]
It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law.
For the more convenient consideration of this point, we will divide the constitutional history of the country into three periods; the first embracing the time from the first settlement of the country up to the Declaration of Independence; the second embracing the time from the Declaration of Independence to the adoption of the Constitution of the United States in 1789; and the third embracing all the time since the adoption of the Constitution of the United States.
Let us now consider the first period; that is, from the settlement of the country, to the Declaration of Independence
CHAPTER III.
THE COLONIAL CHARTERS
WHEN our ancestors came to this country, they brought with them the common law of England, including the writ of habeas corpus, (the essential principle of which, as will hereafter be shown, is to deny the right of property in man,) the trial by jury, and the other great principles of liberty, which prevail in England, and which have made it impossible that her soil should be trod by the foot of a slave.
These principles were incorporated into all the charters, granted to the colonies, (if all those charters were like those I have examined, and I have examined nearly all of them.) The general provisions of those charters, as will be seen from the extracts given in the note, were, that the laws of the colonies should "not be repugnant or contrary, but, as nearly as circumstances would allow, conformable to the laws, statutes and rights of our kingdom of England." [*22]
Those charters were the fundamental constitutions of the colonies, with some immaterial exceptions, up to the time of the revolution; as much so as our national and state constitutions are now the fundamental laws of our governments.
The authority of these charters, during their continuance, and the general authority of the common law, prior to the revolution, have been recognized by the Supreme Court of the United States. fn5 [*23]
No one of all these charters that I have examined and I have examined nearly all of them contained the least intimation that slavery had, or could have any legal existence under them. Slavery was therefore as much unconstitutional in the colonies, as it was in England.
It was decided by the Court of King's Bench in England Lord Mansfield being Chief Justice before our revolution, and while the English Charters were the fundamental law of the colonies -- that the principles of English liberty were so plainly incompatible with slavery, that even if a slaveholder, from another part of the world, brought his slave into England though only for a temporary purpose, and with no intention of remaining he nevertheless thereby gave the slave his liberty.
Previous to this decision, the privilege of bringing slaves into England, for temporary purposes, and of carrying them away, had long been tolerated.
This decision was given in the year 1772.fn6 And for aught I see, it was equally obligatory in this country as in England, and must have freed every slave in this country, if the question had then been raised here. But the slave knew not his rights, and had no one to raise the question lot him.
The fact, that slavery was tolerated in the colonies, is no evidence of its legality; for slavery was tolerated, to a certain extent, in England, (as we have already seen,) for many years previous to the decision just cited that is, the holders of slaves from abroad were allowed to bring their slaves into England, hold them during their stay there, and carry them away when they went. But the toleration of this practice did not make it lawful, notwithstanding all customs, not palpably and grossly contrary to the principles of English liberty, have great weight, in England, in establishing law.
The fact, that England tolerated, (i. e. did not punish criminally,) the African slavetrade at that time, could not legally establish slavery in the colonies, any more than it did in England especially in defiance of the positive requirements of the charters, that the colonial legislation should be consonant to reason, and not repugnant to the laws of England.
Besides, the mere toleration of the slave trade could not make slavery itself the right of property in man lawful anywhere; [*24] not even on board the slave ship. Toleration of a wrong is not law. And especially the toleration of a wrong, (i. e. the bare omission to punish it criminally,) does not legalize one's claim to property obtained by such wrong. Even if a wrong can be legalized at all, so as to enable one to acquire rights of property by such wrong, it can be done only by an explicit and positive provision.
The English statutes, on the subject of the slave trade, (so far as I have seen,) never attempted to legalize the right of property in man, in any of the thirteen North American colonies. It is doubtful whether they ever attempted to do it anywhere else. It is also doubtful whether Parliament had the power or perhaps rather it is certain that they had not the power to legalize it anywhere, if they had attempted to do so.fn7 And the cautious and curious phraseology of their statutes on the subject, indicates plainly that they themselves either doubted their power to legalize it, or feared to exercise it. They have therefore chosen to connive at slavery, to insinuate, intimate, and imply their approbation of it, rather than risk an affirmative enactment declaring that one man may be the property of another. But Lord Mansfield said, in Somerset's case, that slavery was "so odious that nothing can be suffered to support it, but positive law." No such positive law (I Presume) was ever passed by Parliament certainly not with reference to any of these thirteen colonies.
The statute of 1788, (which I have not seen,) in regard to the slave trade, may perhaps have relieved those engaged in it, in certain cases, from their liability to be punished criminally for the act. But there is a great difference between a statute, that should merely screen a person from punishment for a crime, and one that should legalize his right to property acquired by the crime. Besides, this act was passed after the separation between America and England, and therefore could have done nothing towards legalizing slavery in the United States, even if it had legalized it in the English dominions.
The statutes of 1750, (23, George 2d, Ch. 31,) may have possibly authorized, by implication, (so far as Parliament could thus authorize,) the colonial governments, (if governments they' could be called,) on the coast of Africa, to allow slavery under [*25] certain circumstances, and within the "settlements" on that coast. But, if it did, it was at most a grant of a merely local authority. It gave no authority to carry slaves from the African coast. But even if it had purported distinctly to authorize the slave trade from Africa to America, and to legalize the right of property in the particular slaves thereafter brought from Africa to America, it would nevertheless have done nothing towards legalizing the right of property in the slaves that had been brought to, and born in, the colonies for an hundred and thirty years previous to the statute. Neither the statute, nor any right of property acquired under it, (in the individual slaves there afterwards brought from Africa,) would therefore avail anything for the legality of slavery in this country now; because the descendants of those brought from Africa under the act, cannot now be distinguished from the descendants of those who had, for the hundred and thirty years previous, been held in bondage without law.
But the presumption is, that, even after this statute was passed in 1750, if the slave trader's right of property in the slave he was bringing to America, could have been brought before an English court for adjudication, the same principles would have been held to apply to it, as would have applied to a case arising within the island of Great Britain. And it must therefore always have been held by English courts, (in consistency with the decisions in Somerset's case,) that the slave trader had no legal ownership of his slave. And if the slave trader had no legal right of property in his slave, he could transfer no legal right of property to a purchaser in the colonies. Consequently the slavery of those that were brought into the colonies after the statute of 1750 was equally illegal with that of those who had been brought in before. [*26]
The conclusion of the whole matter is, that until some reason appears against them, we are bound by the decision of the King's [*27] Bench in 1772, and the colonial charters. That decision declared that there was, at that time, in England, no right of property in [*28] man, (notwithstanding the English government had for a long time connived at the slave trade.) The colonial charters required [*29] the legislation of the colonies to be "consonant to reason, and not repugnant or contrary, but conformable, or agreeable, as nearly as [*30] circumstances would allow, to the laws, statutes and rights of the realm of England." That decision, then, if correct, settled the [*31] law both for England and the colonies. And if so, there was no constitutional slavery in the colonies up to the time of the revolution
CHAPTER IV.
COLONIAL STATUTES.
But the colonial legislation on the subject of slavery, was not only void as being forbidden by the colonial charters, but in many of the colonies it was void for another reason, viz., that it did not sufficiently define the persons who might be made slaves.
Slavery, if it can be legalized at all, can he legalized only by positive legislation. Natural law gives it no aid. Custom imparts to it no legal sanction. This was the doctrine of the King's Bench in Somerset's case, as it is the doctrine of common sense. Lord Mansfield said, "So high an act of dominion must be recognized by the law of the country where it is used. * * * The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from the memory. It is so odious that nothing can be suffered to support it but positive law."
Slavery, then, being the creature of positive legislation alone, can be created only by legislation that shall so particularly describe the persons to be made slaves, that they may be distinguished from all others. If there be any doubt left by the letter of the law, as to the persons to be made slaves, the efficacy of all other slave legislation is defeated simply by that uncertainty.
In several of the colonies, including some of those where slaves were most numerous, there were either no laws at all defining the persons who might be made slaves, or the laws, which attempted to define them, were so loosely framed that it cannot now be known who are the descendants of those designated as slaves, and who of those held in slavery without any color of law. As the presumption must under the United States constitution and indeed under the state constitutions also be always in favor of liberty, it would probably now be impossible for a slaveholder to prove, in one case in an hundred, that his slave was descended, (through the maternal line, according to the slave code,) from any one who was originally a slave within the description given by the statutes. [*33]
When slavery was first introduced into the country, there were no laws at all on the subject. Men bought slaves of the slave traders, as they would have bought horses; and held them, and compelled them to labor, as they would have done horses, that is, by brute force. By common consent among the white race, this practice was tolerated without any law. At length slaves had in this way become so numerous, that some regulations became necessary, and the colonial governments began to pass statutes, which assumed the existence of slaves, although no laws defining the persons who might be made slaves, had ever been enacted. For instance, they passed statutes for the summary trial and punishment of slaves; statutes permitting the masters to chastise and baptize their slaves,fn9 and providing that baptism should not be considered, in law, an emancipation of them. Yet all the while no act had been passed declaring who might be slaves. Possession was apparently all the evidence that public sentiment [*34] demanded, of a master's property in his slave. Under such a code, multitudes, who had either never been purchased as slaves, or who had once been emancipated, were doubtless seized and reduced to servitude by individual rapacity, without any more public cognizance of the act, than if the person so seized had been a stray sheep.
Virginia. Incredible as it may seem, slavery had existed in Virginia fifty years before even a statute was passed for the purpose of declaring who might be slaves; and then the persons were so described as to make the designation of no legal effect, at least as against Africans generally. And it was not until seventyeight years more, (an hundred and twentyeight years in all,) that any act was passed that would cover the case of the Africans generally, and make them slaves. Slavery was introduced in 1620, but no act was passed even purporting to declare who might be slaves, until 1670. In that year a statute was passed in these words: "That all servants, not being Christians, imported into this country by shipping, shall be slaves for their lives." fn10
This word "servants" of course legally describes individuals known as such to the laws, and distinguished as such from other persons generally. But no class of Africans "imported," were known as "servants," as distinguished from Africans generally, or in any manner to bring them within the legal description of "servants," as here used. In 1682 and in 1705 acts were again passed declaring "thatall servants," &c., imported, should be slaves. And it was not until 1748, after slavery had existed an hundred and twentyeight years, that this description was changed for the following:
"That all persons, who have been or shall be imported into this colony," &c., &c., shall be slaves.
In 1776, the only statute in Virginia, under which the slaveholders could make any claim at all to their slaves, was passed as late as 1753, (one hundred and thirtythree years after slavery had been introduced ;) all prior acts having been then repealed, without saving the rights acquired under them. [*35]
Even if the colonial charters had contained no express prohibition upon slave laws, it would nevertheless be absurd to pretend that the colonial legislature had power, in 1753, to look back an hundred and thirtythree years, and arbitrarily reduce to slavery all colored persons that had been imported into, or born in the colony within that time. If they could not do this, then it follows that all the colored persons in Virginia, up to 1753, (only twentythree years before the revolution,) and all their descendants to the present time, were and are free; and they cannot now be distinguished from the descendants of those subsequently imported. Under the presumption furnished by the constitution of the United States that alt are free, few or no exceptions could now be proved.
In North Carolina no general law at all was passed, prior to the revolution, declaring who might be slaves (See Iredell's statutes, revised by Martin.)
In South Carolina, the only statutes, prior to the revolution, that attempted to designate the slaves was passed in 1740 after slavery had for a long time existed. And even this statute, in reality, defined nothing; for the whole purport of it was, to declare that all negroes, Indians, mulattoes and mestizoes, except those who were then free, should be slaves. Inasmuch as no prior statute had ever been passed, declaring who should be slaves, all were legally free; and therefore all came within the exception in favor of free persons. [*36]
The same law, in nearly the same words, was passed in Georgia, in 1770.
These were the only general statutes, under which slaves were held in those four States, (Virginia, North Carolina, South Carolina and Georgia,) at the time of the revolution. They would all, for the reasons given, have amounted to nothing, as a foundation for the slavery now existing in those states, even if they had not been specially prohibited by their charters.
CHAPTER V.
THE DECLARATION OF INDEPENDENCE.
Admitting, for the sake of the argument, that prior to the revolution, slavery had a constitutional existence, (so far as it is possible that crime can have such an existence,) was it not abolished by the declaration of independence?
The declaration was certainly the constitutional law of this country for certain purposes. For example, it absolved the people from their allegiance to the English crown. It would have been so declared by the judicial tribunals of this country, if an American, during the revolutionary war, or since, had been tried for treason to the crown. If, then, the declaration were the constitutional law of the country for that purpose, was it not also constitutional law for the purpose of recognizing and establishing, as law, the natural and inalienable right of individuals to life, liberty, and the pursuit of happiness? The lawfulness of the act of absolving [*37] themselves from their allegiance to the crown, was avowed by the people of the country and that too in the same instrument that declared the absolution to rest entirely upon, and to be only a consequence of the natural right of all men to life, liberty, and the pursuit of happiness. If, then, the act of absolution was lawful, does it not necessarily follow that the principles that legalized the act, were also law? And if the country ratified the act of absolution, did they not also necessarily ratify and acknowledge the principles which they declared legalized the act?
It is sufficient for our purpose, if it be admitted that this principle was the law of the country at that particular time, (1776) even though it had continued to be the law for only a year, or even a day. For if it were the law of the country even for a day, it freed every slave in the country (if there were, as we say there were not, any legal slaves then in the country.) And the burden would then be upon the slaveholder to show that slavery had since been constitutionally established. And to show this, he must show an express constitutional designation of the particular individuals, who have since been made slaves. Without such particular designation of the individuals to be made slaves, (and not even the present constitutions of the slave States make any such designation,) all constitutional provisions, purporting to authorize slavery, are indefinite, and uncertain in their application, and for that reason void.
But again. The people of this country in the very instrument by which they first announced their independent political existence, and first asserted their right to establish governments of their own m declared that the natural and inalienable right of all men to life, liberty, and the pursuit of happiness, was a "self-evident truth."
Now, all "selfevident truths," except such as may be explicitly, or by necessary implication, denied, (and no government has a right to deny any of them,) enter into, are taken for granted by, and constitute an essential part of all constitutions, compacts, and systems of government whatsoever. Otherwise it would be impossible for any systematic government to be established; for it must obviously be impossible to make an actual enumeration of all the "selfevident truths," that are to be taken into account in the administration of such a government. This is more especially true of governments founded, like ours, upon contract. It is clearly impossible, in a contract of government, to enumerate all [*38] the "selfevident truths" which must be acted upon in the administration of law. And therefore they are all taken for granted unless particular ones be plainly denied.
This principle, that all "selfevident truths," though not enumerated, make a part of all laws and contracts, unless clearly denied, is not only indispensable to the very existence of civil society, but it is even indispensable to the administration of justice in every individual case or suit, that may arise, out of contract or otherwise, between individuals. It would be impossible for individuals to make contracts at all, if it were necessary for them to enumerate all the "selfevident truths," that might have a bearing upon their construction before a judicial tribunal. All such truths are therefore taken for granted. And it is the same in all compacts of government, unless particular truths are plainly denied. And governments, no more than individuals, have a right to deny them in any case. To deny, in any case, that "selfevident truths" are a part of the law, is equivalent to asserting that "selfevident falsehood" is law.
If, then, it be a "selfevident truth," that all men have a natural and inalienable right to life, liberty, and the pursuit of happiness, that truth constitutes a part of all our laws and all our constitutions, unless it have been unequivocally and authoritatively denied.
It will hereafter be shown that this "selfevident truth" has never been denied by the people of this country, in their fundamental constitution, or in any other explicit or authoritative man. net. On the contrary, it has been reiterated, by them, annually, daily and hourly, for the last sixtynine years, in almost every possible way, and in the most solemn possible manner. On the 4th of July, '76, they collectively asserted it, as their justification and authority for an act the most momentous and responsible of any in the history of the country. And this assertion has never been retracted by us as a people. We have virtually reasserted the same truth in nearly every state constitution since adopted. We have virtually reasserted it in the national constitution. It is a truth that lives on the tongues and in the hearts of all. It is true we have, in our practice, been so unjust as to withhold the benefits of this truth from a certain class of our fellowmen. But even in this respect, this truth has but shared the common fate of other truths. They are generally allowed but a partial application. Still, this truth itself, as a truth, has never been denied by us, as a people, in any authentic form, or otherwise than impliedly [*39] by our practice in particular cases. If it have, say when and where. If it have not, it is still law; and courts are bound to administer it, as law, impartially to all.
Our courts would want no other authority than this truth, thus acknowledged, for setting at liberty any individual, other than one having negro blood, whom our governments, state or national, should assume to authorize another individual to enslave. Why then, do they not apply the same law in behalf of the African? Certainly not because it is not as much the law of his case, as of others. But it is simply because they will not. It is because the courts are parties to an understanding, prevailing among the white race, but expressed in no authentic constitutional form, that the negro may be deprived of his rights at the pleasure of avarice and power. And they carry out this unexpressed understanding in defiance of, and suffer it to prevail over, all our constitutional principles of government all our authentic, avowed, open and fundamental law.
CHAPTER VI.
THE STATE CONSTITUTIONS OF 1789.
Of all the state constitutions, that were in force at the adoption of the constitution of the United States, in 1789, not one of them established, or recognized slavery.
All those parts of the state constitutions, (i. e. of the old thirteen states,) that recognize and attempt to sanction slavery, have been inserted, by amendments, since the adoption of the constitution of the United States.
All the states, except Rhode Island and Connecticut, formed constitutions prior to 1789. Those two states went on, beyond this period, under their old charters. fn14 [*40]
The eleven constitutions formed, were all democratic in the general character. The most of them eminently so. They generally recognized, in some form or other, the natural rights of men, as one of the fundamental principles of the government. Several of them asserted these rights in the most emphatic and authoritative manner. Most or all of them had also specific provisions incompatible with slavery. Not one of them had any specific recognition of the existence of slavery. Not one of them granted any specific authority for its continuance.
The only provisions or words in any of them, that could be claimed by anybody as recognitions of slavery, are the following, viz.:
1. The use of the words "our negroes" in the preamble to the constitution of Virginia.
2. The mention of "slaves" in the preamble to the constitution of Pennsylvania.
3. The provisions, in some of the constitutions, for continuing in force the laws that had previously been "in force" in the colonies, except when altered by, or incompatible with the new constitution.
4. The use, in several of the constitutions, of the words "free" and "freemen."
As each of these terms and clauses may be claimed by some persons as recognitions of slavery, they are worthy of particular notice.
1. The preamble to the frame of government of the constitution of Virginia speaks of negroes in this connexion, to wit: It charges George the Third, among other things, with "prompting our negroes to rise in arms among us, those very negroes, whom, by an inhuman use of his negative, he hath refused us permission to exclude by law."
Here is no assertion that these "negroes" were slaves; but only that they were a class of people whom the Virginians did not wish to have in the state, in any capacity whom they wished "to exclude by law." The language, considered us legal language, no more implies that they were slaves, than the charge of having prompted "our women, children, farmers, mechanics, or our people with red hair, or our people with blue eyes, or our Dutchmen, or our Irishmen to rise in arms among us," would have implied that those portions of the people of Virginia were slaves. And especially when it is considered that slavery had had no prior [*41] legal existence, this reference to "negroes" authorizes no legal inference whatever in regard to slavery.
The rest of the Virginia constitution is eminently democratic. The bill of rights declares "that all men are by nature equally free and independent, and have certain inherent rights," * * * "namely, the enjoyment of life and liberty, with the means of Acquiring and possessing property, and pursuing and obtaining happiness and safety."
2. The preamble to the Pennsylvania constitution used the word "slaves" in this connexion. It recited that the king of Great Britain had employed against the inhabitants of that commonwealth, "foreign mercenaries, savages and slaves."
This is no acknowledgment that they themselves had any slaves of their own; much less that they were going to continue theft slavery; for the constitution contained provisions plainly incompatible with that. Such, for instance, is the following, which constitutes the first article of the "Declaration of Rights of the Inhabitants," (i. e. of all the inhabitants) "of the state of Pennsylvania."
"1. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, among which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety." The 46th section of the frame of government is in these words.
"The Declaration of Rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever."
Slavery was clearly impossible under these two constitutional provisions, to say nothing of others.
3. Several of the constitutions provide that all the laws of the colonies, previously "in force" should continue in force until repealed, unless repugnant to some of the principles of the constitutions themselves.
Maryland, New York, New Jersey, South Carolina, and perhaps one or two others had provisions of this character. North Carolina had none, Georgia none, Virginia none. The slave laws of these three latter states, then, necessarily fell to the ground on this change of government.
Maryland, New York, New Jersey and South Carolina had acts upon their statute books, assuming the existence of slavery, and [*42] pretending to legislate in regard to it; and it may perhaps be argued that those laws were continued in force under the provision referred to. But those acts do not come within the above description of "laws in force" and for this reason, viz., the acts were originally unconstitutional and void, as being against the charters, under which they were passed; and therefore never had been legally "in force," however they might have been actually carried into execution as a matter of might, or of pretended law, by the white race.
This objection applies to the slave acts of all the colonies None of them could be continued under this provision. None of them, legally speaking, were "laws in force."
But in particular states there were still other reasons against the colonial slave acts being valid under the new constitutions. For instance: South Carolina had no statute (as has before been mentioned) that designated her slaves with such particularity as to distinguish them from free persons; and for that reason none of her slave statutes were legally "in force."
New Jersey also was in the same situation. She had slave statutes; but none designating the slaves so as to distinguish them from the rest of her population. She had also one or more specific provisions in her constitution incompatible with slavery, to wit: "That the common law of England * * * shall remain in force, until altered by a future law of the legislature; such parts only as are repugnant to the rights and privileges contained in this charter." (Sec. 22.)
Maryland had also, in her new constitution, a specific provision incompatible with the acts on her colonial statute book in regard to slavery, to wit:
"Sec. 3. That the inhabitants" mark the word, for it includes all the inhabitants "that the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law," &c.
This guaranty, of "the common law of England" to all "the inhabitants of Maryland," without discrimination, is incompatible with any slave acts that existed on the statute book; and the latter would therefore have become void under the constitution, even if they had not been previously void under the colonial charter.
4. Several of these state constitutions have used the words free" and "freemen." For instance: That of South Carolina provided, (Sec. 13.) [*43] that the electors of that state should be "free white men." That of Georgia (Art. 11,) and that of North Carolina (Art. 40,) use the term "free citizen." That of Pennsylvania (Se:. 42,) has the term "free denizen."
These four instances are the only ones I have found in all the eleven constitutions, where any class of persons are designated by the term "free." And it will be seen hereafter, from the connexion and manner in which the word is used, in these four cases, that it implies no recognition of slavery.
Several of the constitutions, to wit, those of Georgia, South Carolina, North Carolina, Maryland, Delaware, Pennsylvania, New York but not Virginia, New Jersey, Massachusetts or New Hampshire repeatedly use the word "freeman" or "freemen," when describing the electors, or other members of the state.
The only questions that can arise from the use of these words "free" and" freeman," are these, viz.: Are they used as the correlatives, or opposites of slaves? Or are they used in that political sense, in which they are used in the common law of England, and in which they had been used in the colonial charters, viz., to describe those persons possessed of the privilege of citizenship, or some corporate franchise, as distinguished from aliens, and those not enjoying franchises, although free from personal slavery?
If it be answered, that they are used in the sense first mentioned, to wit, as the correlatives or opposites of slavery then it would be argued that they involved a recognition, at least, of the existence of slavery.
But this argument whatever it might be worth to support an implied admission of the actual existence of slavery would be entirely insufficient to support an implied admission either of its legal, or its continued existence. Slavery is so entirely contrary to natural right; so entirely destitute of authority from natural law; so palpably inconsistent with all the legitimate objects of government, that nothing but express and explicit provision can be recognized, in law, as giving it any sanction. No hints, insinuations, or unnecessary implications can give any ground for any so glaring a departure from, and violation of all the other, the general and the legitimate principles of the government. If, then, it were admitted that the words "free" and "freemen" were used as the correlatives of slaves, still, of themselves, the words would give no direct or sufficient authority for laws establishing or continuing slavery. To call one man free, gives no legal authority for mak- [*44] ing another man a slave. And if, as in the case of these constitutions, no express authority for slavery were given, slavery would be as much unconstitutional as though these words had not been used. The use of these words in that sense, in a constitution, under which all persons are presumed to be free, would involve no absurdity, although it might be gratuitous and unnecessary.
It is a rule of law, in the construction of all statutes, contracts and legal instruments whatsoever that is, those which courts design, not to invalidate, but to enforce that where words are susceptible of two meanings, one consistent, and the other inconsistent, with liberty, justice and right, that sense is always to be adopted, which is consistent with right, unless there be something in other parts of the instrument sufficient to prove that the other is the true meaning. In the case of no one of all these early state constitutions, is there anything in the other parts of them, to show that these words "free" and "freemen" are used as the correlatives of slavery. The rule of law, therefore, is imperative, that they must be regarded in the sense consistent with liberty and right.
If this rule, that requires courts to give an innocent construction to all words that are susceptible of it, were not imperative, courts might, at their own pleasure, pervert the honest meaning of the most honest statutes and contracts, into something dishonest, for there are almost always words used in the most honest legislation, and in the most honest contracts, that, by implication or otherwise, are capable of conveying more than one meaning, and even a dishonest meaning. If courts could lawfully depart from the rule, that requires them to attribute an honest meaning to all language that is susceptible of such a meaning, it would be nearly impossible to frame either a statute or a contract, which the judiciary might not lawfully pervert to some purpose of injustice. There would obviously be no security for the honest administration of any honest law or contract whatsoever.
This rule applies as well to constitutions as to contracts and statutes; for constitutions are but contracts between the people, whereby they grant authority to, and establish law for the government.
What other meaning, then, than as correlatives of slavery, are the words "free" and "freemen" susceptible of, as they are used in the early state constitutions?
Among the definitions given by Noah Webster are these: [*45]
"Freeman. One who enjoys, or is entitled to a franchise or peculiar privilege; as the freemen of a city or state."
"Free. Invested with franchises; enjoying certain immunities; with of as a man free of the city of London."
"Possessing without vassalage, or slavish conditions; as a man free of his farm."
In England, and in the English law throughout, as it existed before and since the emigration of our ancestors to this country, the words "free" and "freemen" were political terms in the most common use; and employed to designate persons enjoying some franchise or privilege, from the most important one of general citizenship in the nation, to the most insignificant one in any incorporated city, town or company. For instance: A man was said to be a "free British subject" meaning thereby that he was a naturalized or native born citizen of the British government, as distinguished from an alien, or person neither naturalized nor native born.
Again. A man was said to be "free of a particular trade in the city of London" meaning thereby, that by the byelaws of the city of London, he was permitted to follow that trade a privilege which others could not have without having served an apprenticeship in the city, or having purchased the privilege of the city government.
The terms "free" and "freemen" were used with reference to a great variety of privileges, which, in England, were granted to one man, and not to another. Thus members of incorporated companies were called "freemen of the company," or "free members of the company ;" and were said to be "free of the said company." The citizens of an incorporated city were called "the freemen of the city," as "freemen of the city of London."
In Jacobs' Law Dictionary the following definitions, among others, are given of the word "freeman."
"Freeman liber homo." * * "In the distinction of a freeman from a vassal under the feudal policy, liber homo was commonly opposed to vassus, or vassalus; the former denoting an allodial proprietor; the latter one who held of a superior."
"The title of a freeman is also given to any one admitted to the freedom of a corporate town, or of any other corporate body, consisting, among other members, of those called freemen."
"There are three ways to be a freeman of London; by servitude of an apprenticeship; by birthright, as being the son of a [*46] freeman; and by redemption, i. e. by purchase, under an order of the court of aldermen."
"The customs of the city of London shall be tried by the certificate of the Mayor and Aldermen, * * * as the custom of distributing the effects of freemen deceased: of enrolling apprentices, or that he who is free of one trade may use another."
"Elections of aldermen and commoncouncilmen are to be by freemen householders."
"An agreement on marriage, that the husband shall take up the freedom of London, binds the distribution of the effects."
The foregoing and other illustrations of the use of the words "free" and "freemen," may be found in Jacob's Law Dictionary, under the head of Freeman, London, &c.
And this use of these words has been common in the English laws for centuries. The term "freeman" is used in Magna Charta, (1215). The English statutes abound with the terms, in reference to almost every franchise or peculiar privilege, from the highest to the lowest, known to the English laws. It would be perfectly proper, and in consonance with the legal meaning and common understanding of the term, to say of Victoria, that "she is free of the throne of England," and of a cobbler, that he "is free of his trade in the city of London."
But the more common and important signification of the words is to designate the citizens, native or naturalized, and those specifically entitled, as a matter of political and acknowledged right, to participate in, or be protected by the government, as distinguished from aliens, or persons attainted, or deprived of their political privileges as members of the state. Thus they use the term "free British subject" "freeman of the realm," &c. In short, the terms, when used in political papers, have a meaning very nearly, if not entirely synonymous, with that which we, in this country, now give to the word citizen.
But throughout the English law, and among all the variety of ways, in which the words "free" and "freemen" are used, as legal terms, they are never used as the correlatives, or opposites of slaves or slavery and for the reason that they have in England no such persons or institutions, known to their laws, as slaves or slavery. The use of the words "free "and" freemen," therefore, do not in England at all imply the existence of slaves or slavery.
This use of the words "free" and "freemen," which is common to the English law, was introduced into this country at its first set [*47] tlement, in all, or very nearly all the colonial charters, patents, &c., and continued in use, in this sense, until the time of the revolution; and, of course, until the adoption of the first state constitutions.
The persons and companies, to whom the colonial charters were granted, and those who were afterwards to be admitted as their associates, were described as "freemen of said colony," "freemen of said province," "freemen of said company," "free. men of the said company and body politick," &c. (See charter of Rhode Island.)
Many, if not all the charters had a provision similar in substance to the following in the charter to Rhode Island, viz.:
"That all and every the subjects of us, our heirs and successors," (i. e. of the king of England granting the charter,) "which are already planted and settled within our said colony of Providence Plantations, or which shall hereafter go to inhabit within the said colony, and all and every of their children which have been born there, or which shall happen hereafter to be born there, or on the sea going thither, or returning from thence, shall have and enjoy all liberties and immunities of free and natural subjects, within any of the dominions of us, our heirs and successors, to all intents, constructions and purposes whatsoever, as if they and every of them were born within the realm of England."
The following enactment of William Penn, as proprietary and Governor of the Province of Pennsylvania and its territories, illustrates one of the common uses of the word "freeman," as known to the English law, and as used in this country prior to the revolution that is, as distinguishing a native born citizen, and one capable of holding real estate, &c., from a foreigner, not naturalized, and on that account subject to certain disabilities, such as being incompetent to hold real estate.
"And forasmuch as it is apparent that the just encouragement of the inhabitants of the province, and territories thereunto belonging, is likely to be an effectual way for the improvement thereof; and since some of the people that live therein and are likely to come thereunto, are foreigners, and so not freemen, according to the acceptation of the laws of England, the consequences of which may prove very detrimental to them in their estates and traffic [*48] and so injurious to the prosperity of this province and territories thereof. Be it enacted, by the proprietary and governor of the province and counties aforesaid, by and with the advice and consent of the deputies of the freemen thereof, in assembly met, That all persons who are strangers and foreigners, that do now inhabit this province and counties aforesaid, that hold land in fee in the same, according to the law of a freeman, and who shall solemnly promise, within three months after the publication thereof, in their respective county courts where they live, upon record, faith and allegiance to the king of England and his heirs and successors, and fidelity and lawful obedience to the said William Penn, proprietary and governor of the said province and territories, and his heirs and assigns, according to the king's letters patents and deed aforesaid, shall be held and reputed freemen of the province and counties aforesaid, in as ample and full a manner as any person residing therein. And it is hereby further enacted, by the authority aforesaid, That when at any time any person, that is a foreigner, shall make his request to the proprietary and governor of this province and territories thereof, for the aforesaid freedom, the said person shall be admitted on the conditions herein expressed, paying at his admission twenty shillings sterling, and no more, anything in this law, or any other law, act, or thing in this province, to the contrary in any wise notwithstanding."
"Given at Chester," &c., "under the hand and broad seal of William Penn, proprietary and governor of this province and territories thereunto belonging, in the second year of his govern merit, by the king's authority. W. PENN." fn16
Up to the time of our revolution, the only meaning which the words "free" and "freemen" had, in the English law, in the charters granted to the colonies, and in the important documents of a political character, when used to designate one person as distinguished from another, was to designate a person enjoying some franchise or privilege, as distinguished from aliens or persons not enjoying a similar franchise. They were never used to designate a free person as distinguished from a slave for the very sufficient reason that all these fundamental laws presumed that there were no slaves.
Was such the meaning of the words "free" and "freemen," as used in the constitutions adopted prior to 1789, in the States of Georgia, North and South Carolina, Maryland, Delaware and New York?
The legal rule of interpretation before mentioned, viz., that an innocent meaning must be given to all words that are susceptible [*49] of it would compel us to give the words this meaning, instead of a meaning merely correlative with slavery, even if we had no other ground than the rule alone, for so doing. But we have other grounds. For instance: Several of these constitutions have themselves explicitly given to the words this meaning. While not one of them has given them a meaning correlative with slaves, inasmuch as none of them purport either to establish, authorize, or even to know of the existence of slavery.
The constitution of Georgia (adopted in 1777)evidently uses the word "free" in this sense, in the following article:
"Art. 11. No person shall be entitled to more than one vote, which shall be given in the county where such person resides, except as before excepted; nor shall any person who holds any title of nobility, be entitled to a vote, or be capable of serving as a representative, or hold any post of honor, profit or trust, in this State, while such person claims his title of nobility; but if the person shall give up such distinction, in the manner as may be directed by any future legislature, then, and in such case, he shall be entitled to a vote, and represent, as before directed, and enjoy all the other benefits of a FREE citizen."
The constitution of North Carolina, (adopted in 1776,) used the word in a similar sense, as follows:
"40. That every foreigner, who comes to settle in this State, having first taken ah oath of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate, and after one year's residence be deemed a FREE citizen."
This constitution also repeatedly uses the word "freeman;" meaning thereby "a free citizen," as thus defined.
The Constitution of Pennsylvania, (adopted in 1776,) uses the word in the same sense:
"Sec. 42. Every foreigner, of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold and transfer land or other real estate; and after one year's residence, shall be deemed a FREE denizen thereof, and entitled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two years' residence."
The constitution of New York, (adopted in 1777,) uses the word m the same manner: [*50]
"Sec. 6. That every male inhabitant of full age, who has personally resided in one of the counties of this State for six months, immediately preceding the day of election, shall at such election be entitled to vote for representatives of the said county in assembly, if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds, within the said county, or have rented a tenement therein of the yearly value of forty shilling, and been rated and actually paid taxes to the State. Provided always, That every person who now is a freeman of the city of Albany, or who was made a freeman of the city of New York, on or before the fourteenth day of October, in the year of our Lord one thousand seven hundred and seventyfive, and shall be actually and usually resident in the said cities respectively, shall be entitled to vote for representatives in assembly within his place of residence."
The constitution of South Carolina, (formed in 1778) uses the word "free" in a sense which may, at first thought, be supposed to be different from that in which it is used in the preceding cases:
Sec. 13. The qualification of electors shall be that "every free white man, and no other person," &c., "shall be deemed a person qualified to vote for, and shall be capable of being elected a representative."
It may be supposed that here the word "free" is used as the correlative of slavery; that it presumes the "whites" to be "free;" and that it therefore implies that other persons than "white" may be slaves. Not so. No other parts of the constitution authorize such an inference; and the implication from the words themselves clearly is, that some "white" persons might not be "free." The distinction implied is between those "white" persons that were "free," and those that were not "free." If this were not the distinction intended, and if all "white" persons were "free," it would have been sufficient to have designated the electors simply as "white" persons, instead of designating them as both "free" and "white." If, therefore, it were admitted that the word" free," in this instance, were used as the correlative of slaves, the implication would be that some "white" persons were, or might be slaves. There is, therefore, no alternative but to give the word "free," in this instance, the same meaning that it has in the constitutions of Georgia, North Carolina and Pennsylvania.
In 1704 South Carolina passed an act entitled, "An act for making aliens FREE of this part of the Province." This statute [*51] remained in force until 1784, when it was repealed by an act entitled "An act to confer the right of citizenship on aliens." fn17
One more example of this use of the word "freeman." The constitution of Connecticut, adopted as late as 1818, has this provision:
"Art. 6, Sec. 1. All persons who have been, or shall hereafter, previous to the ratification of this constitution, be admitted freemen, according to the existing laws of this State, shall be electors."
Surely no other proof can be necessary of the meaning of the words "free" and "freeman," as used in the constitutions existing in 1789; or that the use of those words furnish no implication in support of either the existence, or the constitutionality of slavery, prior to the adoption of the constitution of the United States in that year.
I have found, in none of the State constitutions before mentioned, (existing in 1789,) any other evidence or intimation of the existence of slavery, than that already commented upon and refuted. And if there be no other, then it is clear that slavery had no legal existence under them. And there was consequently no constitutional slavery in the country up to the adoption of the constitution of the United States.
CHAPTER VII
THE ARTICLES OF CONFEDERATION.
The Articles of Confederation, (formed in 1778,) contained no recognition of slavery. The only words in them, that could be claimed by anybody as recognizing slavery, are the following, in Art. 4, Sec. 1.
"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and redress to and from any other State, and shall enjoy therein all the privileges of [*52] trade and commerce, subject to the same duties impositions and restrictions, as the inhabitants thereof respectively."
There are several reasons why this provision contains no legal recognition of slavery.
1. The true meaning of the word "free," as used in the English law, in the colonial charters, and in the State constitutions up to this time, when applied to persons, was to describe citizens, or persons possessed of franchises, as distinguished from aliens or persons riot possessed of the same franchises. Usage, then, would give this meaning to the word "free" in this section.
2. The rules of law require that an innocent meaning should be given to all words that will bear an innocent meaning.
3. The Confederation was a league between States in their corporate capacity; and not, like the constitution, a government established by the people in their individual character. The Confederation, then, being a league between states or corporations, as such, of course recognized nothing in the character of the State governments except what their corporate charters or State constitutions authorized. And as none of the State constitutions of the day recognized slavery, the confederation of the State governments could not of course recognize it. Certainly none of its language can, consistently with legal rules, have such a meaning given to it, when it is susceptible of another that perfectly accords with the sense in which it is used in the constitutions of the States, that were parties to the league.
4. No other meaning can be given to the word "free" in this case, without making the sentence an absurd, or, at least, a foolish and inconsistent one. For instance, The word "free" is joined to the word "citizen." What reason could there be in applying the term "free" to the word "citizen," if the word "free" were used as the correlative of slavery? Such an use of the word would imply that some of the "citizens" were, or might be slaves which would be an absurdity. But used in the other sense, it implies only that some citizens had franchises not enjoyed by others; such, perhaps, as the right of suffrage, and the right of being elected to office; which franchises were only enjoyed by a part of the "citizens." All who were born of English parents, for instance, were "citizens," and entitled to the protection of the government, and freedom of trade and occupation, &c., &c., and in these respects were distinguished from aliens. Yet a property qualification was necessary, in some, if not all the States, to en- [*53] title even such to the franchises of suffrage, and of eligibility to office.
The terms "free inhabitants" and "people" were probably used as synonymous either with "free citizens," or with "citizens" not "free" that is, nor possessing the franchises of suffrage and eligibility to office.
Mr. Madison, in the 42d No. of the Federalist, in commenting upon the power given to the general government by the new constitution, of naturalizing aliens, refers to this clause in the Articles of Confederation; and takes it for granted that the word "free" was used in that political sense, in which I have supposed it to be used that is, as distinguishing" citizens" and the "inhabitants" or "people" proper, from aliens and persons not allowed the franchises enjoyed by the "inhabitants" and "people" of the States. Even the privilege of residence he assumes to be a franchise entitling one to the denomination of "free."
He says: "The dissimilarity in the rules of naturalization," (i.e. in the rules established by the separate States, for under the confederation each State established its own rules of naturalization,) "has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of confederation, it is declared, 'that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce,' &c. There is a confusion of language here, which is remarkable. Why the terms free inhabitants are used in one part of the article, free citizens in another, and people in another; or what was meant by superadding to 'all privileges and immunities of free citizens,' 'all the privileges of trade and commerce,' cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is to greater privileges than they may be entitled to in their own State; so that it may be in the power of a particular State, or rather every State is laid under the necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term 'inhabitant' to be admitted, which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every [*54] other State. In one State, residence for a short time confers all the rights of citizenship; in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity, and thus the law of one State be preposterously rendered paramount to the laws of another, within the jurisdiction of the other.
"We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent, not only with the rights of citizenship, but with the privileges of residence. What would have been the consequence, if such persons, by residence, or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted of too serious a nature, not to be provided against. The new constitution has, accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the confederation on this head, by authorizing the general government to establish an uniform rule of naturalization throughout the United States."
Throughout this whole quotation Mr. Madison obviously takes it for granted that the word "free" is used in the articles of confederation, as the correlative of aliens. And in this respect he no doubt correctly represents the meaning then given to the word by the people of the United States. And in the closing sentence of the quotation, he virtually asserts that such is the meaning of the word "free" in "the new constitution."
CHAPTER VIII.
THE CONSTITUTION OF THE UNITED STATES.
We come now to the period commencing with the adoption of the constitution of the United States.
We have already seen that slavery had not been authorized or established by any of the fundamental constitutions or charters that had existed previous to this time; that it had always been a mere abuse sustained by the common consent of the strongest party, in defiance ct the avowed constitutional principle of their [*55] governments. And the question now is, whether it was constitutionally established, authorized or sanctioned by the constitution of the United States?
It is perfectly clear, in the first place, that the constitution of the United States did not, of itself, create or establish slavery as a new institution; or even give any authority to the state governments to establish it as a new institution. The greatest sticklers for slavery do not claim this. The most they claim is, that it recognized it as an institution already legally existing, under the authority of the State governments; and that it virtually guarantied to the States the right of continuing it in existence during their pleasure. And this is really the only question arising out of the constitution of the United States on this subject, viz., whether it did thus recognize and sanction slavery as an existing institution?
This question is, in reality, answered in the negative by what has already been shown; for if slavery had no constitutional existence, under the State constitutions, prior to the adoption of the constitution of the United States, then it is absolutely certain that the constitution of the United States did not recognize it as a constitutional institution; for it cannot, of course, be pretended that the United States constitution recognized, as constitutional, any State institution that did not constitutionally exist.
Even if the constitution of the United States had intended to recognize slavery, as a constitutional State institution, such intended recognition would have failed of effect, and been legally void, because slavery then had no constitutional existence to be recognized.
Suppose, for an illustration of this principle, that the constitution of the United States had, by implication, plainly taken it for granted that the State legislatures had power derived from the State constitutions to order arbitrarily that infant children, or that men without the charge of crime, should be maimeddeprived, for instance, of a hand, a foot, or an eye. This intended recognition, on the part of the constitution of the United States, of the legality of such a practice, would obviously have failed of all legal effect would have been mere surplus age if it should appear, from an examination of the State constitutions themselves, that they had really conferred no such power upon the legislatures. And this principle applies with the same force to laws that would arbitrarily make men or children slaves, as to laws that should arbitrarily order them to be maimed or murdered. [*56]
We might here safely rest the whole question for no one, as has already been said, pretends that the constitution of the United States, by its own authority, created or authorized slavery as a new institution; but only that it intended to recognize it as one already established by authority of the State constitutions. This intended recognition if there were any such being founded on an error as to what the State constitutions really did authorize, necessarily falls to :the ground, a defunct intention.
We make a stand, then, at this point, and insist that the main question the only material question is already decided against slavery; and that it is of no consequence what recognition or sanction the constitution of the United States may have intended to extend to it.
The constitution of the United States, at its adoption, certainly took effect upon, and made citizens of all "the people of the United States," who were not slaves under the State constitutions. No one can deny a proposition so selfevident as that. If, then, the State constitutions, then existing, authorized no slavery at all, the constitution of the United States took effect upon, and made citizens of all "the people of the United States," without discrimination. And if all "the people of the United States" were made citizens of the United States, by the United States constitution, at its adoption, it was then forever too late for the State governments to reduce any of them to slavery. They were thenceforth citizens of a higher government, under a constitution that was "the supreme law of the land," "anything in the constitution or laws of the States to the contrary notwithstanding." If the State governments could enslave citizens of the United States, the State constitutions, and not the constitution of the United States, would be the "supreme law of the land" for no higher act of supremacy could be exercised by one government over another, than that of taking the citizens of the latter out of the protection of their government, and reducing them to slavery.
SECONDLY.
Although we might stop yet do not choose to stop at the point last suggested. We will now go further, and attempt to show, specifically from its provisions, that the constitution of the United States, not only does not recognize or sanction slavery, as a legal institution, but that, on the contrary, it presumes all men [*57] to be free; that it positively denies the right of property in man; and that it, of itself, makes it impossible for slavery to have a legal existence in any of the United States.
In the first place although the assertion is constantly made, and rarely denied, yet it is palpably a mere begging of the whole question in favor of slavery, to say that the constitution intended to sanction it; for if it intended to sanction it, it did thereby necessarily sanction it, (that is, if slavery then had any constitutional existence to be sanctioned.) The intentions of the constitution are the only means whereby it sanctions anything. And its intentions necessarily sanction everything to which they apply, and which, in the nature of things, they are competent to sanction. To say, therefore, that the constitution intended to sanction slavery, is the same as to say that it did sanction it; which is begging the whole question, and substituting mere assertion for proof.
Why, then, do not men say distinctly, that the constitution did sanction slavery, instead of saying that it intended to sanction it? We are not accustomed to use the word "intention," when speaking of the other grants and sanctions of the constitution. We do not say, for example, that the constitution intended to authorize congress "to coin money," but that it did authorize them to coin it. Nor do we say that it intended to authorize them "to declare war ;" but that it did authorize them to declare it. It would be silly and childish to say merely that it intended to authorize them "to coin money," and "to declare war," when the language authorizing them to do so, is full, explicit and positive. Why, then, in the case of slavery, do men say merely that the constitution intended to sanction it, instead of saying distinctly, as we do in the other cases, that it did sanction it? The reason is obvious. If they were to say unequivocally that it did sanction it, they would lay themselves under the necessity of pointing to the words that sanction it; and they are aware that the words alone of the constitution do not come up to that point. They, therefore, assert simply that the constitution intended to sanction it; and they then attempt to support the assertion by quoting certain words and phrases, which they say are capable of covering, or rather of concealing such an intention; and then by the aid of exterior, circumstantial and historical evidence, they attempt to enforce upon the mind the conclusion that, as matter of fact, such was the intention [*58] of those who drafted the constitution; and thence they finally infer that such was the intention of the constitution itself.
The error and fraud of this whole procedure and it is one purely of error and frauds consists in this that it artfully substitutes the supposed intentions of those who drafted the constitution, for the intentions of the constitution itself; and, secondly, it personifies the constitution as a crafty individual; capable of both open and secret intentions; capable of legally participating in, and giving effect to all the subtleties and double dealings of knavish men; and as actually intending to secure slavery, while openly professing to "secure and establish liberty and justice." It personifies the constitution as an individual capable of having private and criminal intentions, which it dare not distinctly avow, but only darkly hint at, by the use of words of an indefinite, uncertain and double meaning, whose application is to be gathered from external circumstances.
The falsehood of all these imaginings is apparent, the moment it is considered that the constitution is not a person, of whom an "intention," not legally expressed, can be asserted; that it has none of the various and selfish passions and motives of action, which sometimes prompt men to the practice of duplicity and disguise; that it is merely a written legal instrument; that, as such, it must have a fixed, and not a double meaning; that it is made up entirely of intelligible words; and that it has, and can have, no soul, no "intentions," no motives, no being, no personality, except what those words alone express or imply. Its "intentions" are nothing more nor less than the legal meaning of its words. Its intentions are no guide to its legal meaning as the advocates of slavery all assume; but its legal meaning is the sole guide to its intentions. This distinction is all important to be observed; for if we can gratuitously assume the intentions of a legal instrument to be what we may wish them to be, and can then strain or pervert the ordinary meaning of its words, in order to make them utter those intentions, we can make anything we choose of any legal instrument whatever. The legal meaning of the words of an instrument is, therefore, necessarily our only guide to its intentions.
In ascertaining the legal meaning of the words of the constitution, these rules of law, (the reasons of which will be more fully explained hereafter,) are vital to be borne constantly in mind, viz.: 1st, that no intention, in violation of natural justice and natural right, (like that to sanction slavery,) can be ascribed to the constitution, unless that intention be expressed in terms that are legally competent to express such an intention; and, 2d, that no terms, except those that are plenary, express, explicit, distinct, unequivocal, and to which no other meaning can be given, are legally competent to authorize or sanction anything contrary to natural right. The rule of law is materially different as to the terms necessary to legalize and sanction anything contrary to natural right, and those necessary to legalize things that are consistent with natural right. The latter may be sanctioned by natural implication and inference; the former only by inevitable implication, or by language that is full, definite, express, explicit, unequivocal, and whose unavoidable import is to sanction the specific wrong intended.
To assert, therefore, 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. Now, 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. 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. And 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, viz. [*60] 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 sanctioned slavery. Every 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 doubleentendre, 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.
But legal rules of interpretation entirely forbid and disallow all such implications, inferences, innuendos and doubleentendre, all aid of exterior evidence, all assumptions of the prior legality of slavery, and all gratuitous imputations of criminal unexpressed intentions; and consequently compel us to come back to the letter of the instrument, and find there a distinct, clear, necessary, peremptory sanction for slavery, or to surrender the point.
To the unprofessional reader these rules of interpretation will appear stringent, and perhaps unreasonable and unsound. For his benefit, therefore, the reasons on which they are founded, will be given. And he is requested to fix both the reasons and the rules fully in his mind, inasmuch as the whole legal meaning of the constitution, in regard to slavery, may perhaps be found to turn upon the construction which these rules fix upon its language.
But before giving the reasons of this rule, let us offer a few remarks in regard to legal rules of interpretation in general. Many persons appear to have the idea that these rules have no foundation in reason, justice or necessity; that they are little else than whimsical and absurd conceits, arbitrarily adopted by the courts. No idea can be more erroneous than this. The rules are absolutely indispensable to the administration of the justice arising out of any class of legal instruments whatever whether the instruments be simple contracts between man and man, or statutes enacted by legislatures, or fundamental compacts or constitutions of government agreed upon by the people at large. In regard to all these instruments, the law fixes, and necessarily must fix their meaning; and for the obvious reason, that otherwise their meaning could not be fixed at all. The parties to the simplest contract may disagree, or pretend to disagree as to its meaning, and of course as to their respective [*61] rights under it. The different members of a legislative body, who vote for a particular statute, may have different intentions in voting for it, and may therefore differ, or pretend to differ, as to its meaning. The people of a nation may establish a compact of government. The motives of one portion may be to establish liberty, equality and justice; and they may think, or pretend to think, that the words used in the instrument convey that idea. The motives of another portion may be to establish the slavery or subordination of one part of the people, and the superiority or arbitrary power of the other part; and they may think, or pretend to think, that the language agreed upon by the whole authorizes such a government. In all these cases, unless there were some rules of law, applicable alike to all instruments, and competent to settle their meaning, their meaning could not be settled; and individuals would of necessity lose their rights under them. The law, therefore, fixes their meaning; and the rules by which it does so, are founded in the same justice, reason, necessity and truth, as are other legal principles, and are for that reason as inflexible as any other legal principles whatever. They are also simple, intelligible, natural, obvious. Everybody are presumed to know them, as they are presumed to know any other legal principles. No one is allowed to plead ignorance of them, any more than of any other principle of law. All persons and people are presumed to have framed their contracts, statutes and constitutions with reference to them. And if they have not done so if they have said black when they meant white, and one thing when they meant another, they must abide the consequences. The law will presume that they meant what they said. No one, in a court of justice, can claim any rights founded on a construction different from that which these rules would give to the contract, statute, or constitution, under which he claims. The judiciary cannot depart from these rules, for two reasons. First, because the rules embody in themselves principles of justice, reason and truth; and are therefore as necessarily law as any other principles of justice, reason and truth; and, secondly, because if they could lawfully depart from them in one case, they might in another, at their own caprice. Courts could thus at pleasure become despotic; all certainty as to the legal meaning of instruments would be destroyed; and the administration of justice, according to the true meaning of contracts, statutes and constitutions, would be rendered impossible.
What, then, are some of these rules of interpretation? [*62]
One of them, (as has been before stated,) is, that where words are susceptible of two meanings, one consistent, and the other inconsistent, with justice and natural right, that meaning, and only that meaning, which is consistent with right, shall be attributed to them unless other parts of the instrument overrule that interpretation.
Another rule, (if indeed it be not the same,) is, that 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.
Another rule is, that 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.
One of the reasons of these stringent and inflexible rules, doubtless is, that judges have always known, that, in point of fact, natural justice was itself law, and that nothing inconsistent with it could be made law, even by the most explicit and peremptory language that legislatures could employ. But judges have always, in this country and in England, been dependent upon the executive and the legislature for their appointments and salaries, and been amenable to the legislature by impeachment. And as the executive and legislature have always enacted more or less statutes, and had more or less purposes to accomplish, that were inconsistent with natural right, judges have seen that it would be impossible for them to retain their offices, and at the same time maintain the integrity of the law against the will of those in whose power they were. It is natural also that the executive should appoint, and that the legislature should approve the appointment of no one for the office of judge, whose integrity they should suppose would stand in the way of their purposes. The consequence has been that all judges, (probably without exception,) though they have not dared deny, have yet in practice yielded the vital principle of law; and have succumbed to the arbitrary mandates of the other departments of the government, so far as to carry out their enactments, though inconsistent with natural right. But, as if sensible of the degradation and criminality of so doing, they have made a stand at the first point at which they could make it, without bringing themselves in direct collision with those on whom they were dependent. And that point is, that they will administer, as law, no statute, that is contrary to natural right, unless its lan [*63] guage be so explicit and peremptory, that there is no way of erasing its authority, but by flatly denying the authority of those who enacted it. They (the court) will themselves add nothing to the language of the statute, to help out its supposed meaning. They will imply nothing, infer nothing, and assume nothing, except what is inevitable; they will not go out of the letter of the statute in search of any historical evidence as to the meaning of the legislature, to enable them to effectuate any unjust intentions not fully expressed by the statute itself. Wherever a statute is supposed to have in view the accomplishment of any unjust end, they will apply the most stringent principles of construction to prevent that object being effected. They will not go a hair's breadth beyond the literal or inevitable import of the words of the statute, even though they should be conscious, all the while, that the real intentions of the makers of it would be entirely defeated by their refusal. The rule (as has been already stated) is laid down by the Supreme Court of the United States in these words:
"Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects." (United States vs. Fisher et al., 2 Cranch 390.) fn18
Such has become the settled doctrine of courts. And although it does not come up to the true standard of law, yet it is good in itself, so far as it goes, and ought to be unflinchingly adhered to, not merely for its own sake, but also as 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. [*64]
Another reason for the rules before given, against all constructions, implications, inferences except inevitable ones in favor of injustice, is, that but for them we should have no guarantees that our honest contracts, or honest laws would be honestly administered by the judiciary. It would be nearly or quite impossible for men, in framing their contracts or laws, to use language so as to exclude every possible implication in favor of wrong, if courts were allowed to resort to such implications. The law therefore excludes them; that is, the ends of justice the security of men's rights under their honest contracts, and under honest legislative enactments make it imperative upon courts of justice to ascribe an innocent and honest meaning to all language that will possibly bear an innocent and honest meaning. If courts of justice could depart from this rule for the purpose of upholding what was contrary to natural right, and should employ their ingenuity in spying out some implied or inferred authority, for sanctioning what was in itself dishonest or unjust, when such was not the necessary meaning of the language used, there could be no security whatever for the honest administration of honest laws, or the honest fulfilment of men's honest contracts. Nearly. all language, on the meaning of which courts adjudicate, would be liable, at the caprice of the court, to be perverted from the furtherance of honest, to the support of dishonest purposes. Judges could construe statutes and contracts in favor of justice or injustice, as their own pleasure might dictate.
Another reason of the rules, is, that as governments have, and can have no legitimate objects or powers opposed to justice and natural right, it would be treason to all the legitimate purposes of government, for the judiciary to give any other than an honest and innocent meaning to any language, that would bear such a construction.
The same reasons that forbid the allowance of any unnecessary implication or inference in favor of a wrong, in the construction of a statute, forbids also the introduction of any extraneous or historical evidence to prove that the intentions of the legislature were to sanction or authorize a wrong.
The same rules of construction, that apply to statutes, apply also to all those private contracts between man and man, which courts actually enforce. But as it is both the right and the duty of courts to invalidate altogether such private contracts as are inconsistent with justice, they will admit evidence exterior to their words, if offered by a defendant for the purpose of invalidating [*65] them. At the same time, a plaintiff, or party that wishes to set up a contract, or that claims its fulfillment, will not be allowed to offer any evidence exterior to its words, to prove that the contract is contrary to justice because, if his evidence were admitted, it would not make his unjust claim a legal one; But only invalidate it altogether. But as courts do not claim the right of invalidating statutes and constitutions, they will not admit evidence, exterior to their language, to give them such a meaning, that they ought to be invalidated.
I think no one no lawyer, certainly will now deny that it is a legal rule of interpretation that must be applied to all statutes, and also to al] private contracts that are to be enforced that an innocent meaning, and nothing beyond an innocent meaning, must be given to all language that will possibly bear such a meaning. All will probably admit that the rule, as laid down by the Supreme Court of the United States, is correct, to wit, that "where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects."
But perhaps it will be said that these rules, which apply to all statutes, and to all private contracts that are to be enforced, do not apply to the constitution. And why do they not? No reason whatever can be given. A constitution is nothing but a contract, entered into by the mass of the people, instead of a few individuals. This contract of the people at large becomes a law unto the judiciary that administer it, just as private contracts, (so far as they are consistent with natural right,) are laws unto the tribunals that adjudicate upon them. All the essential principles that enter into the question of obligation, in the case of a private contract, or a legislative enactment, enter equally into the question of the obligation of a contract agreed to by the whole mass of the people. This is too selfevident to need illustration.
Besides, is it not as important to the safety and rights of all interested, that a constitution or compact of government, established by a whole people, should be so construed as to promote the ends of justice, as it is that a private contract or a legislative enactment should be thus construed? Is it not as necessary that some check should be imposed upon the judiciary to prevent them from perverting, at pleasure, the whole purpose and character of [*66] the government, as it is that they should be restrained from perverting the meaning of a private contract, or a legislative enactment? Obviously written compacts of government could not be upheld for a day, if it were understood by the m~ of the people that the judiciary were at liberty to interpret them according to their own pleasure, instead of their being restrained by such rules as have now been hid down.
Let us now look at some of the provisions of the constitution, and see what crimes might be held to be authorized by them, if their meaning were not to be ascertained and restricted by such rules of interpretation as apply to all other legal instruments.
The second amendment to the constitution declares that "the right of the people to keep and bear arms shall not be infringed."
This fight "to keep and bear arms," implies the right to use them as much as a provision securing to the people the right to buy and keep food, would imply their right also to eat it. But this implied right to use arms, is only a right to use them in a manner consistent with natural fights as, for example, in defense of life, liberty, chastity, &c. Here is an innocent and just meaning, of which the words are susceptible; and such is therefore the extent of their legal meaning. If the courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right, they could imply a constitutional authority in the people to use arms, not merely for the just and innocent purposes of defense, but also for the criminal purposes of aggression for purposes of murder, robbery, or any other acts of wrong to which arms are capable of being applied. The mere verbal implication would as much authorize the people to use arms for unjust, as for just, purposes. But the legal implication gives only an authority for their innocent use. And why? Simply because justice is the end of all law the legitimate end of all compacts of government. It is itself law; and there is no fight or power among men to destroy its obligation.
Take another case. The constitution declares that "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
This power has been held by the Supreme Court to be an exclusive one in the general government and one that cannot be controlled by the States. Yet it gives Congress no constitutional authority to legalize any commerce inconsistent with natural [*67] justice between man and man; although the mere verbal import of the words, if stretched to their utmost tension in favor of the wrong, would authorize Congress to legalize a commerce m poisons and deadly weapons, for the express purpose of having them used in a manner inconsistent with natural right as for the purposes of murder.
At natural law, and on principles of natural right, a person, who should sell to another a weapon or a poison, knowing that it would, or intending that it should be used for the purpose of murder, would be legally an accessory to the murder that should be committed with it. And if the grant to Congress of a "power to regulate commerce," can be stretched beyond the innocent meaning of the words beyond the power of regulating and authorizing a commerce that is consistent with natural justice and be made to cover everything, intrinsically criminal, that can be perpetrated under the name of commerce then Congress have the authority of the constitution for granting to individuals the liberty of bringing weapons and poisons from "foreign nations" into this, and from one State into another, and selling them openly for the express purposes of murder, without any liability to legal restraint or punishment.
Can any stronger cases than these be required to prove the necessity, the soundness, and the inflexibility of that rule of law, which requires the judiciary to ascribe an innocent meaning to all language that will possibly bear an innocent meaning? and to ascribe only an innocent meaning to language whose mere verbal import might be susceptible of both an innocent and criminal meaning? If this rule of interpretation Could be departed from, there is hardly a power granted to Congress, that might not lawfully be perverted into an authority for legalizing crimes of the highest grade.
In the light of these principles, then, let us examine those clauses of the constitution, that are relied on as recognizing and sanctioning slavery. They are but three in number.
The one most frequently quoted is the third clause of Art. 4, Sec. 2, in these words:
"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." [*68]
There are several reasons why this clause renders no sanction to slavery.
1. It must be construed, if possible, as sanctioning nothing contrary to natural right.
If there be any "service or labor" whatever, to which any "persons" whatever may be "held," consistently with natural right, and which any person may, consistently with natural right, "claim" as his "due" of another, such "service or labor," and only such, is recognized and sanctioned by this provision.
It needs no argument to determine whether the "service or labor," that is exacted of a slave, is such as can be "claimed," consistently with natural right, as being "due" from him to his master. And if it cannot be, some other "service or labor" must, if possible, be found for this clause to apply to.
The proper definition of the word "service," in this case, obviously is, the labor of a servant. And we find, that at and before the adoption of the constitution, the persons recognized by the State laws as "servants," constituted a numerous class. The statute books of the States abounded with statutes in regard to "servants." Many seem to have been indented as servants by the public authorities, on account of their being supposed incompetent, by reason of youth and poverty, to provide for themselves. Many were doubtless indented as apprentices by their parents and guardians, as now. The English laws recognized a class of servants and many persons were brought here from England, in that character, and retained that character afterward. Many indented or contracted themselves as servants for the payment of their passage money to this country. In these various ways, the class of persons, recognized by the statute books of the States as "servants," was very numerous; and formed a prominent subject of legislation. Indeed, no other evidence of their number is necessary than the single fact, that "persons bound to service for a term of years," were specially noticed by the constitution of the United States, (Art. 1, Sec. 2,) which requires that they be counted as units in making up the basis of representation. There is, therefore, not the slightest apology for pretending that there was not a sufficient class for the words "service or labor" to refer to, without supposing the existence of slaves. fn20 [*69]
2. "Held to service or labor," is no legal description of slavery. Slavery is property in man. It is not necessarily attended with either "service or labor." A very considerable portion of the slaves are either too young, too old, too sick, or too refractory to render "service or labor." As a matter of fact, slaves, who are able to labor, may, in general, be compelled by their masters to do so. Yet labor is not an essential or necessary condition of slavery. The essence of slavery consists in a person's being owned as property without any reference to the circumstances of his being compelled to labor, or of his being permitted to live in idleness, or of his being too young, or too old, or too sick to labor.
If "service or labor" were either a test, or a necessary attendant of slavery, that test would of itself abolish slavery; because all slaves, before they can render "service or labor," must have passed through the period of infancy, when they could render neither service nor labor, and when, therefore, according to this test, they were free. And if they were free in infancy, they could not be subsequently enslaved.
3. "Held to service or labor in one State, under the laws thereof."
The "laws" take no note of the fact whether a slave "labors," or not. They recognize no obligation, on his part, to labor. They will enforce no "claim" of a master, upon his slave, for "service or labor." If the slave refuses to labor, the law will not interfere to compel him. The law simply recognizes the master's right of property in the slave just as it recognizes his right of property in a horse. Having done that, it leaves the master to compel the slave, if he please, and if he can as he would compel a horse to labor. If the master do not please, or be not able, to compel the slave to labor, the law takes no more cognizance of the case than it does of the conduct of a refractory horse. [*70]
In short, it recognizes no obligation, on the part of the slave, to labor, if he can avoid doing so. It recognizes no "claim," on the part of the master, upon his slave, for "services or labor," as "due" from the latter to the former.
4. 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. The law will not allow words to be strained a hair's breadth beyond their necessary meaning, to make them authorize a wrong. 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 and labors for another. He is "held" to do so, under a contract, and for a consideration, that is recognized, by the laws, as legitimate, and consistent with natural right. Yet he is not owned as property. A 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.
5. "No person held to service or labor, in one State, under the laws thereof."
The "laws," here mentioned, and impliedly sanctioned, are, of course, only constitutional laws laws, that are consistent, both with the constitution of the State, and the constitution of the United States. None others are "laws," correctly speaking, however they may attempt to "hold persons to service or labor," or however they may have the forms of laws on the statute books.
This word "laws," therefore, being a material word, leaves the whole question just where it found it for it certainly does not, of itself nor indeed does any other part of the clause say that an act of a legislature, declaring one man to be the property of another, is a "law" within the meaning of the constitution. As far as the word "laws" says anything on the subject, it says that such acts are not laws for such acts are clearly inconsistent with natural law and it yet remains to be shown that they are consistent with any constitution whatever, state or national.
The burden of proof, then, still rests upon the advocates of [*71] slavery, to show that an act of a State legislature, declaring one man to be the property of another, is a "law," within the meaning of this clause. To assert simply that it is, without proving it to be so, is a mere begging of the question for that is the very point in dispute.
The question, therefore, of the constitutionality of the slave acts must first be determined, before it can be decided that they are "laws" within the meaning of the constitution. That is, they must be shown to be consistent with the constitution, before they can be said to be sanctioned as "laws" by the constitution. Can any proposition be plainer than this? And yet the reverse must be assumed, in this case, by the advocates of slavery.
The simple fact, that an act purports to "hold persons to service or labor," clearly cannot, of itself, make the act constitutional. If it could, any act, purporting to hold" persons to service or labor," would necessarily be constitutional, without any regard to the "persons" so held, or the conditions on which they were held. It would be constitutional, solely because it purported to hold persons to service or labor. If this were the true doctrine, any of us, without respect of persons, might be held to service or labor, at the pleasure of the legislature. And then, if "service or labor" mean slavery, it would follow that any of us, without discrimination, might be made slaves. And thus the result would be, that the acts of a legislature would be constitutional, solely because they made slaves of the people. Certainly this would be a new test of the constitutionality of laws.
All the arguments in favor of slavery, that have heretofore been drawn from this clause of the constitution, have been founded on the assumption, that if an act of a legislature did but purport to "hold person, us to service or labor" no matter how, on what conditions, or for what cause that fact alone was sufficient to make the act constitutional. The entire sum of the argument, in favor of slavery, is but this, viz., the constitution recognizes the constitutionality of "laws" that "hold persons to service or labor," slave acts "hold persons to service or labor," therefore slave acts must be constitutional. This profound syllogism is the great pillar of slavery in this country. It has, (if we are to judge by results,) withstood the scrutiny of all the legal acumen of this nation for fifty years and more. If it should continue to withstand it for as many years as it has already done, it will then be time to propound the following, to wit: The State constitutions recognize the [*72] right of men to acquire property; theft, robbery, and murder are among the modes in which property may be acquired; therefore theft, robbery, and murder are recognized by these constitutions as lawful.
No doubt the clause contemplates that there may be constitutional "laws," under which persons may be "held to service or labor." But it does not follow, therefore, that every act, that purports to hold "persons to service or labor," is constitutional.
We are obliged, then, to determine whether a statute be constitutional, before we can determine whether the "service or labor" required by it, is sanctioned by the constitution as being lawfully required. The simple fact, that the statute would "hold persons to service or labor," is, of itself, no evidence, either for or against its constitutionality. Whether it be or be not constitutional, may depend upon a variety of contingencies such as the kind of service or labor required, and the conditions on which it requires it. Any service or labor, that is inconsistent with the duties which the constitution requires of the people, is of course not sanctioned by this clause of the constitution as being lawfully required. Neither, of course, is the requirement of service or labor, on any conditions, that are inconsistent with any rights that are secured to the people by the constitution, sanctioned by the constitution as lawful. Slave laws, then, can obviously be held to be sanctioned by this clause of the constitution, only by gratuitously assuming, 1st, that the constitution neither confers any rights, nor imposes any duties upon the people of the United States, inconsistent with their being made slaves; and, 2nd, that it sanctions the general principle of holding "persons to service or labor" arbitrarily, without contract, without compensation, and without the charge of crime. If this be really the kind of constitution that has been in force since 1789, it is somewhat wonderful that there are so few slaves in the country. On the other hand, if the constitution be not of this kind, it is equally wonderful that we have any slaves at all for the instrument offers no ground for saying that a colored man may be made a slave, and a white man not.
Again. Slave acts were not "laws" according to any State constitution that was in existence at the time the constitution of the United States was adopted. And if they were not "laws" a that time, they have not been made so since.
6. The constitution itself, (Art. 1. Sec. 2,) in fixing the basis of representation, has plainly denied that those described in Art. 4 [*73] as "persons held to service or labor," are slaves, for it declares that "persons bound to service for a term of years" shall be "included" in the "number of free persons." There is no legal difference between being "bound to service," and being "held to service or labor." The addition, in the one instance, of the words "for a term of years," does not alter the case, for it does not appear that, in the other, they are "held to service or labor" beyond a fixed term and, in the absence of evidence from the constitution itself, the presumption must be that they are not because such a presumption saves the necessity of going out of the constitution to find the persons intended, and it is also more consistent with the prevalent municipal, and with natural law.
And it makes no difference to this result, whether the word "free," in the first article, be used in the political sense common at that day, or as the correlative of slavery. In either case, the persons described as "free," could not be made slaves.
7. The words "service or labor" cannot be made to include slavery, unless by reversing the legal principle, that the greater includes the less, and holding that the less includes the greater; that the innocent includes the criminal; that a sanction of what is right, includes a sanction of what is wrong.
Another clause relied on as a recognition of the constitutionality of slavery, is the following, (Art. 1, Sec. 2:)
"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."
The argument claimed from this clause, in support of slavery, rests entirely upon the word "free," and the words "all other persons." Or rather, it rests entirely upon the meaning of the word "free," for the application of the words "all other persons" depends upon the meaning given to the word "free." The slave argument assumes, gratuitously, that the word "free" is used as the correlative of slavery, and thence it infers that the words "al. other persons," mean slaves.
It is obvious that the word "free" affords no argument for slavery, unless a meaning correlative with slavery be arbitrarily given to it, for the very purpose of making the constitution sanction or recognize slavery. Now it is very clear that no such [*74] meaning can be given to the word, for such a purpose. The ordinary meaning of a word cannot be thus arbitrarily changed, for the sake of sanctioning a wrong. A choice of meaning would be perfectly allowable, and even obligatory, if made for the purpose of avoiding any such sanction; but it is entirely inadmissible for the purpose of giving it. The legal rules of interpretation, heretofore laid down, imperatively require this preference of the right, over the wrong, in all cases where a word is susceptible of different meanings.
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," as has already been shown, (Ch. 6,) had been adopted in this country from its first settlement. The colonial charters all (probably without an exception) recognized it. The colonial legislation generally, if not universally, recognized it. The State constitutions, in existence at the time the constitution of the United States was formed and adopted, used the word in this sense, and no other. The Articles of Confederation the then existing national compact of union used the word in this sense and no other. The sense is an appropriate one in itself; the most appropriate to, and consistent with, the whole character of the constitution, of any of which the word is susceptible. In fact, it is the only one that is either appropriate to, or consistent with, the other parts of the instrument. Why, then, is it not the legal meaning? Manifestly it is the legal meaning. No reason whatever can be given against it, except that, if such be its meaning, the constitution will not sanction slavery! A very good reason a perfectly unanswerable reason, in fact in favor of this meaning; but a very futile one against it.
It is evident that the word "free" is not used as the correlative of slavery, because "Indians not taxed" are "excluded" from its application yet they are not therefore slaves.
Again. The word "free" cannot be presumed to be used as the correlative of slavery because slavery then had no legal existence. The word must obviously be presumed to be used as the correlative of something that did legally exist, rather than of something that did not legally exist. If it were used as the correlative of something that did not legally exist, the words "all other persons" would have no legal application. Until, then, it [*75] be shown that slavery had a legal existence, authorized either by the United States constitution, or by the then existing State constitutions a thing that cannot be shown the word "free" certainly cannot be claimed to have been used as its correlative.
But even if slavery had been authorized by the State constitutions, the word" free," in the United States constitution, could not have been claimed to have been used as its correlative, unless it had appeared that the United States constitution had itself provided or suggested no correlative of the word "free;" for it would obviously be absurd and inadmissible to go out of an instrument to find the intended correlative of one of its own words, when it had itself suggested one. This the constitution of the United States has done, in the persons of aliens. The power of naturalization is, by the constitution, taken from the States, and given exclusively to the United States. The constitution of the United States, therefore, necessarily supposes the existence of aliensand thus furnishes the correlative sought for. It furnishes a class both for the word "free," and the words "all other persons," to apply to. And yet the slave argument contends that we must overlook these distinctions, necessarily growing out of the laws of the United States, and go out of the constitution of the United States to find the persons whom it describes as the "free," and "all other persons." And what makes the argument the more absurd is, that by going out of the instrument to the then existing State constitutions the only instruments to which we can go we can find there no other persons for the words to apply to no other classes answering to the description of the "free persons" and "all other persons," than the very classes suggested by the United States constitution itself, to wit, citizens and aliens; (for it has previously been shown that the then existing State constituents recognized no such persons as slaves.)
If we are obliged (as the slave argument claims we are) to go out of the constitution of the United States to find the class whom it describes as "all other persons" than "the free," we shall, for aught I see, be equally obliged to go out of it to find those whom it describes as the "free" for "the free," and "all other persons" than "the free," must be presumed to be found described somewhere in the same instrument. If, then, we are obliged to go out of the constitution to find the persons described in it as "the free" and "all other persons," we are obliged to go out of it to ascertain who are the persons on whom it declares that the [*76] representation of the government shall be based, and on whom, of course, the government is founded. And thus we should have the absurdity of a constitution that purports to authorize a government, yet leaves us to go in search of the people who are to be represented in it. Besides, if we are obliged to go out of the constitution, to find the persons on whom the government rests, and those persons are arbitrarily prescribed by some other instrument, independent of the constitution, this contradiction would follow, viz., that the United States government would be a subordinate government a mere appendage to something else a tail to some other kite or rather a tail to a large number of kites at once instead of being, as it declares itself to be, the supreme government its constitution and laws being the supreme law of the land.
Again. It certainly cannot be admitted that we must go out of the United States constitution to find the classes whom it describes as "the free," and" all other persons" than "the free," until it be shown that the constitution has told us where to go to find them. In all other cases, (without an exception, I think,) where the constitution makes any of its provisions dependent upon the State constitutions or State legislatures, it has particularly described them as depending upon them. But it gives no intimation that it has left it with the State constitutions, or the State legislatures, to prescribe whom it means by the terms "free persons" and "all other persons," on whom it requires its own representation to be based. We have, therefore, no more authority from the constitution of the United States, for going to the State constitutions, to find the classes described in the former as the" free persons" and. "all other persons," than we have for going to Turkey or Japan. We are compelled, therefore, to find them in the constitution of the United States itself, if any answering to the description can possibly be found there.
Again. If we were permitted to go to the State constitution, or to the State statute books, to find who were the persons intended by the constitution of the United States; and if, as the slave argument assumes, it was left to the States respectively to prescribe who should, and who should not, be "free" within the meaning of the constitution of the United States, it would follow that the terms "free" and "all other persons," might be applied in as many different ways, and to as many different classes of persons, as there were different States in the Union. Not only so, but the [*77] application might also be varied at pleasure in the same State. One inevitable consequence of this state of things would be, that there could be neither a permanent, nor a uniform basis of representation throughout the country. Another possible, and even probable consequence would be, such inextricable confusion, as to the persons described by the same terms in the different States, that Congress could not apportion the national representation at all, in the manner required by the constitution. The questions of law, arising out of the different uses of the word" free," by the different States, might be made so endless and inexplicable, that the State governments might entirely defeat all the power of the general government to make an apportionment.
If the slave construction be put upon this clause, still another difficulty, in the way of making an apportionment, would follow, viz., that Congress could have no legal knowledge of the persons composing each of the two different classes, on which its representation must be based; for there is no legal record known to the laws of the United States, or even to the laws of the Statesof those who are slaves, or those who are not. The information obtained by the census takers, (who have no legal records to go to,) must, in the nature of things, be of the most loose and uncertain character, on such points as these. Any accurate or legal knowledge on the subject is, therefore, obviously impossible. But if the other construction be adopted, this difficulty is avoidedfor Congress then has the control of the whole matter, and may adopt such means as may be necessary for ascertaining accurately the persons who belong to each of these different classes. And by their naturalization laws they actually do provide for legal record of all who are made "free" by naturalization.
And this consideration of certainty, as to the individuals and numbers belonging to each of these two classes, "free" and "all other persons," acquires an increased and irresistible force, when it is considered that these different classes of persons constitute also different bases for taxation, as well as representation. The requirement of the constitution is, that "representatives and direct taxes shall be apportioned," &c., according to the number of "free persons" and "all other persons." In reference to so important a subject as taxation, accurate and legal knowledge of the persons and numbers belonging to the different classes becomes indispensable. Yet under the slave construction this legal knowledge becomes impossible. Under the other construction it is as perfectly [*78] and entirely within the power of Congress, as, in the nature of things, such a subject can be for naturalization is a legal process; and legal records, prescribed by Congress, may be, and actually are, preserved of all the persons naturalized or made "free" by their laws.
If we adopt that meaning of the word" free," Which is consistent with freedom that meaning which is consistent with natural right the meaning given to it by the Articles of Confederation, by the then existing State constitutions, by the colonial charters, and by the English law ever since our ancestors enjoyed the name of freemen, all these difficulties, inconsistencies, contradictions and absurdities, that must otherwise arise, vanish. The word "free" then describes the native and naturalized citizens of the United States, and the words "all other persons" describe resident aliens, "Indians not taxed," and possibly some others. The representation is then placed upon the best, most just, and most rational basis that the words used can be made to describe. The interpretation also becomes equal and uniform throughout the country. The principle of distinction between the two bases, becomes also a stable, rational and intelligible one one too necessarily growing out of the exercise of one of the powers granted to Congress; one, too, whose operation could have been foreseen and judged of by the people who adopted the constitution instead of one fluctuating with the everchanging and arbitrary legislation of the various States, whose mode and motives of action could not have been anticipated. Adopt this definition of the word "free," and the same legislature (that is, the national one) that is required by the constitution to apportion the representation according to certain principles, becomes invested as it evidently ought to be, and as it necessarily must be, to be efficient with the power of determining, by their own (naturalization) laws, who are the persons composing the different bases on which its apportionment is to be made; instead of being, as they otherwise would be, obliged to seek for these persons through all the statute books of all the different States of the Union, and through all the evidences of private property, under which one of these classes might be held. Adopt this definition of the word "free," and the United States government becomes, so far at least as its popular representation. Which is its most important feature is concerned, an independent government, subsisting by its own vigor, and pervaded throughout by one uniform principle. Reject this definition, and the [*79] popular national representation loses at once its nationality, and becomes a mere dependency on the will of local corporations a mere shuttlecock to be driven hither and thither by the arbitrary and conflicting legislation of an indefinite number of separate States. Adopt this meaning of the word "free," and the national government becomes capable of knowing its own bases of representation and power, and its own subjects of taxation. Reject this definition, and the government knows not whom it represents, or on whom to levy taxes for its support. Adopt this meaning of the word "free," and some three millions of native born, but now crushed human beings, become, with their posterity, men and citizens. Adopt this meaning this legal meaning this only meaning that can, in this clause, be legally given to the word "free," and our constitution becomes, instead of a nefarious compact of conspirators against the rights of man, a consistent and impartial contract of government between all "the people of the United States," for securing" to themselves and their posterity the blessings of liberty" and "justice."
Again. We cannot unnecessarily place upon the constitution a meaning directly destructive of the government it was designed to establish. By giving to the word "free" the meaning universally given to it by our political papers of a similar character up to the time the constitution was adopted, we give to the government three millions of citizens, ready to fight and be taxed for its support. By giving to the word "free" a meaning correlative with slavery, we locate in our midst three millions of enemies; thus making a difference of six millions, (one third of our whole number,) in the physical strength of the nation. Certainly a meaning so suicidal towards the government, cannot be given to any part of the constitution, except the language be irresistibly explicit; much less can it be done, (as in this case it would be,) wantonly, unnecessarily, gratuitously, wickedly, and in violation of all previous usage.
Again. If we look into the Constitution itself for the meaning of the word "free," we find it to result from the distinction there recognized between citizens and aliens. If we look into the contemporary State constitutions, we still find the word "free" to express the political relation of the individual to the State, and not any property relation of one individual to another. If we look into the law of nature for the meaning of the word "free," we find that by that law all mankind are free. Whether, therefore, we look to [*80] the constitution itself, to the contemporary State constitutions, or to the law of nature, for the meaning of this word "free," the only meaning we shall find is one consistent with the personal liberty of all. On the other hand, if we are resolved to give the word a meaning correlative with slavery, we must go to the lawless code of the kidnapper to find such a meaning. Does it need any argument to prove to which of these different codes our judicial tribunals are bound to go, to find the meaning of the words used in a constitution that is established professedly to secure liberty and justice?
Once more. It is altogether a false, absurd, violent, unnatural and preposterous proceeding, in construing a political paper, which purports to establish men's relations to the State, and especially in construing the clause in which it fixes the basis of representation and taxation, to give to the words, which describe the persons to be represented and taxed, and which appropriately indicate those relations of men to the State which make them proper subjects of taxation and representation to give to such words a meaning, which, instead of describing men's relations to the State, would describe merely a personal or property relation of one individual to another, which the State has nowhere else recognized, and which, if admitted to exist, would absolve the persons described from all allegiance to the State, would deny them all right to be represented, and discharge them from all liability to be taxed. fn21 [*81]
But it is unnecessary to follow out this slave argument into all its ramifications. It sets out with nothing but assumptions that are gratuitous, absurd, improbable, and irrelevant, contrary to all previous usage, contrary to natural right, and therefore inadmissible. It conducts to nothing but contradictions, absurdities, impossibilities, indiscriminate slavery, anarchy, and the destruction of the very government which the constitution was designed to establish.
The other clause relied on as a recognition and sanction, both of slavery and the slave trade, is the following:
"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 one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person." (Art. 1, Sec. 9.)
The slave argument, drawn from this clause, is, that the word "importation" applies only to property, and that it therefore implies, in this clause, that the persons to be imported are necessarily to be imported as property that is, as slaves.
But the idea that the word "importation" applies only to property, is erroneous. It applies correctly both to persons and things. The definition of the verb "import" is simply "to bring from a foreign country, or jurisdiction, or from another State, into one's own country, jurisdiction or State." When we speak of "importing" things, it is true that we mentally associate with them the idea of property. But that is simply because things are property, and not because the word "import" has any control, in that particular, over the character of the things imported. When we speak of importing "persons," we do not associate with them the idea of property, simply because "persons" are not property.
We speak daily of the "importation of foreigners into the country;" but no one infers there from that they are brought in as slaves, but as passengers. A vessel imports, or brings in, five hundred passengers. Every vessel, or master of a vessel, that [*82] "brings in" passengers, "imports" them. But such passengers are not therefore slaves. A man imports his wife and childrenbut they are not therefore his slaves, or capable of being owned or sold as his property. A man imports a gang of laborers, to clear lands, cut canals, or construct railroads; but not therefore to be held as slaves. An innocent meaning must be given to the word, if it will bear one. Such is the legal rule.
Even the popular understanding of the word "import," when applied to "persons," does not convey the idea of property. It is only when it is applied distinctly to "slaves," that any such idea is conveyed; and then it is the word "slaves," and not the word "import," that suggests the idea of property. Even slave traders and slaveholders attach no such meaning to the word "import," when it is connected with the word "persons;" but only when it is connected with the word "slaves."
In the case of Ogden vs. Saunders, (12 Wheaton, 332,) Chief Justice Marshall said, that in construing the constitution, "the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended." On this principle of construction, there is not the least authority for saying that this provision for "the importation of persons," authorized the importation of them as slaves. To give it this meaning, requires the same stretching of words towards the wrong, that is applied, by the advocates of slavery, to the words "service or labor," and the words "free" and "all other persons."
Another reason, which makes it necessary that this construction should be placed upon the word "importation," is, that the clause contains no other word that describes the immigration of foreigners. Yet that the clause related to the immigration of foreigners generally, and that it restrained Congress, (up to the year 1808,) from prohibiting the immigration of foreigners generally, there can be no doubt.
The object, and the only legal object, of the clause was to restrain Congress from so exercising their "power of regulating commerce with foreign nations, and among the several States, and with the Indian tribes" (which power has been decided by the Supreme Court of the United States, to include a power over navigation and the transportation of passengers in boats and vessels fn22 [*83] as to obstruct the introduction of new population into such of the States as were desirous of increasing their population in that manner. The clause does not imply at all, that the population, which the States were thus to "admit," was to be a slave population.
The word "importation," (I repeat,) is the only word in the clause that applies to persons that were to come into the country from foreign nations. The word "migration" applies only to those who were to go out from one of our own States or Territories into another. "Migration" is the act of going out from a state or country; and differs from immigration in this, that immigration is the act of coming into a state or country. It is obvious, therefore, that the "migration," which Congress are here forbidden to prohibit, is simply the going out of persons from one of our own States or Territories into another (for that is the only "migration" that could come within the jurisdiction of Congress) and that it has no reference to persons coming in from foreign countries to our own.
If, then, "migration," as here used, has reference only to persons going out from one State into another, the word "importation" is the only one in the clause that is applicable to foreigners coming into our country. This word "importation," then, being the only word that can apply to persons coming into the country, it must be considered as substantially synonymous with immigration, and must apply equally to all persons," that are "imported," or brought into the country as passengers. And if it applies equally to all persons, that are brought in as passengers, it does not imply that any of those persons are slaves; for no one will pretend that this clause ever authorized the State governments to treat as slaves all persons that were brought into the country as passengers. And if it did not authorize them to treat all such passengers as slaves, it did not authorize them to treat any of them as such; for it makes no discrimination between the different "persons" that should be thus imported.
Again. The argument, that the allowance of the "importation" of "persons," implies the allowance of property in such persons, would imply a recognition of the validity of the slave laws of other countries; for unless slaves were obtained by valid purchase abroad which purchase implies the existence and validity of foreign slave laws the importer certainly could not claim to import his slaves as property; but he would appear at the [*84] customhouse as a mere pirate, claiming to have his captures legalized. So that, according to the slave argument, the simple use of the word "importation," in the constitution, as applied to "persons," bound our government, not only to the sanction and toleration of slavery in our own country, but to the recognition of the validity of the slave laws of other countries.
But further. The allowance of the "importation" of slaves, as such, under this clause of the constitution, would imply that Congress must take actual, and even the most critical cognizance of the slave laws of other countries; and that they should allow neither the mere word of the person calling himself the owner, nor anything short of the fullest and clearest legal proof, according to the laws of those countries, to be sufficient to enable him to enter his slaves, as property, at the customhouse; otherwise any masters of vessels, from England or France, as well as from Africa, might, on their arrival here, claim their passengers as slaves. Did the constitution, in this clause, by simply using the word "importation," instead of immigration, intend to throw upon the national government at the hazard of making it a party' to the illegal enslavement of human beings the responsibility of investigating and deciding upon the legality and credibility of all the evidence that might be offered by the piratical masters of slave ships, to prove their valid purchase of, and their right of property in, their human cargoes, according to the slave laws of the countries from which they should bring them? Such must have been the intention of the constitution, if it intended (as it must, if it intended anything of this kind) that the fact of "importation" under the commercial regulations of Congress, should be thereafter a sufficient authority for holding in slavery the persons imported.
But perhaps it will be said that it was not the intention of the constitution, that Congress should take any responsibility at all in the matter; that it was merely intended that whoever came into the country with a cargo of men, whom he called his slaves, should be permitted to bring them in on his own responsibility, and sell them as slaves for life to our people; and that Congress were prohibited only from interfering, or asking any questions as to how he obtained them, or how they became his slaves. Suppose such were the intention of the constitution what follows? Why, that the national government, the only government that was to be known to foreign nations, the only government that was [*85] to be permitted to regulate our commerce or make treaties with foreign nations, the government on whom alone was to rest the responsibility of war with foreign nations, was bound to permit (until 1808) all masters, both of our own ships and of the ships of other nations, to turn pirates, and make slaves of their passengers, whether Englishmen, Frenchmen, or any other civilized people, (for the constitution makes no distinction of "persons" on this point,) bring them into this country, sell them as slaves for life to our people, and thus make our country a rendezvous and harbor for pirates, involve us inevitably in war with every civilized nation in the world, cause ourselves to be outlawed as a people, and bring certain and swift destruction upon the whole nation; and yet this government, that had the sole responsibility of all our foreign relations, was constitutionally prohibited from interfering in the matter, or from doing anything but lifting its hands in prayer to God and these pirates, that the former would so far depart, and the latter so far desist from their usual courses, as might be necessary to save us until 1808, (after which time we would take the matter into our own hands, and, by prohibiting the cause of the danger, save ourselves,) from the just vengeance, which the rest of mankind were taking upon us.
This is the kind of constitution, under which (according to the slave argument) we lived until 1808.
But is such the real character of the constitution? By it, did we thus really avow to the world that we were a nation of pirates? that our territory should be a harbor for pirates? that our people were constitutionally licensed to enslave the people of all other nations, without discrimination, (for the instrument makes no discrimination,) whom they could either kidnap in their own countries, or capture on the high seas? and that we had even prohibited our only government that could make treaties with foreign nations, from making any treaty, until 1808, with any particular nation, to exempt the people of that nation from their liability to be enslaved by the people of our own? The slave argument says that we did avow all this. If we really did, perhaps all that can be said of it now is that it is very fortunate for us that other nations did not take us at our word. For if they had taken us at our word, we should, before 1808, have been among the nations that were.
Suppose that, on the organization of our, government, we had been charged by foreign nations with having established a piratical government how could we have rebutted the charge otherwise [*86] than by denying that the words "importation of persons" legally implied that the persons imported were slaves? Suppose that European ambassadors had represented to President Washington that their governments considered our constitution as licensing our people to kidnap the people of other nations, without discrimination, and bring them to the United States as slaves. Would he not have denied that the legal meaning of the clause did anything more than secure the free introduction of foreigners as passengers and freemen? Or would he he, the worldrenowned champion of human rights have indeed stooped to the acknowledgment that in truth he was file head of a nation of pirates, whose constitution did guaranty the freedom of kidnapping men abroad, and importing them as slaves? And would he, in the event of this acknowledgment, have sought to avert the destruction, which such an avowal would be likely to bring upon the nation, by pleading that, although such was the legal meaning of the words of our constitution, we yet had an understanding, (an honorable understanding!) among ourselves, that we would not take advantage of the license to kidnap or make slaves of any of the citizens of those civilized and powerful nations of Europe, that kept ships of war, and knew the use of gunpowder and cannon; but only the people of poor, weak, barbarous and ignorant nations, who were incapable of resistance and retaliation?
Again. Even the allowance of the simple "importation" of slaves (and that is the most that is literally provided for and the word "importation" must be construed to the letter,) would not, of itself, give any authority for the continuance of slavery after "importation." If a man brings either property or persons into this country, he brings them in to abide the constitutional laws of the country; and not to be held according to the customs of the country from which they were brought. Were it not so, the Turk might import a harem of Georgian slaves, and, at his option, either hold them as his own property, or sell them as slaves to our own people, in defiance of any principles of freedom that should prevail amongst us. To allow this kind of "importation,'' would be to allow not merely the importation of foreign "persons," but also foreign laws to take precedence of our own.
Finally. The conclusion, that Congress were restrained, by this clause, only from prohibiting the immigration of a foreign population, and not from prohibiting the importation of slaves, to be held as slaves after their importation is the more inevitable [*87] from the fact that the power given to Congress of naturalizing foreigners, is entirely unlimited except that their laws must be uniform throughout the United States. They have perfect power to pass laws that shall naturalize every foreigner without distinction, the moment he sets foot on our soil. And they had this power as perfectly prior to 1808, as since. And it is a power entirely inconsistent with the idea that they were bound to admit, and forever after to acknowledge as slaves, all or any who might be attempted to be brought into the country as such.
One other provision of the constitution, viz., the one that, "the United States shall protect each of the States against domestic violence" has sometimes been claimed as a special pledge of impunity and succor to that kind of "violence," which consists in one portion of the people's standing constantly upon the neck of another portion, and robbing them of all civil privileges, and trampling upon all their personal rights. The argument seems to take it for granted, that the only proper way of protecting a "republican" State (for the States are all to be "republican") against "domestic violence," is to plant men firmly upon one another's necks, (about in the proportion of two upon one,) arm the two with whip and spur, and then keep an armed force standing by to cut down those that are ridden, if they dare attempt to throw the riders. When the ridden portion shall, by this process, have been so far subdued as to bear the burdens, lashings and spurring of the other portion without resistance, then the state will have been secured against "domestic violence," and the "republican form of government" will be completely successful.
This version of this provision of the constitution presents a fair illustration of those new ideas of law and language that have been invented for the special purpose of bringing slavery within the pale of the constitution.
If it have been shown that none of the other clauses of the constitution refer to slavery, this one, of course, cannot be said to [*88] refer to slave insurrections; because if the constitution presumes everybody to be free, it of course does not suppose that there can be such a thing as an insurrection of slaves.
But further. The legal meaning, and the only legal meaning of the word "violence," in this clause, is unlawful force. The guaranty, therefore, is one of protection only against unlawful force. Let us apply this doctrine to the case of the slaves and their masters, and see which party is entitled to be protected against the other. Slaveholding is not an act of law; it is an act of pure "violence," or unlawful force. It is a mere trespass, or assault, committed by one person upon another. For example one person beats another, until the latter will obey him, work for him without wages, or, in case of a woman, submit to be violated. Such was the character (as has been already shown) of all the slaveholding practiced in this country at the adoption of the constitution. Resistance to such slaveholding is not "violence," nor resistance to law; it is nothing more nor less than selfdefence against a trespass. It is a perfectly lawful resistance to an assault and battery. It can no more be called "violence," (unlawful force,) than resistance to a burglar, an assassin, a highwayman, or a ravisher, can be called "violence." All the "violence" (unlawful force) there is in the case, consists in the aggression, not, in the resistance. This clause, then, so far as it relates to slavery, is a guaranty against the "violence" of slaveholding, not against any necessary act of selfdefence on the part of the slave.
We have thus examined all those clauses of the constitution, that have been relied on to prove that the instrument recognizes and sanctions slavery. No one would have ever dreamed that either of these clauses alone, or that all of them together, contained so much as an allusion to slavery, had it not been for circumstances extraneous to the constitution itself. And what an these extraneous circumstances? They are the existence and toleration, in one portion of the country, of a crime that embodies within itself nearly all the other crimes, which it is the principal object of all our governments to punish and suppress; a crime which we have therefore no more right to presume that the constitution of the United States intended to sanction, than we have to presume that it intended to sanction all the separate crimes which slavery embodies, and our governments prohibit. Yet we have gratuitously presumed that the constitution intended to sanction all these separate crimes, as they are comprehended in [*89] the general crime of slavery. And acting upon this gratuitous presumption, we have sought, in the words of the constitution, for some hidden meaning, which we could imagine to have been understood, by the initiated, as referring to slavery; or rather we have presumed its words to have been used as a kind of cipher, which, among confederates in crime, (as we presume its authors to have been,) was meant to stand for slavery. In this way, and in this way only, we pretend to have discovered, in the clauses that have been examined, a hidden, yet legal sanction of slavery. In the name of all that is legal, who of us are safe, if our governments, instead of searching our constitutions to find authorities for maintaining justice, are to continue to busy themselves in such prying and microscopic investigations, after such disguised and enigmatical authorities for such wrongs as that of slavery, and their pretended discoveries are to be adopted as law, which they are sworn to carry into execution?
The clauses mentioned, taken either separately or collectively, neither assert, imply, sanction, recognize nor acknowledge any such thing as slavery. They do not even speak of it. They make no allusion to it whatever. They do not suggest, and, of themselves, never would have suggested the idea of slavery. There is, in the whole instrument, no such word as slave or slavery; nor any language that can legally be made to assert or imply the existence of slavery. There is in it nothing about color; nothing from which a liability to slavery can be predicated of one person more than another; or from which such a liability can be predicated of any person whatever. The clauses, that have been claimed for slavery, are all, in themselves, honest in their language, honest in their legal meaning; and they can be made otherwise only by such gratuitous assumptions against natural right, and such straining of words in favor of the wrong, as, if applied to other clauses, would utterly destroy ever)' principle of liberty and justice, and allow the whole instrument to be perverted to every conceivable purpose of tyranny and crime.
Yet these perversions of the constitution are made by the advocates of slavery, not merely in defiance of those legal rules of interpretation, which apply to all instruments of the kind, but also in defiance of the express language of the preamble, which declares that the object of the instrument is to "establish justice" and "secure liberty" which declaration alone would furnish an imperative rule of interpretation, independently of all other rules. [*90]
Let us now look at the positive provisions of the constitution, in favor of liberty, and see whether they are not only inconsistent with any legal sanction of slavery, but also whether they must not, of themselves, have necessarily extinguished slavery, if it had had any constitutional existence to be extinguished.
And, first, the constitution made all "the people of the United States" citizens under the government to be established by it; for all of those, by whose authority the constitution declares itself to be established, must of course be presumed to have been made citizens under it. And whether they were entitled or not to the right of suffrage, they were at least entitled to all the personal liberty and protection, which the constitution professes to secure to "the people" generally.
Who, then, established the constitution?
The preamble to the constitution has told us in the plainest possible terms, to wit, that "We, the people of the United States," "do ordain and establish this constitution," &c.
By "the people of the United States," here mentioned, the constitution intends all "the people" then permanently inhabiting the United States. If it does not intend all, who were intended by "the people of the United States?" The constitution itself gives no answer to such a question. It does not declare that "we, the white people," or "we, the free people," or "we, a part of the people" but that "we, the people" that is, we the whole people of the United States, "do ordain and establish this constitution.''
If the whole people of the United States were not recognized as citizens by the constitution, then the constitution gives no information as to what portion of the people were to be citizens under it. And the consequence would then follow that the constitution established a government that could not know its own citizens.
We cannot go out of the constitution for evidence to prove who were to be citizens under it. We cannot go out of a written instrument for evidence to prove the parties to it, nor to explain its meaning, except the language of the instrument on that point be ambiguous. In this case there is no ambiguity. The language of the instrument is perfectly explicit and intelligible.
Because the whole people of the country were not allowed to rote on the ratification of the constitution, it does not follow that they were not made citizens under it; for women and children did not vote on its adoption; yet they are made citizens by it, and [*91] are entitled as citizens to its protection; and the State governments cannot enslave them. The national constitution does not limit the right of citizenship and protection by the right of suffrage, any more than do the State constitutions. Under the most, probably under all, the State constitutions, there are persons who are denied the right of suffrage but they are not therefore liable to be enslaved.
Those who did take part in the actual ratification of the constitution, acted in behalf of, and, in theory, represented the authority of the whole people. Such is the theory in this country wherever suffrage is confined to a few; and such is the virtual declaration of the constitution itself. The declaration that "we the people of the United States do ordain and establish this constitution,'' is equivalent to a declaration that those who actually participated in its adoption, acted in behalf of all others, as well as for themselves.
Any private intentions or understandings, on the part of one portion of the people, as to who should be citizens, cannot be admitted to prove that Such portion only were intended by the constitution, to be citizens; for the intentions of the other portion would be equally admissible to exclude the exclusives. The mass of the people of that day could claim citizenship under the constitution, on no other ground than as being a part of "the people of the United States ;" and such claim necessarily admits that all other "people of the United States" were equally citizens.
That the designation, "We, the people of the United States," included the whole people that properly belonged to the United States, is also proved by the fact that no exception is made in any other part of the instrument.
If the constitution had intended that any portion of "the people of the United States" should be excepted from its benefits, disfranchised, outlawed, enslaved; it would of course have designated these exceptions with such particularity as to make it sure that none but the true persons intended would be liable to be subjected to such wrongs. Yet, instead of such particular designation of the exceptions, we find no designation whatever of the kind. But on the contrary, we do find, in the preamble itself, a sweeping declaration to the effect that there are no such exceptions; that the whole people of the United States are citizens, and entitled to liberty, protection, and the dispensation of justice under the constitution. [*92]
If it be admitted that the constitution designated its own citizens, then there is no escape from the conclusion that it designated the whole people of the United States as such. On the other hand, if it be denied that the constitution designated its own citizens, one of these two conclusions must follow, viz., 1st, that it has no citizens; or, 2d, that it has left an unrestrained power in the State governments to determine who may, and who may not be citizens of the United States government. If the first of these conclusions be adopted, viz., that the constitution has no citizens, then it follows that there is really no United States government, except on paper for there would be as much reason in talking of an army without men, as of a government without citizens. If the second conclusion be adopted, viz., that the State governments have the right of determining who may, and who may not be citizens of the United States government, then it follows that the state governments may at pleasure destroy the government of the United States, by enacting that none of their respective inhabitants shall be citizens of the United States.
This latter is really the doctrine of some of the slave States the "staterights" doctrine, so called. That doctrine holds that the general government is merely a confederacy or league of the several States, as States; not a government established by the people, as individuals. This "staterights" doctrine has been declared unconstitutional by reiterated opinions of the Supreme Court of the United States ; and, what is of more consequence, it is denied also by the preamble to the constitution itself, which declares that it is "the people" (and not the State governments) that ordain and establish it. It is true also that the constitution was ratified by conventions of the people, and not by the legislatures of the States. Yet because the constitution was ratified by conventions of the States separately, (as it naturally would be for convenience, and as it necessarily must have been for the reason that none but [*93] the people of the respective States could recall any portion of the authority they had delegated to their State governments, so as to grant it to the United States government,) yet because it was thus ratified, I say, some of the slave States have claimed that the general government was a league of States, instead of a government formed by "the people." The true reason why the slave States have held this theory, probably is, because it would give, or appear to give, to the States the right of determining who should, and who should not, be citizens of the United States. They probably saw that if it were admitted that the constitution of the United States had designated its own citizens, it had undeniably designated the whole people of the then United States as such; and that, as a State could not enslave a citizen of the United States, {on account of the supremacy of the constitution of the United States,) it would follow that there could be no constitutional slavery in the United States.
Again. If the constitution was established by authority of all "the people of the United States," they were all legally parties to it, and citizens under it. And if they were parties to it, and citizens under it, it follows that neither they, nor their posterity, nor any nor either of them, can ever be legally enslaved within the territory of the United States; for the constitution declares its object to be, among other things, "to secure the blessings of liberty to ourselves, and our posterity." This purpose of the national constitution is a law paramount to all State constitutions; for it is declared that "this constitution, and the laws of the United States that shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding."
No one, I suppose, doubts that if the State governments were to abolish slavery, the slaves would then, without further legislation, become citizens of the United States. Yet, in reality, if they would become citizens then, they are equally citizens nowelse it would follow that the State governments had an arbitrary power of making citizens of the United States; or what is equally absurd it would follow that disabilities, arbitrarily imposed by the State governments, upon native inhabitants of the country, were, of themselves, sufficient to deprive such inhabitants of the citizenship, which would otherwise have been conferred [*94] upon them by the constitution of the United States. To suppose that the State governments are thus able, arbitrarily, to keep in abeyance, or arbitrarily to withhold from any of the inhabitants of the country, any of the benefits or rights which the national constitution intended to confer upon them, would be to suppose that the State constitutions were paramount to the national one. The conclusion, therefore, is inevitable, that the State governments have no power to withhold the rights of citizenship from any who are otherwise competent to become citizens. And as all the native born inhabitants of the country are at least competent to become citizens of the United States, (if they are not already such,) the State governments have no power, by slave laws or any other, to withhold the rights of citizenship from them.
But however clear it may be, that the constitution, in reality, made citizens of all "the people of the United States," yet it is not necessary to maintain that point, in order to prove that the constitution gave no guaranty or sanction to slavery for if it had not already given citizenship to all, it nevertheless gave to the government of the United States unlimited power of offering citizenship to all. The power given to the government of passing naturalization laws, is entirely unrestricted, except that the laws must be uniform throughout the country. And the government have undoubted power to offer naturalization and citizenship to every person in the country, whether foreigner or native, who is not already a citizen. To suppose that we have in the country three millions of native born inhabitants, not citizens, and whom the national government has no power to make citizens, when its power of naturalization is entirely unrestricted, is a palpable contradiction.
But further. The constitution of the United States must be made consistent with itself throughout; and ii' any of its parts are irreconcilable with each other, those parts that are inconsistent with liberty, justice and right, must be thrown out for inconsistency. Besides the provisions already mentioned, there are numerous others, in the constitution of the United States, that are entirely and irreconcilably inconsistent with the idea that there either was, or could be, any constitutional slavery in this country.
Among these provisions are the following:
First. Congress have power to lay a capitation or poll tax upon the people of the country. Upon whom shall this tax be levied? and who must be held responsible for its payment? Sup [*95] pose a poll tax were laid upon a man, whom the State laws should pretend to call a slave. Are the United States under the necessity of investigating, or taking any notice of the fact of slavery, either for the purpose of excusing the man himself from the tax, or of throwing it upon the person claiming to be his owner? Must the government of the United States find a man's pretended owner, or only the man himself, before they can tax him? Clearly the United States are not bound to tax any one but the individual himself, or to hold any other person responsible for the tax. Any other principle would enable the State governments to defeat any tax of this kind levied by the United States. Yet a man's liability to be held personally responsible for the payment of a tax, levied upon himself by the government of the United States, is inconsistent with the idea that the government is bound to recognize him as not having the ownership of his own person.
Second. "The Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
This power is held, by the Supreme Court of the United States, to be an exclusive one in the general government; and it obviously must be so, to be effectual for if the States could also interfere to regulate it, the States could at pleasure defeat the regulations of Congress.
Congress, then, having the exclusive power of regulating this commerce, they only (if anybody) can say who may, and who may not, carry it on; and probably even they have no power to discriminate arbitrarily between individuals. But, in no event, have the State governments any right to say who may, or who may not, carry on "commerce with foreign nations," or "among the several States," or "with the Indian tribes." Every individual naturally competent to make contracts whom the State laws declare to be a slave, probably has, and certainly may have, under the regulations of Congress, as perfect a right to carry on "commerce with foreign nations, and among the several States, and with the Indian tribes," as any other citizen of the United States can have "anything in the constitution or laws of any State to the contrary notwithstanding." Yet this right of carrying on commerce is a right entirely inconsistent with the idea of a man's being a slave.
Again. It is a principle of law that the right of traffic is a natural right, and that all commerce (that is intrinsically innocent) [*96] is therefore lawful, except what is prohibited by positive legislation. Traffic with the slaves, either by people of foreign nations or by people belonging to other States than the slaves, has never (so far as I know) been prohibited by Congress, which is the only government (if any) that has power to prohibit it. Traffic with the slaves is therefore as lawful at this moment, under the constitution of the United States, as is traffic with their masters; and this fact is entirely inconsistent with the idea that their bondage is constitutional.
Third. "The Congress shall have power to establish post offices and post roads."
Who, but Congress, have any right to say who may send, or receive letters by the United States posts? Certainly no one. They have undoubted authority to permit any one to send and receive letters by their posts " anything in the constitutions or laws of the States to the contrary notwithstanding." Yet the right to send and receive letters by post, is a right inconsistent with the idea of a man's being a slave.
Fourth. "The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
Suppose a man, whom a State may pretend to call a slave, should make an invention or discovery Congress have undoubted power to secure to such individual himself, by patent, the "exclusive" (mark the word) the "exclusive right" to his invention or discovery. But does not this "exclusive right" in the inventor himself, exclude the right of any man, who, under a State law, may claim to be the owner of the inventor? Certainly it does. Yet the slave code says that whatever is a slave's 'is his owner's. This power, then, on the part of Congress, to secure to an individual the exclusive right to his inventions and discoveries, is a power inconsistent with the idea that that individual himself, and all he may possess, are the property of another.
Fifth. "The Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;" also "to raise and support armies; and "to provide and maintain a navy."
Have not Congress authority, under these powers, to enlist soldiers and sailors, by contract with themselves, and to pay them [*97] their wages, grant them pensions, and secure their wages and pensions to their own use, without asking the permission either of the State governments, or of any individuals whom the State governments may see fit to recognize as the owners of such soldiers and sailors? Certainly they have, in defiance of all State laws and constitutions whatsoever; and they have already asserted that principle by enacting that pensions, paid by the United States to their soldiers, shall not be liable to be taken for debt, under the laws of the States. Have they not authority also to grant letters of marque and reprisal, and to secure the prizes, to a ship's crew of blacks, as well as of whites? To those whom the State governments call slaves, as well as to those whom the State governments call free? Have not Congress authority to make contracts, for the defence of the nation, with any and all the inhabitants of the nation, who may be willing to perform the service? Or are they obliged first to ask and obtain the consent of those private individuals who may pretend to own the inhabitants of this nation? Undoubtedly Congress have the power to contract with whom they please, and to secure wages and pensions to such individuals, in contempt of all State authority. Yet this power is inconsistent with the idea that the constitution recognizes or sanctions the legality of slavery.
Sixth. "The Congress shall have power to provide for the organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress." Also "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions."
Have not Congress, under these powers, as undoubted authority to enroll in the militia, and "arm" those whom the States call slaves, and authorize them always to keep their arms by them, even when not on duty, (that they may at all times be ready to be "called forth" "to execute the laws of the Union, suppress insurrections, and repel invasions,") as they hove thus to enroll and arm those whom the States call free? Can the State governments determine who may, and who may not, compose the militia of the "United States?"
Look, too, at this power, in connection with the second amendment to the constitution; which is in these words: [*98]
"A well regulated militia being necessary to the security of free State, the right of the people to keep and bear arms shall not be, infringed."
These provisions obviously recognize the natural right of all men "to keep and bear arms" for their personal defence; and prohibit both Congress and the State governments from infringing the right of "the people " that is, of any of the people to do so; and more especially of any whom Congress have power to include in their militia. This right of a man "to keep and bear arms," is a right palpably inconsistent with the idea of his being a slave. Yet the right is secured as effectually to those whom the States presume to call slaves, as to any whom the States condescend to acknowledge free.
Under this provision any man has a right either to give or sell arms to those persons whom the States call slaves; and there is no constitutional power, in either the national or State governments, that can punish him for so doing; or that can take those arms from the slaves; or that can make it criminal for the slaves to use them, if, from the inefficiency of the laws, it should become necessary for them to do so, in defence of their own lives or liberties; for this constitutional right to keep arms implies the constitutional right to use them, if need be, for the defence of one's liberty or life.
Seventh. The constitution of the United States declares that "no State shall pass any law impairing the obligation of contracts."
"The obligation of contracts," here spoken of, is, of necessity, the natural obligation; for that is the only real or true obligation that any contracts can have. It is also the only obligation, which courts recognize in any case, except where legislatures arbitrarily interfere to impair it. But the prohibition of the constitution is upon the States passing any law whatever that shall impair the natural obligation of men's contracts. Yet, if slave laws were constitutional, they would effectually impair the obligation of all contracts entered into by those who are made slaves; for the slave laws must necessarily hold that all a slave's contracts are void.
This prohibition upon the States to pass any law impairing the natural obligation of men's contracts, implies that all men have a constitutional right to enter into all contracts that have a natural obligation. It therefore secures the constitutional right of all men to enter into such contracts, and to have them respected by the State governments. Yet this constitutional right of all men to [*99] enter into all contracts that have a natural obligation, and to have those contracts recognized by law as valid, is a right plainly inconsistent with the idea that men can constitutionally be made slaves.
This provision, therefore, absolutely prohibits the passage of slave laws, because laws that make men slaves must necessarily impair the obligation of all their contracts.
Eight. Persons, whom some of the State governments recognize as slaves, are made eligible, by the constitution of the United States, to the office of President of the United States. The constitutional provision on this subject is this:
"No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President; neither shall any person be eligible to that office, who shall not have attained the age of thirtyfive years, and been fourteen years a resident of the United States." According to this provision, all "persons," fn25 who have resided [*100] within the United States fourteen years, have attained the age of thirtyfive years, and are either natural born citizens, or were citizens of the United States at the time of the adoption of the constitution, are eligible to the office of President. No other qualifications than these being required by the constitution, no others can be legally demanded. The only question, then, that can arise, is as to the word "citizen." Who are the persons that come within this definition, as here used? The clause itself divides them into two classes, to wit, the "natural born," and those who were "citizens of the United States at the time of the adoption of the constitution." In regard to this latter class, it has before been shown, from the preamble to the constitution, that all who were "people of the United States" (that is, permanent inhabitants) at the time the constitution was adopted, were made citizens by it. And this clause, describing those eligible to the office of President, implies the same thing. This is evident; for it speaks of those who were "citizens of the United States at the time of the adoption of the constitution." Now there clearly could have been no "citizens of the United States, at the time of the adoption of the constitution," unless they were made so by the constitution itself; for there were no "citizens of the United States" before the adoption of the constitution. The confederation had no citizens. It [*101] was a mere league between the State governments. The separate States belonging to the confederacy had each their own citizens respectively. But the confederation itself, as such, had no citizens. There were, therefore, no "citizens of the United States," (but only citizens of the respective States,) before the adoption of the constitution. Yet this clause asserts that immediately on the adoption, or "at the time of the adoption of this constitution," there were "citizens of the United States." Those, then, who were "citizens of the United States at the time of the adoption of the constitution," were necessarily those, and only those, who had been made so by the adoption of the constitution; because they could have become citizens at that precise "time" in no other way. If, then, any persons were made citizens by the adoption of the constitution, who were the individuals that were thus made citizens? They were "the people of the United States," of course as the preamble to the constitution virtually asserts. And if "the people of the United States" were made citizens by the adoption of the constitution, then all "the people of the United States" were necessarily made citizens by it for no discrimination is made by the constitution between different individuals. "people of the United States " and there is therefore no means of determining who were made citizens by the adoption of the constitution, unless all "the people of the United States" were so made. Any "person," then, who was one of "the people of the United States .... at the time of the adoption of this constitution," and who is thirtyfive, years old, and has resided fourteen years within the United States, is eligible to the office of President of the United States. And if every such person be eligible, under the constitution, to the office of President of the United States, the constitution certainly does not recognize them as slaves.
The other class of citizens, mentioned as being eligible to the office of President, consists of the "natural born citizens." Here is an implied assertion that natural birth in the country gives the right of citizenship. And if it gives it to one, it necessarily gives it to all for no discrimination is made; and if all persons born in the country are not entitled to citizenship, the constitution has given us no test by which to determine who of them are entitled to it.
Every person, then, born in the country, and that shall have attained the age of thirtyfive years, and been fourteen years a resident within the United States, is eligible to the office of Presi [*102] dent. And if eligible to that office, the constitution certainly does not recognize him as a slave.
Persons, who are "citizens" of the United States, according to the foregoing definitions, are also eligible to the offices of representative and senator of the United States; and therefore cannot be slaves.
Ninth. The constitution declares that "the trial of all crimes, except in cases of impeachment, shall be by jury." Also that "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."
It is obvious that slaves, if we have any, might "levy war against the United States," and might also "adhere to their enemies, giving them aid and comfort." It may, however, be doubted whether they could commit the crime of treason for treason implies a breach of fidelity, trust or allegiance, where fidelity, trust or allegiance is due. And it is very clear that slaves could owe allegiance, trust or fidelity, neither to the United States, nor to the State governments; for allegiance is due to a government only from those who are protected by it. Slaves could owe to our governments nothing but resistance and destruction. If, therefore, they were to levy war against the United States, they might not perhaps be liable to the technical charge of treason; although there would, in reality, be as much treason in their act, as there would of any other crime for there would, in truth, be neither legal nor moral crime of any kind in it. Still, the government would be compelled, in order to protect itself against them, to charge them with some crime or other treason, murder, or something else. And this charge, whatever it might be, would have to be tried by a jury. And what (in criminal cases) is the "trial by jury?" It is a trial, both of the law and the fact, by the "peers" or equals, of the person tried. Who are the "peers" of a slave? None, evidently, but slaves. If, then, the constitution recognizes any such class of persons, in this country, as slaves, it would follow that for any crime committed by them against the United States, they must be tried, both on the law and the facts, by a jury of slaves. The result of such trials we can readily imagine.
Does this look as if the constitution guarantied, or even recognized the legality of slavery?
Tenth. The constitution declares that "The privilege of the [*103] writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."
The privilege of this writ, wherever it is allowed, is of itself sufficient to make slavery impossible and illegal. The object and prerogative of this writ are to secure to all persons their natural right to personal liberty, against all restraint except from the government; and even against restraints by the government itself, unless they are imposed in conformity with established general laws, and upon the charge of some legal offence or liability. It accordingly liberates alt who are held in custody against their will, (whether by individuals or the government,) unless they are held on some formal writ or process, authorized by law, issued by the government, according to established principles, and charging the person held by it with some legal offence or liability. The principle of the writ seems to be, that no one shall be restrained of his natural liberty, unless these three things conspire; 1st, that the restraint be imposed by special command of the government; 2d, that there be a general law authorizing restraints for specific causes; and, 3d, that the government, previously to issuing process for restraining any particular individual, shall itself, by its proper authorities, take express cognizance of, and inquire cautiously into the facts of each case, and ascertain, by reasonable evidence, that the individual has brought himself within the liabilities of the general law. All these things the writ of habeas corpus secures to be done, before it will suffer a man to be restrained of his liberty; for the writ is a mandate to the person holding another in custody, commanding him to bring his prisoner before the court, and show the authority by which he holds him. Unless he then exhibit a legal precept, warrant or writ, issued by, and bearing the seal of the government, specifying a legal ground for restraining the prisoner, and authorizing or requiring him to hold him in custody, he will be ordered to let him go free. Hence all keepers of prisons, in order to hold their prisoners against the authority of this writ, are required, in the case of each prisoner, to have a written precept or order, hearing the seal of the government, and issued by the proper authority, particularly describing the prisoner by name or otherwise, and setting forth the legal grounds of his imprisonment, and requiring the keeper of the prison to hold him in his custody.
Now the master does not hold his slave in custody by virtue of any formal or legal writ or process, either authorized by law, or [*104] issued by the government, or that charges the slave with any legal offence or liability. A slave is incapable of incurring any legal liability, or obligation to his master. And the government could, with no more consistency, grant a writ or process to the master, to enable him to hold his slave, than it could to enable him to hold his horse. It simply recognizes his right of property in his slave, and then leaves him at liberty to hold him by brute force, if he can, as he holds his ox, or his horse and not otherwise. If the slave escape, or refuse to labor, the slave code no more authorizes the government to issue legal process against the slave, to authorize the master to catch him, or compel him to labor, than it does against a horse for the same purpose. The slave is held simply as property, by individual force, without legal process. But the writ of habeas corpus acknowledges no such principle as the right of property in man. If it did, it would be perfectly impotent in all cases whatsoever; because it is a principle of law, in regard to property, that simple possession is prima facie evidence of ownership; and therefore any man, who was holding another in custody, could defeat the writ by pleading that he owned his prisoner, and by giving, as proof of ownership, the simple fact that he was in possession of him. If, therefore, the writ of habeas corpus did not, of itself, involve a denial of the right of property in man, the fact stated in it, that one man was holding another in custody, would be prima facie evidence that he owned him, and had a right to hold him; and the writ would therefore carry an absurdity on its face.
The writ of habeas corpus, then, necessarily denies the right of property in man. And the constitution, by declaring, without any discrimination of persons, that "the privilege of this writ shall not be suspended," that is, shall not be denied to any human being has declared that, under the constitution, there can be no right of property in man.
This writ was unquestionably intended as a great constitutional guaranty of personal liberty. But unless it denies the right of property in man, it in reality affords no protection to any of us against being made slaves. If it does deny the right of property in man, the slave is entitled to the privilege of the writ; for he is held in custody by his master, simply on the ground of property.
Mr. Christian, one of Blackstone's editors, says that it is this writ that makes slavery impossible in England. It was on this writ, that Somerset was liberated. The writ, in fact, asserts, as a [*105] great constitutional principle, the natural right of personal liberty. And the privilege of the writ is not confined to citizens, but extends to all human beings.fn26 And it is probably the only absolute guaranty, that our national constitution gives to foreigners and aliens, that they shall not, on their arrival here, be enslaved by those of our State governments that exhibit such propensities for enslaving their fellowmen. For this purpose, it is a perfect guaranty to people who come here from any part of the world. And if it be such a guaranty to foreigners and aliens, is it no guaranty to those born under the constitution? Especially when the constitution makes no discrimination of persons?
Eleventh. "The United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion; and, on application of the legislature, or of the executive, (when the legislature cannot be convened,) against domestic violence."
Mark the strength and explicitness of the first clause of this section, to wit, "The United States shall guaranty to every State in this Union a republican form of government." Mark also especially that this guaranty is one of liberty, and not of slavery.
We have all of us heretofore been compelled to hear, from individuals of slaveholding principles, many arrogant and bombastic assertions, touching the constitutional "guaranties" given to slavery; and persons, who are in the habit of taking their constitutional law from other men's mouths, instead of looking at the constitution for themselves, have probably been led to imagine that the constitution had really given such guaranties in some explicit and tangible form. We have, nevertheless, seen that all those pretended guaranties are at most nothing but certain vague hints, insinuations, ciphers and innuendoes, that are imagined to be covered up under language which legally means nothing of the kind. But, in the clause now cited, we do have an explicit and peremptory "guaranty," depending upon no implications, inferences or conjectures, and couched in no uncertain or ambiguous terms. And what is this guaranty? Is it a guaranty of slavery? No. It is a guaranty of something flatly incompatible with [*106] slavery: a guaranty of "a republican form of government to every State in this Union."
And what is "a republican form of government?" It is where the government is a commonwealth the property of the public, of the mass of the people, or of the entire people. It is where the government is made up of, and controlled by the combined will and power of the public, or mass of the people and where, of natural consequence, it will have, for its object, the protection of the rights of all. It is indispensable to a republican form of government, that the public, the mass of the people, if not the entire people, participate in the grant of powers to the government, and in the protection afforded by the government. It is impossible, therefore, that a government, under which any considerable number of the people (if indeed any number of the people, are disfranchised and enslaved, can be a republic. A slave government is an oligarchy; and one too of the most arbitrary and criminal character.
Strange that men, who have eyes capable of discovering in the constitution so many covert, implied and insinuated guaranties of crime and slavery, should be blind to the legal import of so open, explicit and peremptory a guaranty of freedom, equality and right.
Even if there had really been, in the constitution, two such contradictory guaranties, as one of liberty or republicanism in every State of the Union, and another of slavery in every State where one portion of the people might succeed in enslaving the rest, one of these guaranties must have given way to the other for, being plainly inconsistent with each other, they could not have stood together. And it might safely have been left either to legal or to moral rules to determine which of the two should prevailwhether a provision to perpetuate slavery should triumph over a guaranty of freedom.
But it is constantly asserted, in substance, that there is "no propriety" in the general government's interfering in the local governments of the States. Those who make this assertion appear to regard a State as a single individual, capable of managing his own affairs, and of course unwilling to tolerate the intermeddling of others. But a State is not an individual. It is made up of large numbers of individuals, each and all of whom, amid the intestine mutations and strifes to which States are subject, are liable, at some time or other, to be trampled upon by the strongest party, and may therefore reasonably choose to secure, in advance, [*107] some external protection against such emergencies, by making reciprocal contracts with other people similarly exposed in the neighboring States. Such contracts for mutual succor and protection, are perfectly fit and proper for any people who are so situated as to be able to contribute to each other's security. They are as fit and proper as any other political contracts whatever; and are founded on precisely the same principle of combination for mutual defence for what are any of our political contracts and forms of government, but contracts between man and man for mutual protection against those who may conspire to injure either or all of them? But these contracts, fit and proper between all men, are peculiarly appropriate to those, who, while they are members of various local and subordinate associations, are, at the same time, united for specific purposes under one general government. Such a mutual contract, between the people of all the States, is contained in this clause of the constitution. And it gives to them all an additional guaranty for their liberties.
Those who object to this guaranty, however, choose to overlook all these considerations, and then appear to imagine that their notions of "propriety" on this point, can effectually expunge the guaranty itself from the constitution. In indulging this fancy, however, they undoubtedly overrate the legal, and perhaps also the moral effect of such superlative fastidiousness; for even if there were "no propriety" in the interference of the general government to maintain a republican form of government in the States, still, the unequivocal pledge to that effect, given in the constitution, would nevertheless remain an irresistible rebutter to the allegation that the constitution intended to guaranty its opposite, slavery, an oligarchy, or a despotism. It would, therefore, entirely forbid all those inferences and implications, drawn by slaveholders, from those other phrases, which they quote as guaranties of slavery. fn27[*108]
But the "propriety," and not only the propriety, but the necessity of this guaranty, may be maintained on still other grounds.
One of these grounds is, that it would be impossible, consistently with the other provisions of the constitution, that the general government itself could be republican, unless the State governments were republican also. For example. The constitution provides, in regard to the choice of' congressional representatives that "the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.'' It was indispensable to the internal quiet of each State, that the same body of electors, who should participate in the suffrage of the State governments, should participate also in the suffrage of the national one and vice versa, that those who should participate in the national suffrage, should also participate in that of the State. If the general and State constitutions had each a different body of electors within each State, it would obviously give rise at once to implacable and irreconcilable feuds, that would result in the overthrow of one or the other of the governments within the State. Harmony or inveterate conflict was the only alternative. As conflict would necessarily result in the destruction of one of the governments, harmony was the only mode by which both could be preserved. And this harmony could be secured only by giving to the same body of electors, suffrage in both the governments.
If, then, it was indispensable to the existence and authority of both governments, within the territory of each State, that the same body, and only the same body of electors, that were represented in one of the governments, should be represented in the other, it was clearly indispensable, in order that the national one should be republican, that the State governments should be republican also. Hence the interest which the nation at large have in the republicanism of each of the State governments.
It being necessary that the suffrage under the national government, within each State, should be the same as for the State government, it is apparent that unless the several State governments were all formed on one general plan, or unless the electors of all the States were united in the acknowledgment of some general controlling principle, applicable to both governments, it would be impossible that they could unite in the maintenance of a general government that should act in harmony with the State governments; because the same body of electors, that should sup [*109] port a despotic government in the State, could not consistently or cordially unite, or even unite at all, in the support of a republican government for the nation. If one portion of the State governments should be republican, like Vermont, where suffrage is open to all and another portion should be oligarchies, like South Carolina, and the other slave States another portion limited monarchies, like England another portion ecclesiastical, like that of the Pope of Rome, or that of the ancient Jews and another portion absolute despotisms, like that of Nicholas, in Russia, or that of Francis, in Paraguay, and the same body, and only the same body, of electors, that sustained each of these governments at home, should be represented in the national government, each State would send into the national legislature the representatives of its own peculiar system of government; and the national legislature, instead of being composed of the representatives of any one theory, or principle of government, would be made up of the representatives of all the various theories of government that prevailed in the different States from the extreme of democracy to the extreme of despotism. And each of these various representatives would be obliged to carry his local principles into the national legislature, else he could not retain the confidence of his peculiar constituents. The consequence would be, that the national legislature would present the spectacle of a perfect Babel of discordant tongues, elements, passions, interests and purposes, instead of an assembly, united for the accomplishment of any agreed or distinct object.
Without some distinct and agreed object as a bond of union it would obviously be impracticable for any general union of the whole people to subsist; and that bond of union, whatever it be, must also harmonize with the principles of each of the State governments, else there would be a collision between the general and state governments.
Now the great bond of union, agreed upon in the general government, was "the rights of man " expressed in the national constitution by the terms "liberty and justice." What other bond could have been agreed upon? On what other principle of government could they all have united? Could they have united to sustain the divine right of kings? The feudal privileges of nobles? Or the supremacy of the Christian, Mahometan, or any other church? No. They all denied the divine right of kings, and the feudal rights of nobles; and they were of all creeds in [*110] religion. But they were agreed that all men had certain natural, inherent, essential and inalienable rights, among which were life, liberty, and the pursuit of happiness; and that the preservation of these rights was the legitimate purpose of governments among men. They had avowed this principle before the world, had fought for it, and successfully defended it, against the mightiest power in the world. They had filled the world with its glory; and it, in turn, had filled the world with theirs. It had also gathered, and was then gathering, choice spirits, and large numbers of the oppressed from other nations unto them. And this principle in which were involved the safety, interests and rights of each and every one of "the people," who were to unite for the formation of the government now furnished a bond of union, that was at once sufficient, legitimate, consistent, honorable, of universal application, and having more general power over the hearts and heads of all of them, than any other that could be found to hold them together. It comported with their theory of the true objects of government. This principle, therefore, they adopted as the cornerstone of their national government; and, as a matter of necessity, all other things, on which this new government was in any degree to depend, or which was to depend in any degree upon this government, were then made to conform to this principle. Hence the propriety of the power given to the general government, of "guarantying to every State in the Union a republican form of government." Had not this power been given to the general government, the majorities in each State might have converted the State governments into oligarchies, aristocracies, monarchies or despotisms, that should not only have trampled upon the minorities, and defeated their enjoyment of the national constitution, but also introduced such factions and feuds into the national government as would have distracted its councils, and prostrated its power.
But there were also motives of a pecuniary and social, as well as political nature, that made it proper that the nation should guaranty to the States a republican form of government.
Commerce was to be established between the people of the different States. The commerce of a free people is many times more valuable than that of slaves. Freemen produce and consume vastly more than slaves. They have therefore more to buy and more to sell. Hence the free States have a direct pecuniary interest in the civil freedom of all the other States. Commerce [*111] between free and slave states is not reciprocal or equal. Who can measure the increase that would have been made to the industry and prosperity of the free States, if all the slaves in the country had been freemen, with all the wants and energies of freemen? And their masters had had all the thrift, industry and enterprise of men who depend upon their own labor, instead of the labor of slaves, for their prosperity? Great Britain thought it policy to carry on a seven years' war against us principally to secure to herself the control and benefits of the commerce of three millions of people and their posterity. But we now have nearly or quite the same number of slaves within our borders, and yet we think that commerce with them and their posterity is a matter with which we have no concern; that there is "no propriety" in that provision of the national constitution, which requires that the general government which we have invested with the exclusive control of all commerce among the several States should secure to these three millions the right of traffic with their fellowmen, and to their fellowmen the right of traffic with them, against the impertinent usurpations and tyranny of subordinate governments, that have no constitutional right to interfere in the matter.
Again. The slave States, in proportion to their population, contribute nothing like an equal or equitable share to the aggregate of national wealth. It would probably be within the truth to say that, in proportion to numbers, the people of the free States have contributed ten times as much to the national wealth as the people of the slave States. Even for such wealth as the culture of their great staple, cotton, has added to the nation, the south are indebted principally, if not entirely, to the inventive genius of a single northern man. Fn28 The agriculture of the slave States is carried on with rude and clumsy implements; by listless, spiritless and thriftless laborers; and in a manner speedily to wear out the natural fertility of the soil, which fertility slave cultivation seldom or never replaces. The mechanic arts are comparatively dead among them. Invention is utterly dormant. It is doubtful whether either a slave or a slaveholder has ever invented a single important article of laborsaving machinery since the foundation of the government. And they have hardly had the skill or enterprise to apply any of those invented by others. Who can estimate the loss of wealth to the nation from these causes alone? Yet we [*112] of the free States give to the south a share in the incalculable wealth produced by our inventions and laborsaving machinery, our steam engines, and cotton gins, and manufacturing machinery of all sorts, and yet say at the same time that we have no interest, and that there is "no propriety" in the constitutional guaranty of that personal freedom to the people of the south, which would enable them to return us some equivalent in kind.
For the want, too, of an enforcement of this guaranty of a republican form of government to each of the States, the population of the country, by the immigration of foreigners, has no doubt been greatly hindered. Multitudes almost innumerable, who would have come here, either from a love of liberty, or to better their conditions, and given the country the benefit of their talents, industry and wealth, have no doubt been dissuaded or deterred by the hideous tyranny that rides triumphant in one half of the nation, and extends its pestiferous and detested influence over the other half.
Socially, also, we have an interest in the freedom of all the States. We have an interest in free personal intercourse with all the people living under a common government with ourselves. We wish to be free to discuss, with any and all of them, all the principles of liberty and all the interests of humanity. We wish, when we meet a fellowman, to be at liberty to speak freely with him of his and our condition; to be at liberty to do him a service; to advise with him as to the means of improving his condition; and, if need be, to ask a kindness at his hands. But all these things are incompatible with slavery. Is this such a union as we bargained for? Was it "nominated in the bond," that we should be cut off from these the common rights of human nature? If so, point to the line and letter, where it is so written. Neither of them are to be found. But the contrary is expressly guarantied against the power of both the governments, state and national; for the national government is prohibited from passing any law abridging the freedom of speech and the press, and the state governments are prohibited from maintaining any other than a republican form of government, which of course implies the same freedom.
The nation at large have still another interest in the republicanism of each of the States; an interest, too, that is indicated in the same section, in which this republicanism is guarantied. This interest results from the fact that the nation are pledged to "pro [*113] ect" each of the States "against domestic violence." Was there no account taken in reference either to the cost or the principle of this undertaking as to what might be the character of the State governments, which we are thus pledged to defend against the risings of the people? Did we covenant, in this clause, to wage war against the rights of man? Did we pledge ourselves that those, however few, who might ever succeed in getting the government of a State into their hands, should thenceforth be recognized as the legitimate power of the State, and be entitled to the whole force of the general government to aid them in subjecting the remainder of the people to the degradation and injustice of slavery? Or did the nation undertake only to guaranty the preservation of "a republican form of government" against the violence of those who might prove its enemies? The reason of the thing, and the connexion, in which the two provisions stand in the constitution, give the answer.
We have yet another interest still, and that no trivial one, in the republicanism of the State governments; an interest indicated, too, like the one last mentioned, in the very section in which this republicanism is assured. It relates to the defence against invasion. The general government is pledged to defend each of the States against invasion. Is it a thing of no moment, whether we have given such a pledge to free or to slave States? Is there no difference in the cost and hazard of defending one or the other? Is it of no consequence to the expense of life and money, involved in this undertaking, whether the people of the State invaded shah be united, as freemen naturally will be, as one man against the enemy? Or whether, as in slave States, half of them shall be burning to join the enemy, with the purpose of satisfying with blood the long account of wrong that shall have accrued against their oppressors? Did Massachusetts who during the war of the revolution furnished more men for the common defence, than all the six southern States together did she, immediately on the close of that war, pledge herself, as the slave holders would have it, that she would lavish her life in like manner again, for the defence of those whose wickedness and tyranny in peace should necessarily multiply their enemies and make them defenceless in war? If so, on what principle, or for what equivalent, did she do it? Did she not rather take care that the guaranty for a republican government should be inserted in the same paragraph with that for protection against invasion, in order that both the principle [*114] and the extent of the liability she incurred, might distinctly appear.
The nation at large, then, as a political community under the constitution, have both interests and rights, and both of the most vital character, in the republicanism of each of the State governments. The guaranty given by the national constitution, securing such a government to each of the States, is therefore neither officious nor impertinent. On the contrary, this guaranty was a sine qua non to any rational contract of union; and the enforcement of it is equally indispensable, if not to the continuance of the union at all, certainly to its continuance on any terms that are either safe, honorable or equitable for the north.
This guaranty, then, is not idle verbiage. It is full of meaning. And that meaning is not only fatal to slavery itself, but it is fatal also to all those pretences, constructions, surmises and implications, by which it is claimed that the national constitution sanctions, legalizes, or even tolerates slavery.
CHAPTER IX.
THE INTENTIONS OF THE CONVENTION.
The intentions of the framers of the constitution, (if we could have, as we cannot, any legal knowledge of them, except from the words of the constitution,) have nothing to do with fixing the legal meaning of the constitution. That convention were not delegated to adopt or establish a constitution; but only to consult, devise and recommend. The instrument, when it came from their hands, was a mere proposal, having no legal force or authority. It finally derived all its validity and obligation, as a frame of government, from its adoption by the people at large.fn29 Of course the intentions of the people at large are the only ones, that are of any importance to be regarded in determining the legal meaning of the instrument. And their intentions are to be gathered entirely from the words, which they adopted to express them. And their intentions must be presumed to be just what, and only what the words of the instrument legally express. In adopting the consti [*115] tution, the people acted as legislators, in the highest sense in which that word can be applied to human lawgivers. They were establishing a law that was to govern both themselves and their government. And their intentions, like those of other legislators, are to be gathered from the words of their enactments. Such is the dictate of both law and common sense.fn30The instrument had [*116] been reported by their committee, the convention. But the people did not ask this committee what was the legal meaning of the instrument reported. They adopted it, judging for themselves of its legal meaning, as any other legislative body would have done. The people at large had not even an opportunity of consultation with the members of the convention, to ascertain their opinions. And even if they had consulted them, they would not have been bound at all by their opinions. But being unable to consult them, they were compelled to adopt or reject the instrument, on their own judgment of its meaning, without any reference to the opinions of the convention. The instrument, therefore, is now to be regarded as expressing the intentions of the people at large; and not the intentions of the convention, if the convention had any intentions differing from the meaning which the law gives to the words of the instrument.
But why do the partisans of slavery resort to the debates of the convention for evidence that the constitution sanctions slavery? Plainly for no other reason than because the words of the instrument do not sanction it. But can the intentions of that convention, attested only by a mere skeleton of its debates, and not b j any impress upon the instrument itself, add anything to the words, or to the legal meaning of the words of the constitution? Plainly not. Their intentions are of no more consequence, in a legal point of view; than the intentions of any other equal number of the then voters of the country. Besides, as members of the convention, they were not even parties to the instrument; and no evidence of their intentions, at that time, is applicable to the case. They became parties to it only by joining with the rest of the people in its subsequent adoption; and they themselves, equally with the rest of the people, must then be presumed to have adopted its legal meaning, and that alone notwithstanding anything they may have previously said. What absurdity then is it to set up the opinions expressed in the convention, and by a few only of its members, in opposition to the opinions expressed by the whole people of the country, in the constitution itself.
But notwithstanding the opinions expressed, in the convention by some of the members, we are bound, as a matter of law, to presume that the convention itself, in the aggregate, had no intention of sanctioning slavery and why? Because, after all their debates, they agreed upon an instrument that did not sanction it. This was confessedly the result in which all their debates termi- [*117] nated. This instrument is also the only authentic evidence of their intentions. It is subsequent in its date to all the other evidence. It comes to us, also, as none of the other evidence does, signed with their own hands. And is this to be set aside, and the constitution itself to be impeached and destroyed, and free government overturned, on the authority of a few meagre snatches of argument, intent or opinion, uttered by a few only of the members; jotted down by one of them, (Mr. Madison,) merely for his own convenience, or from the suggestions of his own mind; and only reported to us fifty years afterwards by a posthumous publication of his papers? If anything could excite the utter contempt of the people of this nation for the miserable subterfuges, to which the advocates of slavery resort, it would seem that their offering such evidence as this in support of their cause, must do it. And yet these, and such as these mere fragments of evidence, all utterly inadmissible and worthless in their kind, for any legal purpose, constitute the warp and the woof, the very sine qua non of the whole argument for slavery.
Did Mr. Madison, when he took his oath of office, as President of the United States, swear to support these scraps of debate, which he had filed away among his private papers? Or did he swear to support that written instrument, which the people of the country had agreed to, and which was known to them, and to all the world, as the constitution of the United States?fn31 [*118]
But even if the unexpressed intentions, which these notes of debate ascribed to certain members, had been participated in by the whole convention, we should have had no right to hold the people of the country at large responsible for them. This convention sat with closed doors, and it was not until near fifty years after the people had adopted the constitution itself, that these private intentions of the framers authentically transpired. And even now all the evidence disclosed implicates, directly and absolutely, but few of the members not even all from the slaveholding states. The intentions of all the rest, we have a right to presume, concurred with their votes and the words of the instrument; and they had therefore no occasion to express contrary ones in debate.
But suppose that all the members of the convention had participated in these intentions what then? 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 for it the adoption of the people. But if the people should adopt such 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 fifty 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 purpose of its originators?
The members of the convention, as such, were the mere scriveners of the constitution; and their individual purposes, opin [*119] tons or expressions, then uttered in secret cabal, though now revealed, can no more be evidence of the intentions of the lxople who adopted the constitution, than the secret opinions or expressions of the scriveners of any other contract can be offered to prove the intentions of the true parties to such contract. As framers of the constitution, the members of the convention gave to it no validity, meaning, or legal force. They simply drafted it, and offered it, such as it legally might be, to the people for their adoption or rejection. The people, therefore, in adopting it, had no reference whatever to the opinions of the convention. They had no authentic evidence of what those opinions were. They looked simply at the instrument. And they adopted even its legal meaning by a bare majority. If the instrument had contained any tangible sanction of slavery, the people, in some parts of the country certainly, would sooner have had it burned by the hands of the common hangman, than they would have adopted it, and thus sold themselves as pimps to slavery, covered as they were with the scars they had received in fighting the battles of freedom. And the members of the convention knew that such was the feeling of a huge portion of the people; and for that reason, if for no other, riley dared insert in the instrument no legal sanction of slavery. They chose rather to trust to their craft and influence to corrupt the government, (of which they themselves expected to be important members,) after the constitution should have been adopted, rather than ask the necessary authority directly from the people. And the success they have had in corrupting the government, proves that they judged rightly in presuming that the government would be more flexible than the people.
For other reasons, too, the people should not be charged with designing to sanction any of the secret intentions of the convention. When the States sent delegates to the convention, no avowal was made of any intention to give any national sanction to slavery. The articles of confederation had given none; the then existing State constitutions gave none; and it could not have been reasonably anticipated by the people that any would have been either asked for or granted in the new constitution. If such a purpose had been avowed by those who were at the bottom of the movement, the convention would doubtless never have been held. The avowed objects of the convention were of a totally different character. Commercial, industrial and defensive motives were the prominent ones avowed. When, then, the constitution came from [*120] the hands of such a convention, unstained with any legal or tangible sanction of slavery, were the people who, from the nature of the case, could not assemble to draft one for themselves bound either to discard it, or hold themselves responsible for all the secret intentions of those who had drafted it? Had they no power to adopt its legal meaning, and that alone? Unquestionably they had the power; and, as a matter of law, as well as fact, it is equally unquestionable that they exercised it. Nothing else than the constitution, as a legal instrument, was offered to them for their adoption. Nothing else was legally before them that they could adopt. Nothing else, therefore, did they adopt.
This alleged design, on the part of the convention, to sanction slavery, is obviously of no consequence whatever, unless it can be transferred to the people who adopted the constitution. Has any such transfer ever been shown? Nothing of the kind. It may have been known among politicians, and may have found its way into some of the State conventions. But there probably is not a little of evidence in existence, that it was generally known among the mass of the people. And, in the nature of things, it was nearly impossible that it should have been known by them. The national convention had sat with closed doors. Nothing was known of their discussions, except what was personally reported by the members. Even the discussions in the State conventions could not have been known to the people at large; certainly not until after the constitution had been ratified by those conventions. The ratification of the instrument, by those conventions, followed close on the heels of their discussions. The population meanwhile was thinly scattered over the country. The public papers were few, and small, and far between. They could not even make such reports of the discussions of public bodies, as newspapers now do. The consequence must have been that the people at large knew nothing of the intentions of the framers of the constitution, but from its words, until after it was adopted. Nevertheless, it is to be constantly borne in mind, that even if the people had been fully cognizant of those intentions, they would not therefore have adopted them, or become at all responsible for them, so long as the intentions themselves were not incorporated in the instrument. Many selfish, ambitious and criminal purposes, not expressed in the constitution, were undoubtedly intended to be accomplished by one and another of the thousands of unprincipled politicians, that would naturally swarm around the birthplace [*121] and assist at the nativity of a new and splendid government. But the people are not therefore responsible for those purposes; nor are those purposes, therefore, a part of the constitution; nor is its language to be construed with any view to aid their accomplishment.
But even if the people intended to sanction slavery by adopting the intentions of the convention, it is obvious that they, like the convention, intended to use no language that should legally convey that meaning, or that should necessarily convict them of that intention in the eyes of the world. They, at least, had enough of virtuous shame to induce them to conceal this intention under the cover of language, whose legal meaning would enable them always to aver,
"Thou canst not say I did it."
The retention, therefore, that the judiciary should construe certain language into an authority for slavery, when such is not the legal meaning of the language itself, cannot be ascribed to the people, except upon the supposition that the people presumed their judicial tribunals would have so much less of shame than they themselves, as to volunteer to carry out these their secret wishes, by going beyond the words of the constitution they should be sworn to support, and violating all legal rules of construction, and all the free principles of the instrument. It is true that the judiciary, (whether the people intended it or not,) have proved themselves to be thus much, at least, more shameless than the people, or the convention. Yet that is not what ought to have been expected of judicial tribunals. And whether such were really the intention of the convention, or the people, is, at best a matter of conjecture and history, and not of law, nor of any evidence cognizable by any judicial tribunal.
Why should we search at all for the intentions, either of the, convention, or of the people, beyond the words which both the convention and the people have agreed upon to express them? What is the object of written constitutions, and written statutes, and written contracts? Is it not that the meaning of those who make them may be known with the most absolute precision of which language is capable? Is it not to get rid of all the fraud, and uncertainty, and disagreements of oral testimony? Where would be our constitution, if, instead of its being a written instrument, it had been merely agreed upon orally by the members of the convention? And by them only orally reported to the people? And [*122] only this oral report of it had been adopted by the people? And all our evidence of what it really was, had rested upon reports of what Mr. A. and B., members of the convention, had been heard to say? Or upon Mr. Madison's notes of the debates of the convention? Or upon the oral reports made by the several members to their respective constituents, or to the respective State conventions? Or upon flying reports of the opinions which a few individuals, out of the whole body of the people, had formed of it when they adopted it? No two of the members of the convention would probably have agreed in their representations of what the constitution really was. No two of the people would have agreed in their understanding of the constitution when they adopted it. And the consequence would have been that we should really have has no constitution at all. Yet there is as much ground, both in reason and in law, for thus throwing aside the whole of the written instrument, and trusting entirely to these other sources for evidence of what any part of the constitution really is, as there is for throwing aside those particular portions of the written instrument, which bear on slavery, and attempting to supply their place from such evidence as these other sources may chance to furnish. And yet, to throw aside the written instrument, so far as its provisions are prohibitory of slavery, and make a new constitution on that point, out of other testimony, is the only means, confessedly the only means, by which slavery can be made constitutional.
And what is the object of resorting to these flying reports for evidence, on which to change the meaning of the constitution? Is it to change the instrument from a dishonest to an honest one? from an unjust to a just one? No. But directly the reverseand solely that dishonesty and injustice may be carried into effect. A purpose, for which no evidence of any kind whatever could be admitted in a court of justice.
Again. If the principle be admitted, that the meaning of the constitution can be changed on proof being made that the scriveners or framers of it had secret and knavish intentions, which do not appear on the face of the instrument, then perfect license is given to the scriveners of constitutions to contrive any secret scheme of villany they may please, and impose it upon the people as a system of government, under cover of a written instrument that is so plainly honest and just in its terms, that the people readily agree to it. Is such a principle to be admitted in a [*123] country where the people claim the prerogative of establishing their own government, and deny the right of anybody to impose a government upon them, either by force, or fraud, or against their will?
Finally. The constitution is a contract; a written contract, consisting of a certain number of precise words, to which, and to which only, all the parties to it have, in theory, agreed. Manifestly neither this contract, nor the meaning of its words, can be changed, without the consent of all the parties to it. Nor can it be changed on a representation, to be made by any number of them less than the whole, that they intended anything different from what they have said. To change it, on the representation of a part, without the consent of the rest, would be a breach of contract as to all the rest. And to change its legal meaning, without their consent, would be as much a breach of the contract, as to change its words. If there were a single honest man in the nation, who assented, in good faith, to the honest and legal meaning of the constitution, it would be unjust and unlawful towards him to change the meaning of the instrument so as to sanction slavery, even though every other man in the nation should testify that, in agreeing to the constitution, he intended that slavery should be sanctioned. If there were not a single honest man in the nation, who adopted the constitution in good faith, and with the intent that its legal meaning should be carried into effect, its legal meaning would nevertheless remain the same; for no judicial tribunal could lawfully allow the parties to it to come into court and allege their dishonest intentions, and claim that they be substituted for the legal meaning of the words of the instrument.
CHAPTER X.
THE PRACTICE OF THE GOVERNMENT.
The practice of the government, under the constitution, has not altered the legal meaning of the instrument. It means now what it did before it was ratified, when it was first offered to the people for their adoption or rejection. One of the advantages of a written constitution is, that it enables the people to see what its character is before they adopt it; and another is, that it enables them to see [*124] after they have adopted it, whether the government adheres to it, or departs from it. Both these advantages, each of which is indispensable to liberty, would be entirely forfeited, if the legal meaning of a written constitution were one thing when the instrument was offered to the people for their adoption, and could then be made another thing by the government after the people had adopted it.
It is of no consequence, therefore, what meaning the government have placed upon the instrument; but only what meaning they were bound to place upon it from the beginning.
The only question, then, to be decided, is, what was the meaning of the constitution, as a legal instrument, when it was first drawn up, and presented to the people, and before it was adopted by them?
To this question there certainly can be but one answer. There is not room for a doubt or an argument, on that point, in favor of slavery. The instrument itself is palpably a free one throughout, in its language, its principles, and all its provisions. As a legal instrument, there is no trace of slavery in it. It not only does not sanction slavery, but it does not even recognize its existence. More than this, it is palpably and wholly incompatible with slavery. It is also the supreme law of the land, in contempt of any State constitution or law that should attempt to establish slavery.
Such was the character of the constitution when it was offered to the people, and before it was adopted. And if such was its character then, such is its character still. It cannot have been changed by all the errors and perversions, intentional or unintentional, of which the government may have since been guilty.
CHAPTER XI.
THE UNDERSTANDING OF THE PEOPLE.
ALTHOUGH the inquiry may be of no legal importance, it may nevertheless be one pertinent to the subject, whether it be matter of history event to say nothing of legal proof that the people of the country did really understand or believe that the constitution sanctioned slavery? Those who make the assertion are [*125] bound to prove it. The presumption is against them. Where is their contrary history?
They will say that a part of the people were actually slaveholders, and that it is unreasonable to suppose they would have agreed to the constitution, if they had understood it to be a free one.
The answer to this argument is, that the actual slaveholders were few in number compared with the whole people; comprising probably not more than one eighth or one sixth of the voters, and one fortieth or one thirtieth of the whole population. They were so few as to be manifestly incapable of maintaining any separate political organization; or even of holding their slave property, except under the sufferance, toleration and protection of the non-slaveholders. They were compelled, therefore, to agree to any political organization, which the nonslaveholders should determine on. This was at that time the case even in the strongest of the slaveholding States themselves. In all of them, without exception, the slaveholders were either obliged to live, or from choice did live, under free constitutions. They, of course, held their slave property in defiance of their constitutions. They were enabled to do this through the corrupting influence of their wealth and union. Controlling a large proportion of the wealth of their States, their social and political influence was entirely disproportionate to theft numbers. They could act in concert. They could purchase talent by honors, offices and money. Being always united, while the nonslaveholders were divided, they could turn the scale in elections, and fill most of the offices with slaveholders. Many of the nonslaveholders doubtless were poor, dependent and subservient, (as large portions of the nonslaveholders are now in the slaveholding States,) and lent themselves to the support of slavery almost from necessity. By these, and probably by many other influences that we cannot now understand, they were enabled to maintain their hold upon their slave property in defiance of their constitutions. It is even possible that the slaveholders themselves did not choose to have the subject of slavery mentioned in their constitutions; that they were so fully conscious of their power to corrupt and control their governments, that they did not regard any constitutional provision necessary for their security; and that out of mere shame at the criminality of the thing, and its inconsistency with all the principles the country had been fighting for and proclaiming, they did net wish it to be named. [*126]
But whatever may have been the cause of the fact, the fact itself is conspicuous, that from some cause or other, either with the consent of the slaveholders, or in defiance of their power, the constitutions of every one of the thirteen States were at that time free ones.
Now is it not idle and useless to pretend, when even the strongest slaveholding States had free constitutions when not one of the separate States, acting for itself, would have any but a free constitution that the whole thirteen, when acting in unison, should concur in establishing a slaveholding one? The idea is preposterous. The single fact that all the State constitutions were at that time free ones, scatters forever the pretence that the majority of the people of all the States either intended to establish, or could have been induced to establish, any other than a free one for the nation. Of course it scatters also the pretence that they believed or understood that they were establishing any but a free one.
There very probably may have been a general belief among the people, that slavery would for a while live on, on sufferance; that the government, until the nation should have become attached to the constitution, and cemented and consolidated by the habit of union, would be too weak, and too easily corrupted by the innumerable and powerful appliances of slaveholders, to wrestle with and strangle slavery. But to suppose that the nation at large did not look upon the constitution as destined to destroy slavery, whenever its principles should be carried into full effect, is obviously to suppose an intellectual impossibility; for the instrument was plain, and the people had common sense; and those two facts cannot stand together consistently with the idea that there was any general, or even any considerable misunderstanding of its meaning.
CHAPTER XII.
THE STATE CONSTITUTIONS OF 1845.
OF all the State constitutions existing at this time, 1845, (excepting that of Florida, which I have not seen,) not one of them contains provisions that are sufficient, (or that would be sufficient [*127] if not restrained by the constitution of the United States,) to authorize the slavery that exists in the States. The material deficiency in all of them is, that they neither designate, nor give the legislatures any authority to designate the persons, who may be made slaves. Without such a provision, all their other provisions in regard to slaves are nugatory, simply because their application is legally unknown. They would apply as well to whites as to blacks, and would as much authorize the enslavement of whites as of blacks.
We have before seen that none of the State constitutions, that were in existence in 1789, recognized slavery at all. Since that time, four of the old thirteen States, viz., Maryland, North Carolina, South Carolina and Georgia, have altered their constitutions so as to make them recognize slavery; yet not so as to provide for any legal designation of the persons to be made slaves.
The constitution of South Carolina has a provision that implies that some of the slaves, at least, are "negroes ;" but not that all slaves are negroes, nor that all negroes are slaves. The provision, therefore, amounts to nothing for the purposes of a constitutional designation of the persons who may be made slaves.
The constitutions of Tennessee and Louisiana make no direct mention of slaves; and have no provisions in favor of slavery, unless the general one for continuing existing laws in force, be such an one. But both have specific provisions inconsistent with slavery. Both purport to be established by "the people ;" both have provisions for the writ of habeas corpus. Indeed, the constitutions of most of the slave States have provisions for this writ, which, as has been before shown, denies the right of property in man. That of Tennessee declares also "that all courts shall be open, and every man, for an injury done him in his lands, goods. person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." Tennessee also was formerly a part of North Carolina; was set off from her while the constitution of North Carolina was a free one. Of course there has never been any legal slavery in Tennessee.
The constitutions of the States of Kentucky, Missouri, Arkansas, Mississippi, and Alabama, all have provisions about slaves; yet none of them tell us who may be slaves. Some of them indeed provide for the admission into their State of such persons as are slaves under the laws, (which of course means only the [*128] constitutional laws,) of other States. But when we go to those other States, we find that their constitutions have made no designation of the persons who may be made slaves; and therefore we are as far from finding the actual persons of the slaves as we were before.
The principal provision, in the several State constitutions, recognizing slavery, is, in substance, this, that the legislature shall have no power to emancipate slaves without the consent of their owners, or without making compensation. But this provision is of no avail to legalize slavery, for slavery must be constitutionally established, before there can be any legal slaves to be emancipated; and it cannot be established without describing the persons who may be made slaves.
Kentucky was originally a part of Virginia, and derived her slaves from Virginia. As the constitution of Virginia was always a free one, it gave no authority for slavery in that part of the State which is now Kentucky. Of course Kentucky never had any legal slavery.
Slavery was positively prohibited in all the States included in the Louisiana purchase, by the third article of the treaty of cession which is in these words :m
Art. 3. "The inhabitants" (that is, all the inhabitants,) "of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the federal constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and, in the mean time, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."
The cession of Florida to the United States was made on the same terms. The words of the treaty, on this point are as follows:
"Art. 6. The inhabitants of the territories, which his Catholic majesty cedes to the United States by this treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the federal constitution, and admitted to the enjoyment of all the privileges, rights and immunities of the citizens of the United States."
To allow any of the "inhabitants," included in those treaties, to be held as slaves, or denied the rights of citizenship under the United States Constitution, is a plain breach of the treaties. [*129]
The constitutions of some of the slave States have provisions like this, viz., that all laws previously in force, shall remain in force until repealed, unless repugnant to this constitution. But I think there is no instance, in which the slave acts, then on their statute books, could be perpetuated by this provision and for two reasons; 1st. These slave acts were previously unconstitutional, and therefore were not, legally speaking, "laws in force''. Every constitution, I think, that has this provision, has one or more other provisions that are "repugnant" to the slave acts.
CHAPTER XIII.
THE CHILDREN OF SLAVES ARE BORN FREE.
THE idea that the children of slaves are necessarily born slaves, or that they necessarily follow that natural law of property, which gives the natural increase of property to the owner of the original stock, is an erroneous one.
It is a principle of natural law in regard to property, that a calf belongs to the owner of the cow that bore it; fruit to the owner of the tree or vine on which it grew; and so on. But the principle of natural law, which makes a calf belong to the owner of the cow, does not make the child of a slave belong to the owner of the slave and why? Simply because both cow and calf are naturally subjects of property; while neither men nor children are naturally subjects of property. The law of nature gives no aid to anything inconsistent with itself. It therefore gives no aid to the transmission of property in man while it does give aid to the transmission of property in other animals and in things.
Brute animals and things being naturally subjects of property, there are obvious reasons why the natural increase should belong to the owner of the original stock. But men, not being naturally subjects of property, the law of nature will not transmit any right of property acquired in violation of her own authority. The law [*130] of nature denies all rights not derived from herself. Of course she cannot perpetuate or transmit such rights if rights they can called.
One important reason why a calf belongs to the owner of the cow that bore it, is, that there is no principle of natural law that can be opposed to that ownership. For the calf is naturally a subject of property, and if it were not given to the owner of the cow, it would be lawful for any other person to assume the ownership. No wrong would be done to the animal by so doing. But as man is not naturally a subject of property, and as each separate individual is, on principles of natural law, entitled to the control of his own person, it is as much a wrong, and as much a violation of natural law, to make a slave of the child of a slave, as to make a slave of any other person. The natural rights of the child to the control of his own person, rise up, from the moment of his birth, in opposition to the transmission to him of any ownership, which, in violation of natural law, has been asserted to the parent.
Natural law may be overborne by arbitrary institutions; but she will never aid or perpetuate them. For her to do so, would be to resist, and even deny her own authority. It would present the case of a principle warring against and overcoming itself. Instead of this, she asserts her own authority on the first opportunity. The moment the arbitrary law expires by its own limitation, natural law resumes her reign. If, therefore, the government declare A to be a slave, natural law may be practically overborne by this arbitrary authority; but she will not herself perpetuate it beyond the person of A for that would be acting in contradiction to herself. She will therefore suffer this arbitrary authority to expend itself on the person of A, according to the letter of the arbitrary law: but she will assert her own authority in favor of the child of A, to whom the letter of the law enslaving A, does not apply.
Slavery is a wrong to each individual enslaved; and not merely to the first of a series. Natural law, therefore, as much forbids the enslaving of the child, as if the wrong of enslaving the parent had never been perpetrated.
Slavery, then, is an arbitrary institution throughout. It depends from first to last, upon the letter of the arbitrary law. Natural law gives it no aid, no extension, no new application, under any circumstances whatever. Unless, therefore, the letter of the arbi [*131] trary law explicitly authorize the enslavement of the child, the child is born free, though the parent were a slave.
If the views that have already been taken of our written constitutions, be correct, no parent has ever yet been legally enslaved in this country; and of course no child. If, however, any one thinks he can place his finger upon any constitutional law, that has enslaved a parent, let him follow that law, and see whether it also expressly authorized the enslavement of the child. If it did not, the child would be free.
It is no new principle that the child of a slave would be born free, but for an express law to the contrary. Some of the slave codes admit the principle for they have special provisions that the child shall follow the condition of the mother; thus virtually admitting that, but for such a provision, the child would be free, though the mother were a slave.
Under the constitutions of the States and the United States, it requires as explicit and plenary constitutional authority, to make slaves of the children of slaves, as it would to make slaves of anybody else. Is there, in any of the constitutions of this country, any general authority given to the governments, to make slaves of whom they please? No one will pretend it. Is there, then, any particular authority for making slaves of the children of those, who have previously been held in slavery? If there be, let the advocates of slavery point it out. If there be no such authority all their statutes declaring that the children of slaves shall follow the condition of their mothers, are unconstitutional and void; and those children are free by force of the law of nature.
This law of nature, that all men are born free, was recognized by this country in the Declaration of Independence. But it was no new principle then. Justinian says, "Captivity and servitude are both contrary to the law of nature; for by that law all men are born free." But the principle was not new with Justinian; it exists in the nature of man, and is as old as man and the race of man generally, has acknowledged it. The exceptions have been special; the rule general.
The constitution of the United States recognizes the principle that all men are born free; for it recognizes the principle that natural birth in the country gives citizenshipfn33 which of course [*132] implies freedom. And no exception is made to the rule. Of course all born in the country since the adoption of the constitution of the United States, have been born free, whether there were, or were not any legal slaves in the country before that time.
Even the provisions, in the several State constitutions, that the legislatures shall not emancipate slaves, would, if allowed their full effect, unrestrained by the constitution of the United States, hold in slavery only those who were then slaves; it would do nothing towards enslaving their children, and would give the legislatures no authority to enslave them.
It is clear, therefore, that, on this principle alone, slavery would now be extinct in this country, unless there should be an exception of a few aged persons.
UNCONSTITUTIONALITY OF SLAVERY.
PART SECOND.
CHAPTER XIV.
THE DEFINITION OF LAW.
IT has been alleged, by way of objection to the definition of law given in chapter first, that under it the law would be uncertain, and government impracticable. Directly the opposite of both these allegations is true. Let us see.
1. Natural law, so far from being uncertain, when compared with statutory and constitutional law, is the only thing that gives any certainty at all to a very large portion of our statutory and constitutional law. The reason is this. The words, in which statutes and constitutions are written, are susceptible of so many different meanings, meanings widely different from, often directly opposite to, each other, in their bearing upon men's rights, that, unless there were some rule of interpretation for determining which of these various and opposite meanings are the true ones, there could be no certainty at all as to the meaning of the statutes and constitutions themselves. Judges could make almost anything they should please out of them. Hence the necessity of a rule of interpretation. And this rule is, that the language of statutes and constitutions shall be construed, as nearly as possible, consistently with natural law.
The rule assumes, what is true, that natural law is a thing certain in itself; also that it is capable of being learned. It assumes, furthermore, that it actually is understood by the legislators and judges who make and interpret the written law. Of necessity, therefore, it assumes further, that they (the legislators and judges) are incompetent to make and interpret the written law, unless they previously understand the natural law applicable to the [*138] same subject. It also assumes that the people must understand the natural law, before they can understand the written law.
It is a principle perfectly familiar to lawyers, and one that must be perfectly obvious to every other man that will reflect a moment, that, as a general rule, no one can know what the written law is, until he knows what it ought to be; that men are liable to be constantly misled by the various and conflicting senses of the same words, unless they perceive the true legal sense in which the words ought to be taken. And this true legal sense is the sense that is most nearly consistent with natural law of any that the words can be made to bear, consistently with the laws of language, and appropriately to the subjects to which they are applied.
Though the words contain the law, the words themselves are not the law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and different combinations of senses, in which each and all the words were capable of being taken.
Take, for example, the Constitution of the United States. By adopting one or another sense of the single word "free," the whole instrument is changed. Yet, the word free is capable of some ten or twenty different senses. So that, by changing the sense of that single word, some ten or twenty different constitutions could be made out of the same written instrument. But there are, we will suppose, a thousand other words in the constitution, each of which is capable of from two to ten different senses. So that, by changing the sense of only a single word at a time, several thousands of different constitutions would be made. But this is not all. Variations could also be made by changing the senses of two or more words at a time, and these variations could be run through all the changes and combinations of senses that these thousand words are capable of. We see, then, that it is no more than a literal truth, that out of that single instrument, as it now stands, without altering the location of a single word, might be formed, by construction and interpretation, more different constitutions than figures can well estimate.
But each written law, in order to be a law, must be taken only m some one definite and distinct sense; and that definite and distinct sense must be selected from the almost infinite variety of senses which its words are capable of. How is this selection to [*139] be made? It can be only by the aid of that perception of natural law, or natural justice, which men naturally possess.
Such, then, is the comparative certainty of the natural and the written law. Nearly all the certainty there is in the latter, so far as it relates to principles, is based upon, and derived from, the still greater certainty of the former in fact, nearly all the uncertainty of the laws under which we live, which are a mixture of natural and written laws, arises from the difficulty of construing, or, rather, from the facility of misconstruing, the written law. While natural law has nearly or quite the same certainty as mathematics. On this point, Sir William Jones, one of the most learned judges that have ever lived, learned in Asiatic as well as European law, says, and the fact should be kept forever in mind, as one of the most important of all truths : "It is pleasing to remark the similarity, or, rather, the identity of those conclusions which pure, unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.'' fn34 In short, the simple fact that the written law must be interpreted by the natural, is, of itself, a sufficient confession of the superior certainty of the latter.
The written law, then, even where it can be construed consistently with the natural, introduces labor and obscurity, instead of shutting them out. And this must always be the case, because words do not create ideas, but only recall them; and the same word may recall many different ideas. For this reason, nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another. This is owing to the imperfection of language, and the different senses, meanings, and shades of meaning, which different individuals attach to the same words, in the same circumstances.
Where the written law cannot be construed consistently with the natural, there is no reason why it should ever be enacted at all. It may, indeed, be sufficiently plain and certain to be easily understood; but its certainty and plainness are but a poor compen [*140] sation for its injustice. Doubtless a law forbidding men to drink water, on pain of death, might be made so intelligible as to cut off all discussion as to its meaning; but would the intelligibleness of such a law be any equivalent for the right to drink water? The principle is the same in regard to all unjust laws. Few persons could reasonably feel compensated for the arbitrary destruction of their rights, by having the order for their destruction made known beforehand, in terms so distinct and unequivocal as to admit of neither mistake nor evasion. Yet this is all the compensation that such laws offer.
Whether, therefore, written laws correspond with, or differ from, the natural, they are to be condemned. In the first case, they are useless repetitions, introducing labor and obscurity. In the latter case, they are positive violations of men's rights.
There would be substantially the same reason in enacting mathematics by statute, that there is in enacting natural law. Whenever the natural law is sufficiently certain to all men's minds to justify its being enacted, it is sufficiently certain to need no enactment. On the other hand, until it be thus certain, there is danger of doing injustice by enacting it; it should, therefore, be left open to be discussed by anybody who may be disposed to question it, and to be judged of by the proper tribunal, the judiciary. fn36
It is not necessary that legislators should enact natural law in order that it may be known to the people, because that would be presuming that the legislators already understand it better than the people, a fact of which I am not aware that they have ever heretofore given any very satisfactory evidence. The same sources of knowledge on the subject, are open to the people, that are open to the legislators, and the people must be presumed to know it as welt as they. fn37 [*141]
2. But it is said further, that government is not practicable under this theory of natural law. If by this is meant only that government cannot have the same arbitrary and undisputed supremacy over men's rights, as under other systems the same absolute [*142] authority to do injustice, or to maintain justice, at its pleasurethe allegation is of course true; and it is precisely that, that constitutes the merits of the system. But if anything more than that is meant, it is untrue. The theory presents no obstacle to the use of all just means for the maintenance of justice; and this is all the power that government ought ever to have. It is all the power that it can have, consistently with the rights of those on whom it is to operate. To say that such a government is not practicable, is equivalent to saying that no governments are practicable but arbitrary ones; none but those that are licensed to do injustice, as well as to maintain justice. If these latter governments only are practicable, it is time that all men knew it, in order that those who are to be made victims may stand on their defence, instead of being cheated into submission by the falsehood that government is their protector, and is licensed to do, and intends to do, nothing but justice to any.
If we say it is impracticable to limit the constitutional power of government to the maintenance of natural law, we must, to be consistent, have done with all attempts to limit government at all by written constitutions; for it is obviously as easy, by written constitutions, to limit the powers of government to the maintenance of natural law, as to give them any other limit whatever. And if they were thus limited expressly, it would then, for the reasons before given, be as easy, and even altogether more easy, for the judiciary to determine what legislation was constitutional, and what not, than it is under a constitution that should attempt to define the powers of government arbitrarily. [*143]
On what ground it can seriously be said that such a government is impracticable, it is difficult to conceive. Protecting the rights of all, it would naturally secure the cordial support of all, instead of a part only. The expense of maintaining it would be far less than that of maintaining a different one. And it would certainly be much more practicable to live under it, than under any other. Indeed, this is the only government which it is practicable to establish by the consent of all the governed; for an unjust government must have victims, and the victims cannot be supposed to give their consent. All governments, therefore, that profess to be founded on the consent of the governed, and yet have authority to violate natural laws, are necessarily frauds. It is not a supposable case, that all, or even any very large part, of the governed, can have agreed to them. Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government.
It is true that those appointed to administer a government founded on natural law, might, through ignorance or corruption, depart from the true theory of the government in particular cases, as they do under any other system; and these departures from the system would be departures from justice. But departures from justice would occur only through the errors of the men; such errors as systems cannot wholly prevent; they would never, as under other systems, be authorized by the constitution. And even errors arising from ignorance and corruption would be much less frequent than under other systems, because the powers of government would be much more definite and intelligible; they could not, as under other systems, be stretched and strained by construction, so as to afford a pretext for anything and everything that corruption might desire to accomplish.
It is probable that, on an average, three fourths, and not unlikely nine tenths, of all the law questions that are decided in the process of every trial in our courts, are decided on natural principles; such questions, for instance, as those of evidence, crime, the obligation of contracts, the burden of proof, the rights of property, &c., &c. fn38a If government be practicable, as we thus see it to be, where three fourths or nine tenths of the law administered [*144] is natural, it would be equally practicable where the whole was so.
So far from government being impracticable on principles of natural law, it is wholly impracticable to have a government of law, applicable to all cases, unless the great body of the law administered be natural; because it is impossible for legislation to anticipate but a small portion of the cases that must arise in regard to men's rights, so as to enact a law for them. In all the cases which the legislature cannot anticipate and provide for, natural law must prevail, or there can be no law for them, and, consequently, so far as those cases are concerned no government.
Whether, therefore, we regard the certainty of the law, or the practicability of a government applicable to all cases, the preference is incomparably in favor of natural law.
But suppose it were not so. Suppose, for the sake of the argument, that the meaning of the arbitrary commands of power were, in the majority of cases, more easily ascertained than the principles of natural justice; is that any proof that the former are law, and the latter not? Does the comparative intelligibility of the two determine which is to be adopted as the true definition of law? It is very often easier to understand a lie than to ascertain a truth; but is that any proof that falsehood is synonymous with fact? or is it any reason why falsehood should be held to be fact? As much reason would there be in saying this, as there is in saying that the will of the supreme power of the state is law, or should be held to be law, rather than natural justice, because it is easier to understand the former than to ascertain the latter.
Or suppose, further, that government were impracticable, under such a definition of law as makes law synonymous with natural justice; would that be any argument against the definition? or only against government?
The objection to the practicability of government under such a definition of law, assumes, 1st, that government must be sustained, whether it administer justice or injustice; and, 2d, that its commands must be called law, whether they really are law or not. Whereas, if justice be not law, it may certainly be questioned whether government ought to be sustained. And to this question all reasonable men must answer, that we receive such an abundance of injustice from private persons, as to make it inexpedient to maintain a government for the sole purpose of increasing the supply. But even if unjust government must be sustained, the ques [*145] tion will still remain, whether its commands ought to be called law? If they are not law, they should be called by their right name, whatever it may be.
In short, the definition of law involves a question of truth or falsehood. Natural justice either is law, or it is not. If it be law, it is always law, and nothing inconsistent with it can ever be made law. If it be not law, then we have no law except what is prescribed by the reigning power of the state; and all idea of justice being any part of our system of law, any further than it may be specially prescribed, ought to be abandoned; and government ought to acknowledge that its authority rests solely on its power to compel submission, and that there is not necessarily any moral obligation of obedience to its mandates.
If natural justice be not law, then all the decisions that are made by our courts on natural principles, without being prescribed by statute or constitution, are unauthorized, and not law. And the decisions of this kind, as has already been supposed, comprise probably three fourths, or more likely nine tenths, of all the decisions given by our courts as law. fn39
If natural justice be law, then all statutes and constitutions inconsistent with it are no law, and courts are bound to say so. Courts must adopt some definition of law, and adhere to it. They cannot make it mean the two opposite principles of justice and injustice at once. White cannot be made white and black at the same time, by the assertions of all the courts on the globe. Neither can law be made two opposite things at once. It must be either one thing or the other.
No one doubts that there is such a principle as natural law; and natural law is natural justice. If natural justice be law, natural injustice cannot be made law, either by "the supreme power of the [*146] state," or by any other power; and it is a fraud to call it by the name.
"The supreme powers of states," whether composed of majorities or minorities, have alike assumed to dignify their unjust commands with the name of law, simply for the purpose of cheating the ignorant into submission, by impressing them with the idea that obedience was a duty.
The received definition of law, viz., that it is "a rule of civil conduct prescribed by the supreme power of a state," had its origin in days of ignorance and despotism, when government was founded in force, without any acknowledgment of the natural rights of men. Yet even in those days the principle of justice competed, as now, with the principle of power, in giving the definition of law; for justice was conceded to be the law in all, or very nearly all, the cases where the will of the supreme power had not been explicitly made known; and those cases comprised, as now, a very large portion of all the cases adjudicated.
What a shame and reproach, nay, what an unparalleled crime is it, that at this day, and in this country, where men's natural rights are universally acknowledged, and universally acknowledged to be inalienable, and where government is acknowledged to have no just powers except what it derives from the consent of the governed, (who can never be supposed to consent to any invasion of their rights, and who can be supposed to establish government only for their protection,) a definition of law should be adhered to, that denies all these selfevident and glorious truths, blots out all men's natural rights, founds government on force, buries all present knowledge under the ignorance and tyranny of the past, and commits the liberties of mankind to the custody of unrestrained power!
The enactment and enforcement of unjust laws are the greatest crimes that are committed by man against man. The crimes of single individuals invade the rights of single individuals. Unjust laws invade the rights of large bodies of men, often of a majority of the whole community; and generally of that portion of community who, from ignorance and poverty, are least able to bear the wrong, and at the same time least capable of resistance. fn40 [*147]
CHAPTER XV.
OUGHT JUDGES TO RESIGN THEIR SEATS?
It being admitted that a judge can rightfully administer injustice as law, in no case, and on no pretence whatever; that he has no right to assume au oath to do so; and that all oaths of that kind [*148] are morally void; the question arises, whether a judge, who has actually sworn to support an unjust constitution, be morally bound [*149] to resign his seat? or whether he may rightfully retain his office, administering justice, instead of injustice, regardless of his oath? [*150]
The prevalent idea is, that he ought to resign his seat; and high authorities may be cited for this opinion. Nevertheless, the opinion is probably erroneous; for it would seem that, however wrong it may be to take the oath, yet the oath, when taken, being morally void to all intents and purposes, can no more bind the taker to resign his office, than to fulfil the oath itself.
The case appears to be this: The office is simply power, put into a man's hands, on the condition, based upon his oath, that he will use that power to the destruction or injury of some person's rights. This condition, it is agreed, is void. He holds the power, then, by the same right that he would have done if it had been put into his hands without the condition. Now, seeing that he cannot fulfill, and is under no obligation to fulfill, this void condition, the question is, whether he is bound to resign the power, in order that it may be given to some one who will fulfill the condition? or whether he is bound to hold the power, not only for the purpose of using it himself in defence of justice, but also for the purpose of withholding it from the hands of those who, if he surrender it to them, will use it unjustly? Is it not clear that he is bound to retain it for both of these reasons?
Suppose A put a sword into the hands of B, on the condition of B's taking an oath that with it he will murder C. Now, however immoral the taking of this oath may be, yet, when taken, the oath and the condition are utterly void. They are incapable of raising the least moral obligation, of any kind whatever, on the part of B towards A. B then holds the sword on the same principle, and by the same right, that he would have done if it had [*151] been put into his hands without any oath or condition whatever. Now the question is, whether B, on refusing to fulfil the condition, is bound to retain the sword, and use it, if necessary, in defence of C? or whether he is bound to return it to A, in order that A may give it to some one who will use it for the murder of C? The case seems to be clear. If he. were to give up the sword, under these circumstances, knowing the use that was intended to be made of it, and it should then be used, by some other person, for the murder of C, he would be, on both moral and legal principles, as much accessary to the murder of C, as though he had furnished the sword for that specific purpose, under any other circumstances whatever.
Suppose A and B come to C with money; which they have stolen from D, and intrust it to him, on condition of his taking an oath to restore it to them when they shall call for it. Of course, C ought not to take such an oath in order to get possession of the money; yet, if he have taken the oath, and received the money, his duty, on both moral and legal principles, is then the same as though he had received it without any oath or condition; be6ause the oath and condition are both morally and legally void. And if he were to restore the money to A and B, instead of restoring it to D, the true owner, he would make himself their accomplice in the theft a receiver of stolen goods. It is his duty to restore it to D.
Suppose A and B come to C, with a captive, D, whom they have seized with the intention of reducing him to slavery; and should leave him in the custody of C, on condition of C's taking an oath that he will restore him to them again. Now, although it is wrong for C to take such an oath for the purpose of getting the custody of D, even with a view to set him free, yet, if he have taken it, it is void, and his duty then is, not to give D up to his captors, but to set him at liberty else he will be an accomplice in the crime of enslaving him.
The principle, in all these cases, appears to be precisely similar to that in the case of a judge, who has sworn to support an unjust constitution. He is intrusted with certain power over the rights of men, on condition of his taking an oath that he will use the power for the violation of those rights. It would seem that there can hardly be a question, on either moral or legal principles, that this power, which he has received on the condition that he shall use it for the destruction of men's rights, he is bound to retain and use for their defence. [*152]
If there be any difference of principle in these several cases, I should like much to see it pointed out. There probably is none. And if there be none, the principle that would induce a judge to resign his power; is only a specimen of the honor that is said to prevail among thieves; it is no part of the morality that should govern men claiming to be just towards all mankind. It is indeed but a poor specimen even of the honor of thieves, for that honor, I think, only forbids the exposure of one's accomplices, and the seizure, for one's own use, of more than his agreed share of the spoils; it hardly forbids the restoration of stolen property to its rightful owners.
As long as the dogma is sustained that a judge is morally bound either to fulfil his oath to support an unjust constitution, or to surrender the power that has been entrusted to him for that purpose, so long those, who wish to establish such constitutions, will be encouraged to do so; because they will know that they can always find creatures enough, who will accept the office for its honors and emoluments, and will then execute it, if they must, rather than surrender them. But let the principle be established that such oaths are void, and that the power conferred is therefore held on the same grounds as though the oath had not been taken at all, and one security, at least, for the execution of unjust constitutions is taken away, and the inducement to establish them is consequently weakened.
Judges and other public officers habitually appeal to the pretended obligation of their oaths, when about to perform some act of iniquity, for which they can find no other apology, and for which they feel obliged to offer some apology. Hence the importance of the doctrine here maintained, if it be true.
Perhaps it will be said that a judge has no right to set up his own notions of the validity of a statute, or constitution, against the opinions of those who enact or establish it; that he is bound to suppose that they consider the statute or constitution entirely' just, whatever may be his own opinion of it; and that he is therefore bound to yield his opinion to theirs, or to resign his seat. But this is only saying that, though appointed judge, he has no right to be judge. It is the prerogative of a judge to decide everything that is involved in the question of law, or no law. His own mind alone is the arbiter. To say that it is not, is to say that he is not judge. He may err, like other men. Those who appoint him, take the risk of his errors. He is bound only by his own convictions. [*153]
But there is no reason in presuming that legislators, or constitution makers, when they violate natural law, do it in the belief that they are conforming to it. Everybody is presumed to know the law, especially natural law. And legislators must be presumed to know it, as well as other men; and if they violate it, (which question the judge must decide,) they, like other men, must be presumed to have done it intentionally.
CHAPTER XVI.
"THE SUPREME POWER OF A STATE."
If any additional argument were needed to enforce the authority of natural law, it would be found in the nature of the only opposing authority, to wit, the authority of "the supreme power of the state," as it is called.
In most "states," "the supreme power" is obtained by force, and rests upon force; and its mandates do not necessarily have any other authority than what force can give them.
But in this country, "the supreme power" is acknowledged, in theory, to rest with the people. Our constitutions purport to be established by "the people," and, in theory, "all the people" consent to such government as the constitutions authorize. But this consent of "the people" exists only in theory. It has no existence in fact. Government is in reality established by the few; and these few assume the consent of all the rest, without any such consent being actually given. Let us see if such be not the fact.
Only the male adults are allowed to vote either in the choice of delegates to form constitutions, or in the choice of legislators under the constitutions. These voters comprise not more than one fifth of the population. A bare majority of these voters, that is, a little more than one tenth of the whole people, choose the delegates and representatives. And then a bare majority of these delegates and representatives, (which majority were chosen by, and, consequently, represent but little more than one twentieth of the whole people,) adopt the constitution, and enact the statutes. Thus the actual makers of constitutions and statutes cannot be said to be the representatives of but little more than one twentieth of the people whose rights are affected by their action. In fact, not one twentieth, but only a little more than one forti-[*154] eth, of the people, are necessarily represented in our statutory legislation, state and national; for, in the national legislature, and in nearly all the state legislatures, a bare majority of the legislative bodies constitute a quorum, and a bare majority of that quorum are sufficient to enact the laws. The result, then, is substantially this. Not more than one fifth of the people vote. A bare majority of that fifth, (being about one tenth of the whole,) choose the legislators. A bare majority of the legislators, (representing but about one twentieth of the people,) constitute a quorum. A bare majority of the quorum, (representing but about one fortieth of the people.) are sufficient to make the laws.
Finally. Even the will of this one fortieth of the people cannot be said to be represented in the general legislation, because the representative is necessarily chosen for his opinions on one, or at most a few, important topics, when, in fact, he legislates on an hundred, or a thousand others, in regard to many, perhaps most, of which, he differs in opinion from those who actually voted for him. He can, therefore, with certainty, be said to represent nobody but himself.
Yet the statutory and constitutional law, that is manufactured in this ridiculous and fraudulent manner, is claimed to be the will of "the supreme power of the state ;" and even though it purport to authorize the invasion, or even the destruction, of the natural rights of large bodies of the people, men, women, and children, it is, nevertheless, held to have been established by the consent of the whole people, and to be of higher authority than the principles of justice and natural law. And our judges, with a sanctimony as disgusting as it is hypocritical, continually offer these statutes and constitutions as their warrant for such violations of men's rights, as, if perpetrated by them in their private capacities, would bring upon them the doom which they themselves pronounce upon felons. [*155]
CHAPTER XVII.
RULES OF INTERPRETATION
The three preceding chapters, as also chapter first, although their principles are claimed to be of paramount authority, as law, to all statutes and constitutions inconsistent with them, are nevertheless not claimed to have anything to do with the question of the constitutionality or unconstitutionality of slavery, further than this, viz., that they indicate the rule of interpretation that should be adopted in construing the constitution. They prove the reasonableness, propriety, and therefore truth, of the rule, quoted from the supreme court of the United States, and adopted in the prior argument, as the fundamental rule of interpretation; a rule which, if adhered to, unquestionably proves that slavery is unconstitutional. That rule is this.
"Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws fn43 is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects." 2 Cranch, 390.
The whole question of the constitutionality or unconstitutionality [*156] of slavery, is one of construction. And the real question is only whether the rules, applicable to the interpretation of statutes, and all other legal instruments, that are enforced by courts as obligatory, shall be applied also to the interpretation of the constitution? or whether these rules are to be discarded, and the worst possible meaning of which the words are capable put upon the instrument arbitrarily, and for no purpose but to sustain slavery? This is the question, and the whole of it.
The validity of the rule, quoted from the supreme court, has not, so far as I am aware, been denied. But some of the explanations given of the rule, in the prior argument, have been called in question. As the whole question at issue, in regard to the constitutionality of slavery, is one solely of interpretation, it becomes important to sustain, not only the explanations given of this rule, [*157] but also some of the other rules laid down in that argument. And hence the necessity of going more fully into the question of interpretation.
FIRST RULE.
The first rule, in the interpretation of the constitution, as of all other laws and contracts, is, "that the intention of the instrument must prevail."
The reason of this rule is apparent; for unless the intention of the instrument prevail, wherefore was the instrument formed? or established as law? If any other intention is to prevail over the instrument, the instrument is not the law, but a mere nullity.
The intentions of a statute or constitution are always either declared, or presumed.
The declared intentions of a statute or constitution are the intentions that are clearly expressed in terms in the statute or constitution itself.
Where the intentions of statutes and constitutions are not clearly expressed in the instruments themselves, the law always presumes them. And it always presumes the most just and beneficial intentions, which the words of the instruments, taken as a whole, can fairly be made to express, or imply.
Statutes and constitutions, in which no intentions were declared, and of which no reasonable intentions could be presumed, would be of no legal validity. No intentions that might be attributed to them by mere force of conjecture, and exterior history, could be legally ascribed to them, or enforced as law.
The intentions, which individuals, in discussions, conversations, and newspapers, may attribute to statutes and constitutions, are no part of the instruments themselves. And they are not of the slightest importance as evidence of their intentions, especially if they are in opposition, either to the declared, or the presumed, intentions of the instruments. If the intentions of statutes and constitutions were to be gathered from the talk of the street, there would be no use in writing them in terms. The talk of the street, and not the written instruments, would constitute the laws. And the same instrument would be as various and contradictory in its meanings, as the various conjectures, or assertions, that might be heard from the mouths of individuals; for one mall's conjecture or assertion would be of as much legal value as another's; and effect would therefore have to be given to all, if to any. [*158]
Those who argue for slavery, hold that "the intentions of the people" must prevail, instead of "the intentions of the instrument ;" thus falsely assuming that there is a legal distinction between the intentions of the instrument and the intentions of the people. Whereas the only object of the instrument is to express the intentions of the people. That is the only motive that can be attributed to the people, for its adoption. The people established the constitution solely to give written and certain evidence of their intentions. Having their written instrument, we have their own testimony, their own declaration of what their intentions are. The intentions of the instrument, then, and the intentions of the people, are identical. And it is legally a matter of indifference which forth of expression is used; for both legally express the same idea.
But the same class of persons, who assume a distinction between the intentions of the instrument and the intentions of the people, labor to prove, by evidence extraneous to the instrument, that the intentions of the people were different from those the instrument expresses; and then they infer that the instrument must be warped and twisted, and made to correspond to these unexpressed intentions of the people.
The answer to all this chicanery is this. The people, assuming that they have the right to establish their will as law, have, in theory, agreed upon an instrument to express their will, or their intentions. They have thus said that the intentions expressed in that instrument are their intentions. Also that their intentions, as expressed in the instrument, shall be the supreme law of the land.
"The people," by thus agreeing that the intentions, expressed by their joint instrument, shall be the supreme law of the land, have virtually and legally contracted with each other, that, for the sake of having these, their written intentions, carried into effect, they will severally forego all other intentions, of every name and nature whatsoever, that conflict with the written ones, in which they are all agreed.
Now this written instrument, which is, in theory, the voluntary contract of each and every individual with each and every other, is the highest legal evidence of their intentions. It is the specific evidence that is required of all the parties to it. It is the only evidence that is required, or accepted, of any. It is equally valid and sufficient, in favor of all, and against all. It is the only [*159] evidence that is common to ail. The intentions it expresses must, therefore, stand as the intentions of all, and be carried into effect as law, in preference to any contrary intentions, that may have been separately, individually, and informally expressed by any one or all the parties on other occasions; else the contract is broken.
As long as the parties acknowledge the instrument as being their contract, they are each and all estopped by it from saying that they have any intentions adverse to it. Its intentions and their intentions are identical, else the parties individually contradict themselves. To acknowledge the contract, and yet disavow its intentions, is perfect selfcontradiction.
If the parties wish to repudiate the intentions of the instrument, they must repudiate or abolish the instrument itself. If they wish to change the intentions of the instrument, in any one or more particulars, they must change its language in those particulars, so as to make it express the intentions they desire. But no change can be wrought by exterior evidence; because the written instrument, to which, and to which only, all have, in theory, agreed, must always be the highest evidence that the courts can have of the intentions of the whole people.
If, therefore, the fact were historically well authenticated, that every man in the nation had publicly asserted, within one hour after the adoption of the constitution, (that is, within one hour after he had, in theory, agreed to it,) that he did not agree to it intending that any or all of the principles expressed by the instrument should be established as law, all those assertions would not be of the least legal consequence in the world; and for the very sufficient reason, that what they have said in the instrument is the law; and what they have said out of it is no part of it, and has no legal bearing upon it.
Such assertions, if admitted to be true, would only prove that the parties had lied when they agreed to the instrument; and if they lied then. they may be lying now. If we cannot believe their first and formal assertion of their intentions, we cannot believe their second and informal one.
The parties cannot claim that they did not understand the language of the instrument; for if they did not understand the language then, when they agreed to it, how can we know that they understand it now, when they dissent from it? Or how can we know that they so much as understand the very language they are [*160] now using in making their denial? or in expressing their contrary intentions?
They cannot claim that they did not understand the rules, by which their language, used in the instrument, would be interpreted, for if they did not understand them then, how can we know that they understand them now? Or how do we know that they understand the rules, by which their present declarations of their intentions will be interpreted?
The consequence is, that every man must be presumed to understand a contract to which he agrees, whether he actually does understand it or not. He must be presumed to understand the meaning of its words; the rules by which its words will be interpreted; and the intentions, which its words, thus interpreted, express. Otherwise men can never make contracts that will be binding upon them; for a man cannot bind himself by a contract which he is not presumed to understand; and it can seldom, or never, be proved whether a man actually does understand his contract, or not. If, therefore, at any time, through ignorance, carelessness, mental reservations, or fraudulent designs, men agree to instruments that express intentions different from their own, they must abide the consequences. The instrument must stand, as expressing their intentions, and their adverse intentions must fail of effect.
Every one, therefore, when he agrees to a contract, judges for himself, and takes his own risk, whether he understands the instrument to which he gives his assent. It is plainly impossible to have constitutions established by contract of the people with each other on any other principle than this; for, on any other principle, it could never be known what the people, as a whole, had agreed to. If every individual, after he had agreed to a constitution, could set up his own intentions, his own understandings of the instrument, or his own mental reservations, in opposition to the intentions expressed by the instrument itself, the constitution would be liable to have as many different meanings as there were different individuals who had agreed to it. And the consequence would be, that it would have no obligation at all, as a mutual and binding contract, for, very likely, no two of the whole would have understood the instrument alike in every particular, and therefore no two would have agreed to the same thing.
Each man, therefore, before he agrees to an instrument, must judge for himself, taking his own risk whether he understands it. [*161]
After he has agreed to it, he is estopped, by his own instrument, from denying that his intentions were identical with the intentions expressed by the instrument.
The constitution of the United States, therefore, until its language is altered, or the instrument itself abolished, by the people of the United States, must be taken to express the intentions of the whole people of the United States, whether it really do express their intentions or not. It is the highest evidence of their intentions. It is the only evidence which they have agreed to furnish of their intentions. All other adverse evidence is, therefore, legally worthless and inadmissible. The intentions of the instrument, then, must prevail, as being the intentions of the people, or the constitution itself is at an end.
SECOND RULE.
The second rule of interpretation is, that "the intention of the constitution must be collected from its words.'' fn43a This rule is, in reality, nearly synonymous with the preceding one; and its reason, like that of the other, is apparent; for why are words used in writing a law, unless it is to be taken for granted [*162] that when written they contain the law? If more was meant, why was not more said? If less was meant, why was so much said? If the contrary was meant, why was this said, instead of the contrary?
To go beyond the words of a law, (including their necessary or reasonable implications,) in any case, is equivalent to saying that the written law is incomplete; that it, in reality, is not a law, but only a part of one; and that the remainder was left to be guessed at, or rather to be made, by the courts.
It is, therefore, a violation of legal rules, to go beyond the words of a law, (including their necessary or reasonable implications,) in any case whatever. fn43b
To go contrary to the words of a law, is to abolish the law itself, by declaring its words to be false.
But it happens that the same words have such various and opposite meanings in common use, that there would be no certainty as to the meaning of the laws themselves, unless there were some rules for determining which one of a word's various meanings was to be attached to it, when the word was found in a particular connection. Hence the necessity of rules of interpretation. Their office is to determine the legal meaning of a word, or, rather, to select the legal meaning of word, out of all the various meanings which the word bears in common use. Unless this selection were made, a word might have two or more different and contradictory meanings in the same place. Thus the law would be mere jargon, instead of being a certain and precise rule of action.
These rules of interpretation have never been specially enacted by statute, or constitutions, for even a statute or constitution enacting them would be unintelligible or uncertain, until interpreted by them. They have, therefore, originated in the necessity of the case; in the inability of words to express single, definite, and clear ideas, such as are indispensable to certainty in the law, unless some one of their several meanings be selected as the legal one.
Men of sense and honesty, who have never heard of these rules as legal ones, but who, nevertheless, assume that written laws and contracts are made for just and reasonable ends, and then judge of [*163] their meaning accordingly, unconsciously act upon these rules in so doing. Their perception of the fact, that unless the meaning of words were judged of in this manner, words themselves could not be used for writing laws and contracts, without being liable to be perverted to subserve all manner of injustice, and to defeat the honest intentions of the parties, forces upon them the conviction, that the legal meaning of the words must be such, and only such, as (it will hereafter be seen) these rules place upon them. The rules, then, are but the dictates of common sense and common honesty, applied to determining the meaning of laws and contracts. And common sense and common honesty are all that is necessary to enable one to judge of the necessity and soundness of the rules.
Rules of interpretation, then, are as old as the use of words, in prescribing laws, and making contracts. They are as necessary for defining the words as the words are for describing the laws and contracts. The words would be unavailable for writing laws and contracts, without the aid of the rules for interpreting them. The rules, then, are as much a part of the language of laws and contracts as are the words themselves. Their application to the words of laws and contracts is as much presumed to be understood, by all the parties concerned, as is the meaning of the words themselves. And courts have no more right to depart from, or violate, these rules, than to depart from, or contradict, the words themselves.
The people must always be presumed to understand these rules, and to have framed all their constitutions, contracts, &c., with reference to them, as much as they must be presumed to understand the common meanings of the words they use, and to have framed their constitutions and contracts with reference to them. And why? Because men's contracts and constitutions would be no contracts at all, unless there were some rules of interpretation understood, or agreed upon, for determining which was the legal meaning of the words employed in forming them. The received rules of interpretation have been acted upon for ages; fn43c indeed, they must have been acted upon through all time, since men first attempted to make honest contracts with each other. As no other rules than these received ones can be presumed against the parties, and as these are the only ones that can secure men's honest [*164] rights, under their honest contracts; and, as everybody is bound to know that courts must be governed by fixed rules, applying the same to all contracts whatsoever, it must always be presumed, in each particular case, that the parties intended their instruments should be construed by the same rules by which the courts construe all others.
Another reason why the people must be presumed to know these rules, at least m their application to cases where a question of right and wrong is involved, is, that the rules are but a transcript of a common principle of morality, to wit, the principle which requires us to attribute good motives and good designs to all the words and actions of our fellowmen, that can reasonably bear such a construction. This is a rule by which every man claims that his own words and actions should be judged. It is also a principle of law, as well as of morals, and one, too; of which every man who is tried for an offence claims the benefit. And the law accords it to him. So long as there be so much as "a reasonable doubt" whether his words or actions evince a criminal intent, the law presumes a good intent, and gives him the benefit of it. Why should not the same rule be observed, in inferring the intent of the whole community, from the language of their laws and constitutions, which is observed in inferring the intent of each individual of that community from his language and conduct? It should clearly require as strong proof to convict the whole community of a crime, (and an unjust law or constitution is one of the highest of all possible crimes,)as it does to convict a single individual. The principle, then, is the same in both cases; and the practice of those who infer a bad intent from the language of the constitution, so long as the language itself admits of a reasonable doubt whether such be its intent, goes the length of overthrowing an universally recognized principle of law, on which the security of every accused person is liable to depend. For these, and perhaps other reasons, the people are presumed [*165] to understand the reason and justice of these rules, and therefore, to understand that their contracts will be construed by them. If, therefore, men ever frame constitutions or contracts with the intention that they shall be construed contrarily to these rules, their intention must be defeated; and for the same reason that they would have to be defeated if they had used words in a directly opposite sense to the common ones, such, for example, as using white when they meant black, or black when they meant white.
For the sake of having a case for the rules to apply to, we will take the representative clause, embracing the word "free," (Art. 1, sec. 2,) which is the first and the strongest of all the clauses in the constitution that have been claimed as recognizing and sanctioning slavery. Indeed, unless this clause do recognize and sanction it, nobody would pretend that either of the other clauses do so. The same rules, if any, that prevent the representative clause and the word "free" from having any legal reference to slavery, will also have the same effect upon the other clauses. If, therefore, the argument for slavery, based upon the word "free," falls to the ground, the arguments based upon. the words "importation of persons," "service and labor," &c., must also fall; for they can stand, if at all, only by means of the support they obtain from the argument drawn from the word "free."
THIRD RULE.
A third rule is, that we are always, if possible, to give a word some meaning appropriate to the subject matter of the instrument itself. fn43e
This rule is indispensable, to prevent an instrument from degenerating into absurdity and nonsense.
In conformity with this rule, words which purport to describe certain classes of persons existing under the constitution, must be taken in a sense that will aptly describe such persons as were actually to exist under it, and not in a sense that will only describe those who were to have no existence under it.
It would, for instance, be absurd for the constitution to provide that, in every ten years, there should be "added to the whole num [*166] ber of free persons three fifths of all other persons," if them were really to be. no other persons than the free.
If, therefore, a sense correlative with slavery were given to the word free, it would make the word inappropriate to the subject matter of the constitution, unless there were really to be slaves under the constitution.
It is, therefore, inadmissible to say that the word free is used in the constitution as the correlative of slaves, until it be first proved what there were to be slaves under the constitution.
We must find out what classes of persons were to exist under the constitution, before we can know what classes of persons the terms used in the constitution apply to.
If the word free had but one meaning, we might infer, from the word itself, that such persons as that word would necessarily describe were to exist under the constitution. But since the word has various meanings, we can draw no certain inference from it alone, as to the class of persons to whom it is applied. We must, therefore, fix its meaning in the constitution, by ascertaining, from other parts of the instrument, what kind of "free persons," and also what kind of "other persons," were really to exist under the constitution. Until this is done, we cannot know the meaning of the word free, as it is used in the constitution.
Those who say that the word free is used, in the constitution, in a sense correlative with slavery, assume the very point in dispute; viz., that there were to be slaves under the constitution. This is the point to be proved, and cannot be assumed. And until it be proved, it is making nonsense of the constitution, to say that the word free is used as the correlative of slavery.
There is no language in the constitution, that expressly declares, or necessarily implies, that slavery was to exist under the constitution. To say, therefore, that the word free was used as the correlative of slaves, is begging the question that there were to be slaves; it is assuming the whole ground in dispute. Those who argue for slavery, must first prove, by language that can mean nothing less, that slavery was to be permitted under the constitution. Then they may be allowed to infer that the word free is used as its correlative. But until then, a different meaning must be given to the word, else the cause before cited is converted into nonsense.
On the other hand, in giving the word free the sense common at that day, to wit, a sense correlative with persons not naturalized, [*167] and not possessed of equal political privileges with others, we assume the existence of no class of persons except those whom the constitution itself especially recognizes, to wit, those possessing full political rights, as citizens, or members of the state, and those unnaturalized persons who will not possess full political rights. The constitution explicitly recognizes these two classes, because it makes a distinction between them in the matter of eligibility to certain offices, and it also explicitly authorizes Congress to pass laws for the naturalization of those who do not possess full rights as citizens.
If, then, we take the word free in the sense correlative with unnaturalized persons, the word has a meaning that is already appropriate to the subject matter of the instrument, and requires no illegal assumptions to make it so.
On the other hand, if we use the word in the sense correlative with slaves, we either make nonsense of the language of the constitution, or else we assume the very point in dispute, viz., that there were to be slaves under the constitution; neither of which have we any right to do.
This argument is sufficient, of itself, to overthrow all the arguments that were ever made in favor of the constitutionality of slavery.
Substantially the whole argument of the advocates of slavery is founded on the assumption of the very fact in dispute, viz., that there was to be slavery under the constitution. Not being able to prove, by the words of the constitution, that there was to be any slavery under it, they assume that there was to be slavery, and then use that assumption to prove the meaning of the constitution itself. In other words, not being able to prove slavery by the constitution, they attempt to prove the meaning of the constitution by slavery. Their whole reasoning on this point is fallacious, simply because the legality of slavery, under the constitution, is itself a thing to be proved, and cannot be assumed.
The advocates of slavery cannot avoid this dilemma, by saying that slavery existed at the time the constitution was adopted; for many things existed at the time, such as their, robbery, piracy, &c., which were not therefore to be legalized by the constitution. And slavery had no better constitutional or legal existence than either of these crimes.
Besides, even if slavery had been legalized (as it was not) by may of the then existing state constitutions, its case would have [*168] been no better; for the United States constitution was to be the supreme law of the land, anything in the constitution to laws of any state to the contrary notwithstanding. The constitution being the supreme law, operating directly upon the people, and securing to them certain rights, it necessarily annulled everything that might be found in the state constitutions that was inconsistent with the freedom of the people to enjoy those rights. It of course would have annulled the legality of slavery, if slavery had then had any legal existence; because a slave cannot enjoy the rights secured by the United States constitution.
Further. The constitution is a political instrument, treating of men's political rights and privileges. Its terms must therefore be taken in their political sense, in order to be appropriate to the subject matter of the instrument. The word free, in its political sense, appropriately describes men's political rank as free and equal members of the state, entitled, of right, to the protection of the laws. On the other hand, the word free, in the sense correlative with slavery, has no appropriateness to the subject matter of such an instrument and why? Because slavery is not, of itself, a political relation, or a political institution; although political institutions may, and sometimes do, recognize and legalize it. But, of itself, it is a merely private relation between one man and another, created by individual force, and not by political authority. Thus a strong man beats a weaker one, until the latter will obey him. This is slavery, and the whole of it; unless it be specially legalized. The United States constitution does not specially legalize it; and therefore slavery is no part of the subject matter of that instrument. The word free, therefore, in the constitution, cannot be said to be used as the correlative of slavery; because that sense would be entirely inappropriate to anything that is the subject matter of the instrument. It would be a sense which no other part of the constitution gives any occasion or authority for.
FOURTH RULE.
A fourth rule is, that where technical words are used, a technical meaning is to be attributed to them.
This rule is commonly laid down in the above general terms. It is, however, subject to these exceptions, viz., that where the technical sense would be inconsistent with, or less favorable to, justice, or not consonant to the context, or not appropriate to the nature of the subject, some other meaning may be adopted. Sub- [*169] ject to these exceptions, the rule is of great authority, for reasons that will hereafter appear.
Thus, in commercial contracts, the terms and phrases used in them are to be taken in the technical or professional sense common among merchants, if that sense be consonant to the context, and appropriate to the nature of the contracts.
In political contracts, the terms and phrases used in them are to be taken in the political and technical sense common in such instruments, if that sense be consonant to the context, and appropriate to the subject matter of the contracts.
Terms common and proper to express political rights, relations, and duties, are of course to be taken in the technical sense natural and appropriate to those rights, relations, and duties.
Thus, in political papers, such terms as liberty, allegiance, representation, citizenship, citizens, denizens, freemen, free subjects, freeborn subjects, inhabitants, residents, people, aliens, allies, enemies, are all to be understood in the technical sense appropriate to the subject matter of the instrument, unless there be something else, in the instrument itself, that shows that some other meaning is intended.
Terms which, by common usage, are properly descriptive of the parties to, or members of, the compact, as distinguished from others, are to be taken in the technical sense, which describes them, as distinguished from others, unless there be, in the instrument itself, some unequivocal evidence that they are to be taken in a different sense,
The authority of this rule is so well founded in nature, reason, and usage, that it is almost strange that it should be questioned. It is a rule which everybody, by their common practice, admit to be correct; for everybody more naturally understands a word in its technical sense than in any other, unless that sense be inconsistent with the context.
Nevertheless, an attempt has been made by some persons to deny the rule, and to lay down a contrary one, to wit, that where a word has what they choose to call a common or popular meaning, and also a technical one, the former is to be preferred, unless there be something, in other parts of the instrument, that indicates that the technical one should be adopted.
The argument for slavery virtually claims, not only that this so called common and popular meaning of a word, (and especially of the word" free,") is to be preferred to the technical one, but also that this simple preference is of sufficient consequence to out [*170] weigh all considerations of justice and injustice, and indeed all, or nearly all, the other considerations on which legal rules of interpretation are founded. Nevertheless I am not aware that the advocates of slavery have ever had the good fortune to find a single instance where a court has laid it down, as a rule, that any other meaning is, of itself, preferable to the technical one; much Jess that that preference was sufficient, in cases where right and wrong were involved, to turn the scale in favor of the wrong. And if a court were to lay down such a rule, every one is at liberty to judge for himself of its soundness.
But inasmuch as this pretended rule is one of the main pillars, if not the main pillar, in support of the constitutionality of slavery, it is entitled to particular consideration.
The falsehood of this pretended rule will be evident when it is considered that it assumes that the technical meaning of a word is not the common and popular one; whereas it is the very commonness, approaching to uniformity, with which a word is used in a particular sense, in relation to particular things, that makes it technical. fn43f
A technical word is a word, which in one profession, art, or trade, or in reference to particular subjects, is generally, or uniformly, used in a particular sense, and that sense a somewhat different one from those in which it is generally used out of that profession, art, or trade, or in reference to other subjects.
There probably is not a trade that has not its technical words. Even the cobbler has his. His ends are generally quite different things from the ends of other people. If we hear a cobbler speak of his ends, we naturally suppose he means the ends of his threads, because he has such frequent Occasion to speak of and use them. If we hear other people speak of their ends, we naturally suppose that they mean the objects they have in view. With the cobbler, then, ends is a technical word, because he frequently or generally uses the word in a different sense from that in which it is used by other people.
Mechanics have very many technical words, as, for instance, to describe particular machines, parts of machines, particular processes [*171] of labor, and particular articles of manufacture. And when we hear a mechanic use one of these words, we naturally suppose that he uses it in a technical sense that is, with reference to his particular employment, machinery, or production. And why do we suppose this? Simply because it is more common for him to use the word in that sense than in any other, especially if he is talking of anything in regard to which that sense would be appropriate. If, however, his talk is about some other subject, in relation to which the technical sense of the word would not be appropriate, then we conclude that he uses it, not in the technical sense appropriate to his art, but in some other sense more appropriate to the subject on which he is speaking.
So, if we were to hear a banker speak of "the days of grace having expired," we should naturally attach a very different meaning to the words from what we should if we were to hear them from the pulpit. We should suppose, of course, that he used them in the technical sense appropriate to his business, and that he had reference only to a promissory note that had not been paid when due.
If we were to hear a banker speak of a check, we should suppose he used the word in a technical sense, and intended only an order for money, and not a stop, hindrance, or restraint.
So, if one farmer were to say of another, He is a good husband, we should naturally infer that he used the word husband in the technical sense appropriate to his occupation, meaning that he cultivated and managed his farm judiciously. On the other hand, if we were to hear lawyers, legislators, or judges, talking of husbands, we should infer that the word was used only in reference to men's legal relations to their wives. The word would be used in a technical sense in both cases.
So, if we were to hear a man called a Catholic priest, we should naturally infer that the word Catholic was used in its technical sense, that is, to describe a priest of the Catholic persuasion, and not a priest of a catholic, liberal, and tolerant spirit.
These examples might be multiplied indefinitely. But it will be seen from those already given that, so far from the technical sense and the common sense of words being opposed to each other, the technical sense is itself the common sense in which a word is used with reference to particular subjects.
These examples also show how perfectly natural, instead of unnatural, it is for us to attribute the technical meaning to a word, [*172] whenever we are talking of a subject in relation to which that meaning is appropriate.
Almost every word of substantive importance, that is of frequent use in the law, is used in a technical sense that is, in a sense having some special relation either to natural justice, or to men's rights or privileges under the laws.
The word liberty, for instance, has a technical meaning in the law. It means, not freedom from all restraint, or obligation; not a liberty to trespass with impunity upon other men's rights; but only that degree of liberty which, of natural right, belongs to a man; in other words, the greatest degree of liberty that he can exercise, without invading or immediately endangering the rights of others.
Unless nearly all words had a technical meaning in the law, it would be impossible to describe laws by words; because words have a great variety of meanings in common use; whereas the law demands certainty and precision. We must know the precise meaning of a word, before we can know what the law is. And the technical meaning of a word is nothing more than a precise meaning, that is appropriate, and commonly applied, to a particular subject, or class of subjects.
How would it be possible, for instance, to have laws against murder, unless the word murder, or some other word, were understood, in a technical sense, to describe that particular mode of killing which the law wishes to prohibit, and which is morally and legally distinguishable from all other modes of killing?
So indispensable are precision and certainty, as to the meaning of words used in laws, that where a word has not a technical meaning already known, the legislature frequently define the meaning they intend it shall bear in particular laws. Where this is not done, the courts have to give it a precise and definite meaning, before the law can be administered; and this precise meaning they have to conjecture, by reference to the context, and to the presumed object of all laws, justice.
What perfect chaos would be introduced into all our existing laws and contracts, if the technical meanings of all the words used in them were obliterated from our minds. A very large portion of the laws and contracts themselves would be substantially abolished, because all certainty as to their meaning would be extinguished. Suppose, for instance, the technical meanings of liberty, trial by jury, habeas corpus, grand jury, petit jury, murder, rape [*173] arson, theft, indictment, trial, oath, testimony, witness, court, verdict, judgment, execution, debt, dollar, bushel, yard, foot, cord, acre, rod, pound, check, draft, order, administrator, executor, guardian, apprentice, copartner, company, husband, wife, marriage, lands, goods, real estate, personal estate, highway, citizen, alien, subject, and an almost indefinite number of other words, as they now stand in our laws and contracts, were at once erased from our minds, and the legal meanings of the same words could only be conjectured by the courts and people from the context, and such other circumstances as might afford grounds for conjecture. Suppose all this, and where would be our existing laws and contracts, and the rights dependent upon them? We might nearly as well throw our statutebooks, and all our deeds, notes, and other contracts, into the fire, as to strike out the technical meanings of the words in which they are written. Yet for the courts to disregard these technical meanings, is the same thing as to strike them out of existence.
If all our constitutions, state and national, were to be annulled at a blow, with all the statutes passed in pursuance of them, it would hardly create greater confusion as to men's rights, than would be created by striking out from men's minds all knowledge of the technical meanings of the words now used in writing laws and contracts. And the reconstruction of the governments, after such an abolition of them, would be a much less labor than the reconstruction of a legal language, in which laws and contracts 'could be written with the same conciseness and certainty as now. The former would be the work of years, the latter of centuries.
The foregoing considerations show in what ignorance and folly are founded the objections to the technical meanings of words used in the laws.
The real difference between the technical meaning of a word, and any other meaning, is just the difference between a meaning that is common, certain, and precise, and one that is, at best, less common, less certain, and less precise, and perhaps neither common, certain, nor precise.
The authorities in favor of the technical meaning, are given in the note, and are worthy of particular attention. fn43g [*174]
The argument, and the whole argument, so far as I know, in favor of what is called the common or popular meaning, is, that that meaning is supposed to be better known by the people, and therefore it is more probable they would use it, than the other. [*175]
But this argument, if not wholly false, is very shallow and frivolous; for everybody is presumed to know thelaws, and therefore they are presumed to be familiar with the technical meanings of all the technical words that are of frequent use in writing the laws. [*176] And this presumption of law corresponds with the general fact. The mass of the people, who are not learned in the law, but who nevertheless have general ideas of legal matters, naturally understand the words of the laws in their legal senses, and attach their legal senses to them without being aware that the legal sense is a technical one. They have been in the habit of thinking that the technical meaning of words was something dark and recondite, (simply because some few technical terms are in another language than the English,) when in reality they themselves are continually using a great variety of words, indeed, almost all important words, in a technical or legal sense, whenever they are talking of legal matters.
But whether the advocates of slavery can, or cannot, reconcile themselves to the technical meaning of the word "free," they cannot, on their own construction of the constitution, avoid giving the word a precise and technical sense, to wit, as the correlative of slavery, as distinguished from all other forms of restraint and servitude. [*177]
The word slaves, if it had been used in the constitution, (instead bf the words "all other persons,") would have itself been held to be used in a technical sense, to wit, to designate those persons who were held as chattels, as distinguished from serfs, villeins, apprentices, servants for years, persons under twentyone years of age, prisoners of war, prisoners for debt, prisoners for crime, soldiers, sailors, &c., &c. The word slaves, then, being technical, the word free must necessarily have been taken in a technical sense, to wit, as the precise correlative of chattel slaves, and not as the correlative of persons held under any of these other forms of restraint or servitude. So that on the score of technicality, (even if that were an objection,) nothing would be gained by adopting the sense correlative with slaves.
But it is a wholly erroneous assumption that the use of the word "free," in a sense correlative with slaves, was either a common or popular use of the word. It was neither common nor popular, if we may judge of that time by the present; for now such a use of it is seldom or never heard, unless made with special reference to the classification which it is assumed that the constitution has established on that point.
The common and popular classification of the people of this country, with reference to slavery, is by the terms, white, free colored, and slaves. We do not describe anybody as free, except the free colored. The term white carries with it the idea of liberty; and it is nearly or quite universally used in describing the white people of the South, as distinguished from the slaves.
But it will be said by the advocates of slavery, that the term white was not used in the constitution, because it would not include all the free; that the term free was used in order to include both white and free colored. But this assertion is but another wholly gratuitous assumption of the facts, that there were to be slaves under the constitution, and that representation and taxation were to be based on the distinction between the slaves and the free; both of which points are to be proved, not assumed.
If there were to be slaves under the constitution, and if representation and taxation were to be based upon the distinction between the slaves and the free, then the constitution undoubtedly used the word free, instead of white, in order to include both the white and free colored in the class of units. But if, as we are bound to presume until the contrary is proved, there were to be no slaves under the constitution, or if representation and taxation were not founded [*178] on the distinction between them and the free, then the constitution did not use the word free for such a purpose. The burden is upon the advocates of slavery to prove, first, that there were to be slaves under the constitution, and, secondly, that representation and taxation were to be based on the distinction between them and the free, before they can say that the word free was used for the purpose of including the white and free colored.
Now the whole argument, or rather assertion, which the advocates of slavery can offer in support of these points, which they are necessitated to prove, is, that the word free is commonly and popularly used as the correlative of slaves. That argument, or assertion, is answered by the fact that the word free is not commonly or popularly used as the correlative of slaves; that the terms white and free colored are the common terms of distinction between the free and the slaves. Now these last named facts, and the argument resulting from them, are not met at all, by saying that if there were to be slaves, and if representation and taxation were to be based on the distinction between them and the free, the word free would then have been used, in preference to any other, in order to include the free colored in the same class with the whites.
It must first be proved that there were to be slaves under the constitution, and that representation and taxation were to be based on the distinction between them and the free, before it can be said that the word free was used in order to include both white and free colored. Those points not being proved, the allegation, founded on the assumption of them, is good for nothing.
The use of the word free, then, in a sense correlative with slavery, not being the common and popular use of the word at the time the constitution was adopted, all the argument, founded on that assumption, falls to the ground.
On the other hand, the use of the word free, in a political sense, as correlative either with aliens, or with persons not possessed of equal political privileges with others, was the universal meaning of the word, in all documents of a fundamental and constitutional character, up to the time when the constitution of the United States was adopted (that is, when it was used, as it is in the United States constitution, to describe one person, as distinguished from another living under the same government.) Such was the meaning of the word in the colonial charters, in several of the State constitutions existing in 1789, and in the articles of confederation Furthermore, it was a term that had very recently been in common [*179] use in political discussions, and had thus been made perfectly familiar to the people. For example, the discussions immediately preceding the revolution, had all, or nearly all, turned upon the rights of the colonists, as "free British subjects." In fact, the political meaning of the word free as probably as familiar to the people of that day as the meaning of the word citizen is now; perhaps, indeed, more so, for there is some controversy as to the legal meaning of the word citizen. So that all the argument against the technical sense of the term, on the ground of its not being the common sense, is founded in sheer ignorance or fraud. fn43h
Finally; unless the word free be taken in the technical sense common at that day, it is wholly an unsettled matter what sense should be given to it, in the constitution. The advocates of slavery take it for granted that, if it be not taken in its common and technical sense, it must be taken in the sense correlative with slavery. But that is all gratuitous. There are many kinds of freedom besides freedom from chattel slavery; and many kinds of restraint besides chattel slavery; restraints, too, more legitimate in their nature, and better legitimated under the laws then existing, than slavery. And it may require a great deal more argument than some persons imagine, to settle the meaning of the word free, as used in the constitution, if its technical meaning be discarded.
I repeat, it is a wholly gratuitous assumption that, if the technical meaning of the word free be discarded, the sense correlative with slavery must be adopted. The word "free," in its common and popular sense, does not at all imply, as its correlative, either property in man, or even involuntary service or labor. It, therefore, does not imply slavery. It implies, as its correlative, simply restraint. It is, of itself, wholly indefinite as to the kind of restraint implied. It is used as the correlative of all kinds of restraint, imprisonment, compulsion, and disability, to which mankind are liable. Nothing, therefore, can be inferred from the word alone, as to the particular kind of restraint implied, in any case. It is indispensable to know the subject matter, about which the word is used, in order to know the kind of restraint implied. And [*180] ff the word had had no technical meaning appropriate to the subject matter of the constitution, and if no other part of the constitution had given us any light as to the sense of the word in the representative clause, we should have been obliged to conjecture its correlative. And slavery is one of the last correlatives that we should have been at liberty to adopt. In fact, we should have been obliged to let the implication remain inoperative for ambiguity, and to have counted all men as "free," (for reasons given under rule seventh,) rather than have adopted slavery as its correlative.
FIFTH RULE.
A fifth rule of interpretation is, that the sense of every word, that is ambiguous in itself, must, if possible, be determined by reference to the rest of the instrument.
The importance of this rule will be seen, when it is considered that the only alternatives to it are, that we must go out of the instrument, and resort to conjecture, for the meaning of ambiguous words.
The rule is an universal one among courts, and the reasons of it are as follows:
Vattel says, "If he who has expressed himself in an obscure or equivocal manner, has spoken elsewhere more clearly on the same subject, he is the best interpreter of himself. We ought to interpret his obscure and vague expressions, in such a manner, that they may agree with those terms that are clear and without ambiguity, which he has used elsewhere, either in the same treaty, or in some other of the like kind. In fact, while we have no proof that a man has changed his mind, or manner of thinking, it is presumed that his thoughts have been the same on the same occasions; so that if he has anywhere clearly shown his intention, with respect to anything, we ought to give the same sense to what he has elsewhere said obscurely on the same affair." B. 2, ch. 17, sec. 984.
Also; "Frequently, in order to abridge, people express imperfectly, and with some obscurity, what they suppose is sufficiently elucidated by the things that preceded it, or even what they propose to explain afterwards; and, besides, the expressions have a force, and sometimes even an entirely different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is also another source of interpretation. We ought to consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signification it may receive in [*181] itself, as that it ought to have from the thread and spirit of the discourse. This is the maxim of the Roman law: Incivile est, nist tota lege perspecta una aliqua particula ejus proposita, judicare, vel respondere." (It is improper to judge of, or answer to, any one thing proposed in a law, unless the whole law be thoroughly examined.) Same, sec. 285.
Also; "The connection and relation of things themselves, serve also to discover and establish the true sense of a treaty, or of any other piece. The interpretation ought to be made in such a manner, that all the parts appear consonant to each other; that what follows agree with what went before; at least, if it does not manifestly appear, that by the last clauses, something is changed that went before. For it is presumed that the authors of the treaty have had an uniform and steady train of thought; that they did not desire things which ill agreed with each other, or contradictions; bat rather that they have intended to explain one thing by another; and, in a word, that one and the same spirit reigns throughout the same work, or the same treaty." Same, sec. 286.
The Sup. Court of Mass. says, "When the meaning, of any particular section or clause of a statute is questioned, it is proper to look into the other parts of the statute; otherwise, the different sections of the same statute might be so construed as to be repugnant." 1 Pickering, 250.
Coke says, "It is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute." Co. Lit., 381, b.
The foregoing citations indicate the absolute necessity of the rule, to preserve any kind of coherence or congruity between the different parts of an instrument.
If we were to go out of an instrument, instead of going to other parts of it, to find the meaning of every ambiguous word, we should be liable to involve the whole instrument in all manner of incongruities, contradictions, and absurdities. There are hardly three consecutive lines, of any legal instrument whatever, the sense of which can be understood without reference to other parts of the instrument.
To go out of an instrument, instead of going to other parts of it, to find the sense of an ambiguous word, is also equivalent to saying that the instrument itself is incomplete.
Apply this rule, then, to the word "free" and the words "all other persons." The sense of these words being ambiguous in themselves, the rest of the instrument must be examined to find the persons who may properly be denominated "free persons," and "all other persons." In making this examination, we shall [*182] find no classes mentioned answering to these descriptions, but the native and naturalized persons on the one hand, and those not naturalized on the other.
SIXTH RULE.
A sixth rule of interpretation, and a very important, inflexible, and universal one, applicable to contracts, is, that a contract must never, if it be possible to avoid it, be so construed, as that any one of the parties to it, assuming him to understand his rights, and to be of competent mental capacity to make obligatory contracts, may not reasonably be presumed to have consented to it.
If, for instance, two men were to form a copartnership in business, their contract, if its language will admit of any other possible construction, must not be so construed as to make it an agreement that one of the partners shall be the slave of the other; because such a contract would be unnatural, unreasonable, and would imply that the party who agreed to be a slave was incompetent to make a reasonable, and therefore obligatory, contract.
This principle applies to the constitution of the United States, and to all other constitutions that purport to be established by "the people ;" for such constitutions are, in theory, hut contracts of the people with each other, entered into by them severally for their individual security and benefit. It also applies equally to all statutes made in pursuance of such constitutions, because the statutes derive their authority from the constitutional consent or contract of the people that such statutes may be enacted and enforced. The authority of the statutes, therefore, as much rests on contract, as does the authority of the constitutions themselves. To deny that constitutions and statutes derive their authority from contract, is to found the government on arbitrary power.
By the rule laid down, these statutes and constitutions, therefore, must not be construed, (unless such construction be unavoidable,) so as to authorize anything whatever to which every single individual of "the people" may not, as competent men, knowing [*183] their rights, reasonably be presumed to have freely and voluntarily assented.
Now the parties to the contract expressed in the constitution of the United States, are "the people of the United States," that is, the whole people of the United States. The description given of the parties to the constitution, as much includes those "people of the United States" who were at the time treated as slaves, as those who were not. The adoption of the constitution was not, in theory, the exercise of a right granted to the people by the State legislatures, but of the natural original right of the people themselves, as individuals. (This is the doctrine of the supreme court, as will presently appear.) The slaves had the same natural competency and right to establish, or consent to, government, that others had; and they must be presumed to have consented to it equally with others, if the language of the constitution implies it. We certainly cannot go out of the constitution to find the parties to it. And the constitution affords no legal ground whatever for separating the then "people of the United States" into two classes, and saying that one class were parties to the constitutional contract, and that the other class were not. There would be just as much reason in saying that the terms "the people" used in the constitutions of Massachusetts, Maine, New Hampshire, and Vermont, to describe the parties to those constitutions, do not include all "the people" of those States, as there is for saying that all "the people of the United States" are not included in the constitutional description of them, and are not, therefore, parties to the constitution of the United States.
We are obliged to take this term, "the people," in its broadest sense, unless the instrument itself have clearly and palpably imposed some restriction upon it.
It is a universal rule of courts, that where justice will be promoted by taking a word in the most comprehensive sense in which it can be taken consistently with the rest of the instrument, it must be taken in that sense, in order that as much justice as possible may be accomplished. On the other hand, where a word is unfavorable to justice, it must be taken in its most restricted sense, in order that as little injustice as possible may be accomplished. [*184]
In conformity with this rule, the words, "the people of' the United States," would have to be taken in their most extensive sense, even though they stood but on an equal ground with other words in the instrument. But, in fact, they stand on privileged ground. Their meaning is to be determined before we proceed to the interpretation of the rest of the instrument. The first thing to be ascertained, in regard to an instrument, always is, who are the parties to it; for upon that fact may depend very many important things in the construction of the rest of the instrument. In short, the body of the instrument is to be interpreted with reference to the parties, and not the parties conjectured by reference to the body of the instrument. We must first take the instrument's own, declaration as to who the parties are; and then, if possible, make the body of the instrument express such, and only such, intentions, as all the parties named may reasonably be presumed to have agreed to.
Assuming, then, that all the people of the United States" are parties to the constitutional contract, it is manifest, that it cannot reasonably be presumed that any, even the smallest, portion of them, knowing their natural rights, and being competent to make a reasonable contract of government, would consent to a constitution that should either make them slaves, or assist in keeping them in slavery. Such a construction, therefore, must not be put upon the contract, if the language admits of any other. This rule alone, then, is sufficient to forbid a construction sanctioning slavery.
It may, perhaps, be argued that the slaves were not parties to the constitution, inasmuch as they never, in fact, consented to it. But this reasoning would disfranchise half the population; for there is not a single constitution in the country state, or national into which one half of the people who are, the theory, parties to it, ever, in fact and in forms, agreed. Voting for and under a constitution, are almost the only acts that can, with any reason at all, be considered a formal assent to a constitution. Yet a bare majority [*185] the adult males, or about one tenth of the whole people, is the largest number of "the people" that has ever been considered necessary, in this country, to establish a constitution. And after it is established, only about one fifth of the people are allowed to vote under it, even where suffrage is most extended. So that no formal assent to a constitution is ever given by the people at large. Yet the constitutions themselves assume, and virtually assert, that all "the people" have agreed to them. They must, therefore, be construed on the theory that all have agreed to them, else the instruments themselves are at once denied, and, of course, invalidated altogether. No one, then, who upholds the validity of the constitution, can deny its own assertion, that all "the people'' are parties to it. Besides, no one, unless it be the particular individuals who have not consented, can take advantage of the fact that they have not consented.
And, in practice, we do not allow even such individuals to take advantage of the fact of their nonconsent, to avoid the burdens imposed by the instrument; and not allowing the individuals themselves to take advantage of it for that purpose, no other person, certainly, can be allowed to take advantage of it to shut them out from its protection and benefits.
The consent, then, of "the people" at large is presumed, whether they ever have really consented, or not. Their consent is presumed only on the assumption that the rights of citizenship are valuable and beneficial to them, and that if they understood that fact, they would willingly give their consent in form. Now, the slaves, if they understood that the legal effect of their consenting to the constitution would be "to secure the blessings of liberty to themselves and their posterity," would doubtless all be as ready to give their actual assent to it, as any other portion of "the people" can be. Inasmuch, then, as such would be the legal effect of their consent, there is no other class of "the people of the United States," whose consent to the constitution may, with so much reason, be presumed; because no other class have so much to gain by consenting to it. And since the consent of all is presumed, solely on the ground that the instrument is beneficial to them, regardless of their actual assent, there is no ground for excluding, or for not presuming, the consent of those, whose consent, on account of its beneficial operation upon their interests and rights, can be most reasonably and safely presumed.
But it may, perhaps, be said that it cannot reasonably be pre [*186] sumed that the slaveholders would agree to a constitution, which would destroy their right to their slave property.
One answer to this argument is, that the slaveholders had, at the time, no legal or constitutional right to their slaves, under their State constitutions, as has already been proved; and they must be presumed to have known that such was the fact, for every one is presumed to know the law.
A second answer is, that it is, in law, considered reasonable as it is, in fact, one of the highest evidences of reason for a man voluntarily to do justice, against his apparent pecuniary interests.
Is a man considered non compos mentis for restoring stolen property to its rightful owner, when he might have retained it with impunity? Or are all the men, who have voluntarily emancipated their slaves, presumed to have been fools? incompetent to make reasonable contracts? or even to have had less reason than those who refuse to emancipate? Yet this is the whole argument of those, who say that it cannot be supposed that the slaveholders would agree to a free constitution. The argument would have been good for nothing, even if the then existing State constitutions had authorized slavery.
There would be just as much reason in saying that it cannot be supposed that thieves, robbers, pirates, or criminals of any kind would consent to the establishment of governments that should have authority to suppress their business, as there is in saying that slaveholders cannot be supposed to consent to a government that should have power to suppress slaveholding. If this argument were good for anything, we should have to apply it to the state constitutions, and construe them, if possible, so as to sanction all kinds of crimes which men commit, on the ground that the criminals themselves could not be supposed to have consented to any government that did not sanction them.
The truth is, that however great a criminal a man may have been, it is considered a very reasonable act for him to agree to do justice in future; and therefore, when communities establish governments for the purpose of maintaining justice and right, the assent of all the thieves, robbers, pirates, and slaveholders, is as much presumed, as is the assent of the most honest portion of community. Governments for the maintenance of justice and liberty could not be established by the consent of the whole people on any other ground. [*187]
It would be a delectable doctrine, indeed, for courts to act upon, in construing a constitution, to presume that it was intended to subserve the criminal purposes of a few of the greatest villains in community; and then to force all its honest words to yield to that presumption, on the ground that otherwise these villains could not be presumed to have agreed to it. Yet this is the doctrine practised upon by all who uphold the constitutionality of slavery. They know that the whole people, honest and dishonest, slaveholders and nonslaveholders alike, must be presumed to have agreed either to an honest or a dishonest constitution; and they think it more reasonable to presume that all the honest people agreed to turn knaves, than that all the knaves agreed to become honest. This presumption is the polar star of all their reasonings in favor of the constitutionality of slavery. If this presumption be a true guide in the interpretation of all other constitutions, laws, and contracts, it is, of course, a correct one for interpreting the constitution of the United States; otherwise not.
The doctrine, that an instrument, capable of an honest meaning, is to be construed into a dishonest one, merely because one in forty of the parties to it has been a dishonest man up to the time of making the agreement, (and probably not more than one in forty of "the people of the United States" were slaveholders,) would not only put it nearly or quite out of the power of dishonest men to make contracts with each other that would be held honest in the sight of the law, but it would even put it nearly or quite out of the power of honest men to make contracts with dishonest ones, that would be held honest in the sight of the law. All their contracts, susceptible of a dishonest meaning, would have to be so construed; and what contract is ever entered into by honest with dishonest men, that is not susceptible of such a construction, especially if we may go out of the contract, and inquire into the habits, character, and business of each of the parties, in order to find that one of them is a man who may be suspected of a dishonest motive, and this suspected motive of the one may then be attributed to the others as their true motive.
Such a principle of law would virtually cut off dishonest men from all right to make even honest contracts with their fellowmen, and would be a far greater calamity to themselves than the doctrine that holds all their contracts to be honest, that are susceptible of an honest construction; because it is indispensable to a dishonest man's success and wellbeing in life that a large portion of his contracts should be held honest and valid. [*188]
Under a principle of law, that presumes everybody dishonest, and construes their constitutions, laws, and contracts accordingly, pandemonium would be established at once, in which dishonest men would stand no better chance than others; and would therefore have no more motive than others for sustaining the government.
In short, it is obvious that government would not, and could not, be upheld for an instant, by any portion of society, honest or dishonest, if such a presumption were to be adopted by the courts as a general rule for construing either constitutions, laws, or private contracts. Yet, let it be repeated, and never forgotten, that this presumption is indispensable to such a construction of the constitution as makes slavery constitutional. It is the sine qua non to the whole fabric of the slaveholding argument.
There is, then, no legal ground whatever for not presuming the consent of slaves, slaveholders, and nonslaveholders to the constitution of the United States, on the supposition that it prohibits slavery. Consequently, there is no legal ground for denying that the terms "the people of the United States," included the whole of the then people of the United States. And if the whole of the people are parties to it, it must, if possible, be so construed as to make it such a contract as each and every individual might reasonably agree to. In short, it must, if possible, be so construed as not to make any of the parties consent to their own enslavement. Such a construction is possible, and being possible, is necessarily the true construction.
The constitution of the United States, therefore, would have abolished slavery, by making the slaves parties to it, even though the state constitutions had previously supported it. fn45 [*189]
SEVENTH RULE
The seventh rule of interpretation is the one that has been repeatedly cited from the supreme court of the United States, to wit:
"Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects." [*190]
The pith of this rule is, that any unjust intention must be "expressed with irresistible clearness," to induce a court to give a law an unjust meaning.
The word "expressed" is a very important one, in this rule. It is necessary, therefore, for the benefit of the unprofessional reader, to define it.
In law, a thing is said to be "expressed," only when it is uttered, or written out, embodied in distinct words, in contradistinction to its being inferred, implied, or gathered from evidence exterior to the words of the law.
The amount of the rule, then, is, that the court will never, through inference, nor implication, attribute an unjust intention to a law; nor seek for such an intention in any evidence exterior to the words of the law. They will attribute such an intention to the law, only when such intention is written out in actual terms; and in terms, too, of "irresistible clearness."
The rule, it will be observed, does not forbid a resort to inference, implication, or exterior evidence, to help out the supposed meaning of, or to solve any ambiguities in, a law that is consistent with justice. It only forbids a resort to such means to help out the supposed meaning of, or to solve any ambiguities in, an unjust law. It virtually says that if an ambiguous law can possibly be interpreted favorably to justice, it shall be thus interpreted. But if it cannot be thus interpreted, it shall be suffered to remain inoperative void for its ambiguity rather than the court will help out its supposed meaning by inference, implication, or exterior evidence.
Is this rule a sound one? It is; and for the following reasons:
Certainty is one of the vital principles of law. Properly speaking, nothing is law that is uncertain. A written law is only what is written. It is not certain, any further than it is written. If, then, we go out of the written law, we necessarily go into the region of uncertainty. It must, also, generally be presumed, that the legislature intend nothing more than they have chosen to communicate. It is therefore straining matters, and going beyond strict legal principles, to go out of the words of a law, to find its meaning, in any case whatever, whether for a good purpose, or a bad one.
It will be asked, then, "Why resort to inference, implication, and exterior evidence, to solve the ambiguities in a just law?" The answer is this: Such is the variety of senses in which lan [*191] guage is used by different persons, and such the want of skill in many of those who use it, that laws are very frequently left in some ambiguity. Men, nevertheless, act upon them, assuming to understand them. Their rights thus become involved in the efficacy of the law, and will be sacrificed unless the law be carried into effect. To save these rights, and for no other purpose, the courts will venture to seek the meaning of the law in exterior evidence, when the intent of the law is good, and the apparent ambiguity not great. Strictly speaking, however, even this proceeding is illegal. Nothing but the necessity of saving men's rights, affords any justification for it. But where a law is ambiguous and unjust, there is no such necessity for going out of its words to settle its probable meaning, because men's rights will not be saved, but only sacrificed, by having its uncertainty settled, and the law executed. It is, therefore, better that the law should perish, be suffered to remain inoperative for its uncertainty, than that its uncertainty should be removed, (or, rather, attempted to be removed, for it cannot be removed absolutely, by exterior evidence,) and the law carried into effect for the destruction of men's rights.
Assuming, then, the rule of the court to be sound, are the rules laid down in the "Unconstitutionality of Slavery," fn45 that have since been somewhat questioned, fn46 embraced in it? Those rules are as follows:
1. "One of them is, that where words are susceptible of two meanings, one consistent, and the other inconsistent, with justice and natural right, that meaning, and only that meaning, which is consistent with right, shall be attributed to them, unless other parts of the instrument overrule that interpretation."
This rule is clearly embraced in the rule of the court; for the rule of the court requires the unjust meaning to be "expressed with irresistible clearness," before it can be adopted; and an unjust meaning certainly cannot be said to be "expressed with irresistible clearness," when it is expressed only by words, which, consistently with the laws of language, and the rest of the instrument, are susceptible of an entirely different that is, a perfectly innocent meaning.
2. "Another rule, (if, indeed, it be not the same,) is, that no language except that which is peremptory, and no implication, [*192] except one that is inevitable, shall be held to authorize or sanction anything contrary to natural right."
This rule is also clearly embraced in the rule of the court; for the rule of the court requires that the unjust intention be "expressed," that is, uttered, written out in terms, as distinguished from being inferred, or implied. The requirement, also, that it be "expressed with irresistible clearness," is equivalent to the requirement that the language be "peremptory."
3. "Another rule is, that 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."
This rule is also clearly embraced in the rule of the court; for the rule of the court requires, not only that the unjust intention be "expressed," written out, embodied in words, as distinct from being inferred, implied, or sought in exterior historical evidence, but also that it be embodied in words of "irresistible clearness." Now, words that express their intention with "irresistible clearness," can of course leave no necessity for going out of the words, to "extraneous or historical evidence," to find their intention.
But it is said that these rules are in conflict with the general rule, that where a law is ambiguous, the probable intent of the legislature may be ascertained by extraneous testimony.
It is not an universal rule, as has already been shown, that even where a law, as a whole, is ambiguous, the intentions of the legislature may be sought in exterior evidence. It is only where a just law is ambiguous, that we may go out of its words to find its probable intent. We may never do it to find the probable intent of an unjust one that is ambiguous; for it is better that an unjust law should perish for uncertainty, than that its uncertainty should be solved by exterior evidence, and the law then be executed for the destruction of men's rights.
Where only single words or phrases in a law are ambiguous, as is the case with the constitution of the United States, the rule is somewhat different from what it is where the law, as a whole, is ambiguous. In the case of single words and phrases that are ambiguous, all the rules applicable to ambiguous words and phrases must be exhausted in vain, before resort can be had to evidence exterior to the law, or the words and phrases be set down as sanctioning injustice. For example; to settle the meaning of an ambiguous word or phrase, we must, before going out of the [*193] instrument, refer to all the other parts of the instrument itself, to its preamble, its general spirit and object, its subject matter, and, in the case of the constitution, to "the general system of the laws" authorized and established by it. And the ambiguous word or phrase must be construed in conformity with these, if possible, especially when these are favorable to justice. And it is only when all these sources of light have failed to suggest a just, reasonable, and consistent meaning, that we can go out of the instrument to find the probable meaning.
If, when a single word or phrase were ambiguous, we could at once go out of the instrument, (before going to other parts of it,) to find the probable intent of that single word or phrase, and could determine its intent, independently of its relation to the rest of the instrument, we should be liable to give it a meaning irrelevant to the rest of the instrument, and thus involve the whole instrument in absurdity, contradiction, and incongruity.
There are only four or five single words and phrases in the constitution, that are claimed to be ambiguous in regard to slavery. All the other parts of the instrument, its preamble, its prevailing spirit and principles, its subject matter, "the general system of the laws" authorized by it, all repel the idea of its sanctioning slavery. If, then, the ambiguous words and phrases be construed with reference to the rest of the instrument, there is no occasion to go out of the instrument to find their meaning.
But, in point of fact, the words of a law never are ambiguous, legally speaking, where the alternative is only between a meaning that is consistent, and one that is inconsistent, with natural right; for the rule that requires the right to be preferred to the wrong, is imperative and universal in all such cases; thus making the legal meaning of the word precisely as certain, as though it could, in no case, have any other meaning. It thus prevents the ambiguity, which, but for the rule, might have existed.
This rule, that a just, in preference to an unjust, meaning must be given to a word, wherever it is possible, consistently with the rest of the instrument, obviously takes precedence of the rule that permits a resort to exterior evidence; and for the following reasons:
1. Otherwise, the rule in favor of the just meaning could seldom or never be applied at all, because when we have gone out of the words of the law, we have gone away from those things to which the rule applies. The exterior evidence which we should [*194] find, would not necessarily furnish any opportunity for the application of the rule. This rule, therefore, of preferring the just to the unjust meaning of a word, could hardly have had an existence, except upon the supposition that it was to be applied to the words given in the law itself. And if applied to the words given in the law itself, it of course settles the meaning, and there is then no longer any occasion to go out of the law to find its meaning.
2. Nothing would be gained by going out of a law to find evidence of the meaning of one of its words, when a good meaning could be found in the law itself. Nothing better than a good meaning could be expected to be found by going out of the law. As nothing could be gained, then, by going out of the law, the only object of going out of it would be to find an unjust meaning; but that, surely, is no sufficient reason for going out of it. To go out of a law to find an unjust meaning for its words, when a just meaning could be found in the law itself, would be acting on the principle of subverting all justice, if possible.
3. It would hardly be possible to have written laws, unless the legal meaning of a word were considered certain, instead of ambiguous, in such cases as this; because there is hardly any word used in writing laws, which has not more than one meaning, and which might not therefore be held ambiguous, if we were ever to lose sight of the fact, or abandon the presumption, that justice is the design of the law. To depart from this principle would be introducing universal ambiguity, and opening the door to universal injustice.
4. Certainty and right are the two most vital principles of the law. Yet certainty is always sacrificed by going out of the words of the law; and right is always liable to be sacrificed, if we go out of the words, with liberty to choose a bad meaning, when a good meaning can be found in the words themselves; while both certainty and right are secured by adhering uniformly to the rule of preferring the just to the unjust meaning of a word, wherever the two come in collision. Need anything more be said to prove the soundness of the rule?
The words of a law, then, are never ambiguous, legally speaking, when the only alternative is between a just and an unjust meaning. They are ambiguous only when both meanings are consistent with right, or both inconsistent with it.
In the first of these two cases, viz., where both meanings are consistent with right, it is allowable, for the sake of saving the [*195] rights dependent on the efficacy of the law, to go to extraneous history to settle the probable intention of the legislature. But in the latter case, viz., where both meanings are inconsistent with right, it is not allowable to go out of the words of the law itself, to ascertain the legislative intention. The law must rather be suffered to remain inoperative for its uncertainty.
The rule, quoted from the supreme court, comes fully up to these principles; for that rule requires, in order that an unjust law may be carried into effect, that the unjust intent be "expressed," as distinguished from being inferred, implied, or sought in exterior evidence. It must also be "expressed with irresistible clearness." If it be left in an uncertainty, the law will be construed in favor of the right, if possible; if not, it will be suffered to perish for its ambiguity.
Apply, then, this rule of the court, in all its parts, to the word "free," and the matter will stand thus.
1. A sense correlative with aliens, makes the constitution consistent with natura1 right. A sense correlative with slaves, makes the constitution inconsistent with natural right. The choice must therefore be made of the former sense.
2. A sense correlative with aliens, is consistent with "the general system of the laws" established by the constitution. A sense correlative with slavery, is inconsistent with that system. The former sense then must be adopted.
3. If a sense correlative with aliens be adopted, the constitution itself designates the individuals to whom the word "free," and the words "all other persons" apply. If a sense correlative with slaves be adopted, the constitution itself has not designated the individuals to whom either of these descriptions apply, and we should have to go out of the constitution and laws of the United States to find them. This settles the choice in favor of the former sense.
4. Even if it were admitted that the word "free" was used as the correlative of slaves, still, inasmuch as the constitution itself has not designated the individuals who may, and who may not, be held as slaves, and as we cannot go out of the instrument to settle any ambiguity in favor of injustice, the provision must remain inoperative for its uncertainty; and all persons must be presumed free, simply because the constitution itself has not told us who may be slaves.
Apply the rule further to the words "importation of persons," [*196] and "service and labor," and those words wholly fail to recognize slavery.
Apply me rule only to the word "free," and slavery is unconstitutional; for the words "importation of persons," and "service and labor," can have no claims to be considered recognitions or sanctions of slavery, unless such a signification be first given to the word "free."
EIGHTH RULE.
An eighth rule of interpretation is, that where the prevailing principles and provisions of a law are favorable to justice, and general in their nature and terms, no unnecessary exception to them, or to their operation, is to be allowed.
It is a dictate of law, as of common sense or rather of law, because of common sense that an exception to a rule cannot be established, unless it be stated with at least as much distinctness and certainty as the rule itself, to which it is an exception; because otherwise the authority of the rule will be more clear and certain, and consequently more imperative, than that of the exception, and will therefore outweigh and overbear it. This principle may justly be considered a strictly mathematical one. It is founded simply on the necessary preponderance of a greater quantity over a less. On this principle, an exception to a general law cannot be established, unless it be expressed with at least as much distinctness as the law itself.
In conformity with this principle, it is the ordinary practice, in the enactment of laws, to state the exceptions with the greatest distinctness. They are usually stated in a separate sentence from the rest of the law, and in the form of a proviso, or exception, commencing with the words "Provided, nevertheless," "Excepting, however," or words of that kind. And the language of the proviso is generally even more emphatic than that of the law, as it, in reality, ought to be, to preponderate against it.
This practice of stating exceptions has been further justified, and apparently induced, by that knowledge of human nature which forbids us to understand a man as contradicting, in one sentence what he has said in another, unless his language be incapable of any other meaning. For the same reason, a law, (which is but the expression of men's intentions,) should not be held to contradict, in one sentence, what it has said in another, except the terms be perfectly clear and positive. [*197]
The practice of stating exceptions in this formal and emphatic manner, shows also that legislators have usually, perhaps unconsciously, recognized, and virtually admitted, the soundness of the rule of interpretation, that requires an exception to be stated with at least as much clearness as the taw to which it is an exception.
This practice of stating exceptions in a clear and formal manner, is common even where no violation of justice is involved in the exception; and where an exception therefore involves less violation of reason and probability.
This rule of interpretation, in regard to exceptions, corresponds with what is common and habitual, if not universal, in common life, and in ordinary conversation. If, for instance, a man make an exception to a general remark, he is naturally careful to express the exception with peculiar distinctness; thus tacitly recognizing the right of the other party not to notice the exception, and the probability that he will not notice it, unless it be stated with perfect distinctness.
Finally. Although an exception is not, in law, a contradiction, it nevertheless partakes so strongly of the nature of a contradiction especially where there is no legitimate or rightful reason for it that it is plainly absurd to admit such an exception, except upon substantially the same terms that we admit a contradiction, viz., irresistible clearness of expression.
The question now is, whether there is, in the constitution, any compliance with these principles, in making exceptions in favor of slavery? Manifestly there is none. There is not even an approach to such a compliance. There are no words of exception; no words of proviso; no words necessarily implying the existence or sanction of anything in conflict with the general principles of the instrument.
Yet the argument for slavery, (I mean that founded on the representative clause,) makes two exceptions not one merely, but two and both of the most flagitious and odious characterwithout the constitution's having used any words of proviso or exception; without its having devoted any separate sentence to the exception; and without its having used any words which, even if used in a separate sentence, and also preceded by a "Provided, nevertheless," would have necessarily implied any such exceptions as are claimed. The exceptions are claimed as having been established merely incidentally and casually, in describing the [*198] manner of counting the people for purposes of representation and taxation; when, what is worse, the words used, if not the men common and proper that could have been used, are certainly both common and proper for describing the people, where no exception to "the general system of the laws" established by the constitution is intended.
It is by this process, and this alone, that the argument for slavery makes two exceptions to the constitution; and both, as has already been said, of the most flagitious and odious character.
One of these exceptions is an exception of principle, substituting injustice and slavery, for "justice and liberty."
The other is an exception of persons; excepting a part of "the people of the United States" from the rights and benefits, which the instrument professes to secure to the whole; and exposing them to wrongs, from which the people generally are exempt.
An exception of principle would be less odious, if the injustice were of a kind that bore equally on all, or applied equally to all. But these two exceptions involve not only injustice in principle, but partiality in its operation. This double exception is doubly odious, and doubly inadmissible.
Another insuperable objection to the allowance of these exceptions, is, that they are indefinite especially the latter one. The persons who may be made slaves are not designated. The persons allowed to be made slaves being left in uncertainty, the exception must fail for uncertainty, if for no other reason. We cannot, for the reasons given under the preceding rule, go out of the instrument to find the persons, because it is better that the exception should fail for its uncertainty, than that resort should be had to exterior evidence for the purpose of subjecting men to slavery.
NINTH RULE.
A ninth rule of interpretation is, to be guided, in doubtful cases, by the preamble.
The authority of the preamble, as a guide to the meaning of an instrument, where the language is ambiguous, is established. In fact, the whole object of the preamble is to indicate the objects had in view in the enacting clauses; and of necessity those objects will indicate the construction to be given to the words used in those clauses. Any other supposition would either make the preamble worthless, or, worse than that, deceitful. [*199]
If we are guided by the preamble in fixing the meaning of those clauses that have been claimed for slavery, it is plain that no sanction or recognition of slavery will be found in them; for the preamble declares the objects of the constitution to be, among other things, "justice" and "liberty." fn47
TENTH RULE.
A tenth rule of interpretation is, that one part of an instrument must not be allowed to contradict another, unless the language be so explicit as to make the contradiction inevitable. [*200]
Now the constitution would be full of contradictions, if it tolerated slavery, unless it be shown that the constitution itself has established an exception to all its general provisions, limiting their operation and benefits to persons not slaves. Such an exception or limitation would not, legally speaking, be a contradiction. But I take it for granted that it has already been shown that no such exception can be made out from its words. If no such exception be made out from its words, such a construction must. if possible, be given to each clause of the instrument, as will not amount to a contradiction of any other clause. There is no difficulty in making such a construction; but when made it wilt exclude slavery.
ELEVENTH RULE.
An eleventh rule is one laid down by the supreme court of the United States, as follows:
"An act of congress" (and the rule is equally applicable to the constitution) "ought never to be construed to violate the law of nations, if any other possible construction remains."fn48
This rule is specially applicable to the clause relative to "the importation of persons." If that clause were construed to sanction the kidnapping of the people, of foreign nations, and their importation into this country as slaves, it would he a flagrant violation of that law.
TWELFTH RULE.
A twelfth rule, universally applicable to questions both of fact and law, and sufficient, of itself alone, to decide, against slavery, every possible question that can be raised as to the meaning of the constitution, is this, "that all reasonable doubts must be decided in favor of liberty." fn49
All the foregoing rules, it will be observed, are little other than varied and partial expressions of the rule so accurately, tersely, comprehensively, and forcibly expressed by the supreme court of the United States, viz.: [*201]
"Where rights are infringed, where fundamental principles am overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects."
THIRTEENTH RULE.
A thirteenth rule, and one of great importance, is, that instruments must be so construed as to give no shelter or effect to fraud.
This rule is especially applicable for deciding what meaning we are to give to the word free in the constitution; for if a sense correlative with slavery be given to that word, it will be clearly the result of fraud.
We have abundant evidence that this fraud was intended by some of the framers of the constitution. They knew that an instrument legalizing slavery could not gain the assent of the north. They therefore agreed upon an instrument honest in its terms, with the intent of misinterpreting it after it should be adopted.
The fraud of the framers, however, does not, of itself, implicate the people. But when any portion of the people adopt this fraud in practice, they become implicated in it, equally with its authors. And any one who claims that an ambiguous word shall bear a sense inappropriate to the subject matter of the instrument, contrary to the technical and common meaning of the word, inconsistent with any intentions that all the parties could reasonably be presumed to agree to, inconsistent with natural right, inconsistent with the preamble, and the declared purpose of the instrument, inconsistent with "the general system of the laws" established by the instrument; any one who claims such an interpretation, becomes a participator in the fraud. It is as much fraudulent, in law, for the people of the present day to claim such a construction of the word free, as it was for those who lived at the time the instrument was adopted.
Vattel has laid down two very correct principles to be observed as preventives of fraud. They are these:
1. That it is not permitted to interpret what has no need of interpretation.
2. That if a party have not spoken plainly, when he ought to have done so, that which he has sufficiently declared, shall be taken for true against him.
Vattel's remarks in support of, and in connection with, them principles, are so forcible and appropriate that they will be given [*202] somewhat at length. If he had had in his mind this very fraud which the slaveholders and their accomplices intended to perpetrate by means of the word free in the constitution, he could hardly have said anything better fitting the case.
He says, "That fraud seeks to take advantage even of the imperfection of language; that men designedly throw obscurity and ambiguity into their treaties, to obtain a pretence for eluding them upon occasion. It is then necessary to establish rules founded on reason, and authorized by the law of nature, capable of frustrating the attempts of a contracting power void of good faith. Let us begin with those that tend particularly to this end; with those maxims of justice and equity destined to repress fraud and prevent the effect of its artifices.
"The first general maxim of interpretation is, that it is not permitted to interpret what has no need of interpretation. fn50 When an act is conceived in clear and precise terms, when the sense is manifest and leads to nothing absurd, there can be no reason to refuse the sense which this treaty naturally presents. To go elsewhere in search of conjectures in order to restrain or extinguish it, is to endeavor to elude it. If this dangerous method be once admitted, there will be no act which it will not render useless. Let the brightest light shine on all the parts of the piece, let it be expressed in terms the most clear and determinate; all this shall be of no use, if it be allowed to search for foreign reasons in order to maintain what cannot be found in the sense it naturally presents.
"The cavillers who dispute the sense of a clear and determinate article, are accustomed to draw their vain subterfuges from the pretended intention and views of the author of that article. It would often be very dangerous to enter with them into the discussion of these supposed views, that are not pointed out in the piece itself. This rule is more proper to repel them, and which cuts off all chicanery; if he who can and ought to have explained himself clearly and plainly, has not done it, it is the worse for him; he cannot be allowed to introduce subsequent restrictions which he has [*203] not expressed. This is the maxim of the Roman law; Pactionem obscurarn iis hocere, in quorum fuit potestate legem apertius conscribere. (The harm of an obscure compact shall fall upon those in whose power it was to write the rule plainly.) The equity of this rule is extremely visible, and its necessity is not less evident. There can be no secure conventions, no firm and so]id concession, if these may be rendered vain by subsequent limitations that ought to have been mentioned in the piece, if they were included in the intentions of the contracting powers." Vattel, b. 2, ch. 17, secs. 262, 263, 264.
"On every occasion when a person has, and ought to have shown his intention, we take for true against him what he has SUFFICIENTLY declared. This is an incontestible principle applied to treaties; for if they are not a vain play of words, the contracting parties ought to express themselves with truth, and according to their real intentions. If the intention sufficiently declared, was not taken for the true intention of him who speaks and binds himself, it would be of no use to contract and form treaties." Same, sec. 266.
"Is it necessary, in an enlightened age, to say that mental reservations cannot be admitted in treaties. This is manifest, since by nature even of the treaty, the parties ought to declare the manner in which they would be reciprocally understood. There is scarcely a person at present, who would not be ashamed of building upon a mental reservation. What can be the use of such an artifice, if it was not to lull to sleep some other person under the vain appearance of a contract? It is, then, a real piece of knavery." Same, sec. 275.
"There is not perhaps any language that has not also words which signify two or many different things, or phrases susceptible of more than one sense. Thence arise mistakes in discourse. The contracting powers ought carefully to avoid them. To employ them with design, in order to elude engagements, is a real perfidy, since the faith of treaties obliges the contracting parties to express their intentions clearly. But if the equivocal term has found admission into a public treaty, the interpretation is to make the uncertainty produced by it disappear.
"This is the rule that ought to direct the interpretation in this case. We ought always to give to expressions the sense most suitable to the subject, or to the matter to which they relate. For we endeavor by a true interpretation, to discover the thoughts of those who speak, or of the contracting powers in a treaty. Now it ought to be presumed that he who has employed a word capable of many different significations, has taken it in that which agrees with the subject. In proportion as he employs himself on the matter in question, the terms proper to express his thoughts present themselves to his mind; this equivocal word could then only offer itself in the sense proper to express the thought of him who makes use of it, that is, in the sense agreeable to the subject. It [*204] would be to no purpose to object, that we sometimes have recourse to equivocal expressions, with a view of exhibiting something very different from what one has truly in the mind, and that then the sense which agrees with the subject is not that which answers to the intention of the man who speaks. We have already observed, that whenever a man can and ought to have made known his intention, we may take for true against him what he has sufficiently declared. And as good faith ought to preside in conventions, they are always interpreted on the supposition that it actually did preside in them." Same, sec., 279, 80.
"The reason of the law, or the treaty, that is, the motive which led to the making of it, and the view there proposed, is one of the most certain means of establishing the true sense, and great attention ought to be paid to it whenever it is required to explain an obscure, equivocal and undetermined point, either of a law, or of a treaty, or to make an application of them to a particular case. As soon as we certainly know the reason which done has determined the will of him who speaks, we ought to interpret his words, and to apply them in a manner suitable to that reason alone. Otherwise he will be made to speak and act contrary to his intention, and in a manner opposite to his views.
But we ought to be very certain that we know the true and only reason of the law, the promise, or the treaty. It is not here permitted to deliver ourselves up to vague and uncertain conjectures, and to suppose reason and views where there are none certainly known. If the piece in question is obscure in itself; if in order to know the sense, there are no other means left but to search for the reason of the act, and the views of the author; we must then have recourse to conjecture, and in the want of certainty, receive for true, what is most probable. But it is a dangerous abuse to go, without necessity, in search of reasons and uncertain views, in order to turn, restrain, or destroy, the sense of a piece that is clear enough in itself, and that presents nothing absurd; this is to offend against this incontestible maxim, that it is not permitted to interpret what has no need of interpretation. Much less is it permitted, when the author of a piece has himself there made known his reasons and motives, to attribute to him some secret reason, as the foundation to interpret the piece contrary to the natural sense of the terms. Though he had really the view attributed to him, if he has conceded it, and made known others, the interpretation can only be founded upon these, and not upon the views which the author has not expressed; we take for true against him what he has sufficiently expressed." Same, sec. 287.
FOURTEENTH RULE.
In addition to the foregoing particular rules of interpretation, this general and sweeping one may be given, to wit, that we are [*205] never unnecessary to impute to an instrument any intention whatever which it would be unnatural for either reasonable or honest men to entertain. Such intention can be admitted only when the language will admit of no other construction.
Law is "a rule of conduct." The very idea of law, therefore, necessarily implies the ideas of reason and right. Consequently, every instrument, and every man, or body of men, that profess to establish a law, impliedly assert that the ]aw they would establish is reasonable and right. The law, therefore, must, if possible, be construed consistently with that implied assertion.
RULES CITED FOR SLAVERY.
The rules already given (unless perhaps the fourth) take precedence of all the rules that can be offered on the side of slavery; and, taking that precedence, they decide the question without reference to any others.
It may, however, be but justice to the advocates of slavery, to state the rules relied on by them. The most important are the following:
FIRST RULE CITED FOR SLAVERY.
One rule is, that the most common and obvious sense of a word is to be preferred.
This rule, so far as it will apply to the word free in the constitution, is little or nothing more than a repetition of the rule before given, (under rule fourth,) in favor of the technical meaning of words. It avails nothing for slavery; and for the following reasons:
1. In determining, in a particular case, what is "the most common and obvious meaning" of a word, reference must be had not alone to the sense in which the word is most frequently used in the community, without regard to the context, or the subject to which it is applied; but only to its most common meaning, when used in a similar connection, for similar purposes, and with reference to the same or similar subjects. For example. In a law relative to vessels navigating Massachusetts Bay, or Chesapeake Bay, we must not understand the word bay in the same sense as when we speak of a bay horse, a bay tree, or of a man standing at bay. Nor in a law regulating the rate of discount, or the days of grace, on checks, notes, drafts and orders, must we understand [*206] the word check in the same sense as when we speak of a man's being checked in his career; nor the word note in the same sense as when we speak of notes in music, or of a man of note; nor the word draft in the same sense as when we speak of a ship's draft of water, or of a sketch, plan, or drawing on paper; nor the word order in the same sense as when we speak of a military order, or orders in architecture, or of different orders of men, as the order of dukes, the order of knights, the order of monks, the order of nuns, &;c., &c.
All can see that the meanings of the same words are so different when applied to different subjects, and used in different connections, that written laws would be nothing but jargon, and this rule, utterly ridiculous, unless, in determining the most common and obvious meaning of a word, in any particular case, reference be had to its most common use in similar connections, and when applied to similar subjects, and with similar objects in view.
To ascertain, then, the most "common and obvious meaning" of the word "free," in such a connection as that in which it stands in the constitution, we must first give it a meaning that appropriately describes a class, which the constitution certainly presumes will exist under the constitution. Secondly, a meaning which the whole "people of the United States," (slaves and all,) who are parties to the constitution, may reasonably be presumed to have voluntarily agreed that it should have. Thirdly, we must give it a meaning that will make the clause in which it stands consistent with the intentions which "the people," in the preamble, declare they have in view in ordaining the constitution, viz., "to establish justice," and "secure the blessings of liberty to themselves, (the whole people of the United States,) and their posterity." Fourthly, we must give it a meaning harmonizing with, instead of contradicting, or creating an exception to, all the general principles and provisions of the instrument. Fifthly, such a meaning must be given to it as wilt make the words, "all other persons," describe persons who are proper subjects of" representation" and of taxation as persons. No one can deny that, at the time the constitution was adopted, the most "common and obvious meaning" of the word "free," when used by the whole people of a state or nation, in political instruments of a similar character to the constitution, and in connection with such designs, principles, and provisions are expressed and contained in the constitution, was such as has been claimed for it in this argument, viz., a meaning describing citizens [*207] or persons possessed of some political franchise, as distinguished from aliens, or persons not possessed of the same franchise. Nobody can deny this. On the contrary, everybody who argues that it describes free persons, as distinguished from slaves, admits, and is obliged to admit, that this meaning is either in conflict with, or an exception to, the professed intent, and all the general principles and provisions of the instrument.
If the constitution had purported to have been instituted by a part of the people, instead of the whole; and for purposes of injustice and slavery, instead of "justice and liberty;" and if "the general system of the laws" authorized by the constitution, had corresponded with that intention, there would then have been very good reason for saying that "the most common and obvious meaning" of the word "free," in such a connection, was to describe free persons as distinguished from slaves. But as the constitution is, in its terms, its professed intent, and its general principles and provisions, directly the opposite of all this; and as the word "free" has a "'common and obvious meaning," that accords with these terms, intent, principles, and provisions, its most "common and obvious meaning," in such a connection, is just as clearly opposite to what it would have been in the other connection, as its most common and obvious meaning, in the other connection, would be opposite to the meaning claimed for it in this. This position must either be admitted, or else it must be denied that the connection in which a word stands has anything to do with fixing its most "common and obvious meaning." [*208]
Again. It has already been shown that the most common, and the nearly or quite universal meaning, given to the word free, both in this country and in England, when used in laws of a fundamental character, like the constitution, or, indeed, in any other laws, (for the purpose of designating one person, as distinguished from another living under the same laws,) was not to designate a free person, as distinguished from a slave, but to distinguish a citizen, or person possessed of some franchise, as distinguished from aliens, or persons not possessed of the same franchise. The authority of this rule, then, so far as it regards the most "common'' meaning of this word in the law, is entirely in favor of the argument for freedom, instead of the argument for slavery.
2. But the rule fails to aid slavery for another reason. As has before been remarked, the word "free" is seldom or never used, even in common parlance, as the correlative of slaves, unless when applied to colored persons. A colored person, not a slave, is called a "free colored person." But the white people of the south are never, in common parlance, designated as "free persons," but as white persons. A slaveholder would deem it an insult to be designated as a "free person," that is, using the word free in a sense correlative with slavery, because such a designation would naturally imply the possibility of his being a slave. It would naturally imply that he belonged to a race that was sometimes enslaved. Such an implication being derogatory to his race, would he derogatory to himself. Hence, where two races live together, the one as masters, the other as slaves, the superior race never habitually designate themselves as the "free persons," but by the appropriate name of their race, thus avoiding the implication that they can be made slaves.
Thus we find, that the use of the word "free" was "common," [*209] in the law, to describe those who were citizens, but it was not "common," either in the law, or in common parlance, for describing the white people of the south, as distinguished from their slaves. The rule, then, that requires the most common and obvious meaning of the word to be preferred, wholly fails to give to the word free, as used in the constitution, a meaning correlative with slaves.
3. But in point of fact, the rule that requires us to prefer the most "common and obvious meaning," is of a wholly subordinate and unauthoritative character, when compared with the rules before laid down, except so far as it is necessary to be observed in order to preserve a reasonable connection and congruity of ideas, and prevent the laws from degenerating into nonsense. Further than this, it has no authority to give an unjust meaning to a word that admits of a just one, or to give to a word a meaning, inconsistent*with the preamble, the general principles, or any other provisions, of an instrument. In short, all the rules previously laid down, (unless, perhaps, the fourth, which is nearly or quite synonymous with this,) take precedence of this, and this is of no consequence, in comparison with them, (except as before mentioned,) when they come in conflict. In this case, however, of the word free, there is no conflict. And the same may be said of the words, "held to service or labor," and "the importation of persons," Neither of these two latter forms of expression had probably ever been used in the country, either in law or in common parlance, to designate slaves or slavery. Certainly there had been no common use of them for that purpose; and such, therefore, cannot be said to be either their common or their obvious meaning. But even if such were their common and obvious meaning, it would not avail against the rule in favor of liberty or right, or any of the other rules before laid down.
That the other rules take precedence of this, is proved by the fact, that otherwise those rules could never have had an existence. If this rule took precedence of those, it would invariably settle the question; no other rule of interpretation would ever be required; because, it is not a supposable case, that there can ever be two meanings, without one being more common or obvious than the other. Consequently, there could never be any opportunity to apply the other rules, and they, therefore, could never have had an existence.
If this rule took precedence of the others, all legal interpreta [*210] tion would be resolved into the simple matter of determining which was the most common and obvious meaning of words in particular connections. All questions of written law would thus be resolved into a single question of fact; and that question of fact would have to be decided by a judge, instead of a jury. And a very slight preponderance of evidence, as to the senses in which words are most commonly understood, would often have to determine the question. The judge, too, would have to be presumed omniscient as to the most common and obvious meaning of words, as used by the people at large, each one of whom is known to often use words in different senses, and with different shades of meaning, from all others. And the slightest preponderance of evidence on this point, that should appear to the judge's mind alone, would be sufficient to overrule all those palpable principles of liberty, justice, right, and reason, which the people at large, (who cannot reasonably be presumed to be very critical or learned philologists,) have in view in establishing government and laws. In short, courts, acting on such a principle, would in practice be little or nothing more than philological, instead of legal, tribunals.
Government and laws being established by the people at large, not as philologists, but as plain men, seeking only the preservation of their rights, the words they use must be made to square with that end, if possible, instead of their rights being sacrificed to nice philological criticisms, to which the people are strangers. Not that, in interpreting written laws, the plain and universal principles of philology are to be violated, for the sake of making the laws conform to justice; for that would be equivalent to abolishing all written laws, and abolishing the use of words as a means of describing the laws. But the principle is, that great latitude must be allowed in matters of philology, in accommodation of the various senses in which different men use and understand the same word in the same circumstances; while a severe and rigid adherence is required to principles of natural right, which are far more certain in their nature, and in regard to which all men are presumed to be agreed, and which all are presumed to have in view in the establishment of government and laws. It is much more reasonable to suppose because the fact itself is much more common that men differ as to the meaning of words, than that they differ as to the principles which they try to express by their words. [*211]
No two men, in drawing up the same law, would do it in the same words, owing to their different tastes, capacities, and habits, in the use of language. And yet a law, when written, must, in theory, mean the same to all minds. This necessity of having the law mean the same to all minds, imposes upon courts the necessity of disregarding men's different tastes and habits in the matter of words, and of construing the words of all laws so as to make them conform as nearly as possible to some general principle, which all men are presumed to have in view, and in regard to which all are presumed to be agreed. And that general principle is justice.
The result, then, is, that justice and men's rights the preservation of which is the great object of all the government and laws to which it is a supposable case that the whole people can have agreed must not be staked on the decision of such a nice, frivolous, and uncertain point, as is the one, whether this or that meaning of a word is the more common one in the community, or the more obvious one to the generality of minds, in particular cases, when, in fact, either meaning is grammatically correct, and appropriate to the subject. Instead of such folly and suicide, any meaning, that is consonant to reason in the connection in which the word stands, and that is consistent with justice, and is known and received by society, though less common or obvious than some others, must be adopted, rather than justice be sacrificed, and the whole object of the people in establishing the government be defeated.
So great is the disagreement, even among scholars and lexicographers, as to the meaning of words, that it would be plainly impossible for the most acute scholars to agree upon a code of written laws, having in view the preservation of their natural rights, unless they should also expressly or impliedly agree, that, out of regard to the different senses in which the different individuals of their number might have understood the language in which the laws were written, the courts, in construing those laws, should be allowed very great latitude whenever it Should necessary, for the purpose of finding a sense consistent with justice. And if this latitude would be required in construing an instrument agreed to only by scholars and critics, how much more is it required in construing an instrument agreed to by mankind at large. This rule, then, that prefers the most common and obvious [*212] meaning of words, is a very insignificant and unimportant one, compared with the previous ones; and it can legally be resorted to, only where the prior ones, (unless, perhaps, the fourth,) are either inapplicable to, or have failed to determine the question; as, for instance, in cases where there is involved no question of right or wrong, or of consistency or inconsistency with the preamble, the general principles, or other particular provisions of an instrument; where nothing more than questions of expediency or convenience are concerned. And even a clear case of serious inconvenience only, is sufficient to set aside the rule, unless the language be very explicit. fn52
This rule, in favor of the most common and obvious meaning of words, has never, so far as I am aware, been laid down as decisive, by the Supreme Court of the United States, in any eases where any question of right, consistency, or of great and manifest convenience, was involved. I think it has generally been cited as authoritative, in constitutional questions, only where the doubt was, whether a particular constitutional power had been vested in the general government, or reserved to the states. In such eases, where the power was admitted to be in one government or the other, and where no question of right, of consistency with other parts of the instrument, or of manifest convenience, was involved, the court, very properly assuming that the power might be as rightfully vested in one government as in the other, at the discretion of the people, have held that the doubt should be determined by taking the language of the constitution to have been used in its most common and obvious sense. But such a decision of a mere question as to which of two governments is the depository of a particular power, which is conceded to be vested [*213] in one or the other, has nothing to do with cases where a question of right or wrong is involved, or of consistency with other parts of the instrument, or even where a serious and clear question of inconvenience is concerned.
If, however, that court have, at any time, laid greater stress upon the rule, they are not sustained, either by the reason of things, or by the practice of other courts; nor are they consistent or uniform in the observance of it themselves.fn53
SECOND RULE CITED FOR SLAVERY.
A second rule of interpretation, relied upon by the advocates of slavery, is that where laws are ambiguous, resort may be had to exterior circumstances, history, &c., to discover the probable intention of the lawgivers.
But this is not an universal rule, as has before been shown, (under rule seventh,) and has no application to a question that can be settled by the rules already laid down, applicable to the words themselves. It is evident that we cannot go out of the words of a law, to find its meaning, until all the rules applicable to its words have been exhausted. To go out of a law to find the meaning of one of its words, when a meaning, and a good meaning, can be found in the law, is assuming gratuitously that the law is incomplete; that it has been but partially written; that, in reality, it is not a law, but only a part of a law; and that we have a right to make any additions to it that we please.
Again. When we go out of the words of the law, we necessarily go into the regions of conjecture. We therefore necessarily [*214] sacrifice certainty, which is one of the vital principles of the law. This cannot be done for any bad purpose. It can only be done to save rights, (not to accomplish wrongs,) depending on the efficacy of the law.
To go out of a law to find a bad meaning, when a good meaning can be found in the law, is also to sacrifice right, the other vital principle of law. So that both certainty and right would be sacrificed by going out of the constitution to find the meaning, or application, of the word free; since an appropriate and good meaning is found in the instrument itself.
Further. It has before been shown, (under rule seventh,) that a word is not, legally speaking, "ambiguous," when the only question is between a just and an unjust meaning; because the rule, which requires the right to be preferred to the wrong, being uniform and imperative, makes the meaning always and absolutely certain; and thus prevents the ambiguity that might otherwise have existed.
It is true that, in a certain sense, such a word may be called "ambiguous," but not in a legal sense. Almost every word that is used in writing laws, might be called ambiguous, if we were allowed to lose sight of the fact, or unnecessarily abandon the presumption, that the law is intended for purposes of justice and liberty.
But this point has been so fully discussed in the former part of this chapter, (under rule seventh,) that it need not now be discussed at length.
It is not to be forgotten, however, that even if we go out of the constitution to find the meaning of the word free, and resort to all the historical testimony that is of a nature to be admissible at al}, we shall still be obliged to put the same construction upon it as though we take the meaning presented by the constitution itself. The use of the word in' all laws of a similar character, and even of a dissimilar character, to the constitution, fixes this meaning. The principles of liberty, prevailing in the country generally, as evidenced by the declaration of independence, and the several State constitutions, and constituting at least the paramount, the preponderating, law, in every State of the Union, require the same meaning to be given to the word.
The fact, that this prevailing principle of liberty, or this general principle of law, was, at that time, violated by a small portion, (perhaps one fortieth,) of the community, (the slaveholders,) fur [*215] nishes no legal evidence against this construction; because the constitution, like every other law, presumes everybody willing to do justice, unless the contrary explicitly appear in the instrument itself. This is a reasonable presumption, both in fact and in taw, as has before been suggested, (under rule sixth.) What court ever laid down the rule that an instrument was "ambiguous," or that an unjust meaning must be given to it, because its just meaning was more just than the parties, or some few of the parties, could reasonably be presumed to have intended the instrument should be? If this idea were admissible, as a rule of interpretation, all our most just and equitable laws are liable to be held ambiguous, and to have an unjust construction put upon them (if their words will admit of it,) on the ground of their present construction being more just than some portion of the community, for which they were made, could be presumed to desire them to be. The slaveholders, then, must be presumed to have been willing to do justice to their slaves, if the language of the constitution implies it, whether they were really willing or not. No unwillingness to do justice can be presumed on the part of the slaveholders, any more than on the part of any other of the parties to the constitution, as an argument against an interpretation consistent with liberty.
Again. The real or presumed intentions of that particular portion of the "people," who were slaveholders, are of no more legal consequence towards settling ambiguities in the constitution, than are the real or presumed intentions of the same number of slaves; for both slaves and slaveholders, as has been shown, (under rule sixth,) were, in law, equally parties to the constitution. Now, there were probably five or ten times as many slaves as slaveholders. Their intentions, then, which can be presumed to have been only for liberty, overbalance all the intentions of the slaveholders. The intentions of all the nonslaveholders, both north and south, must also be thrown into the same scale with the intentions of the slaves the scale of liberty.
Bat further. The intentions of all parties, slaves, slaveholders, and no, nonslaveholders, throughout the country, must be presumed ,to have been precisely alike, because, in theory, they all agreed to the same instrument. There were, then, thirty, forty, or fifty, who must be presumed to have intended liberty, where there was but one that intended slavery. If, then, the intentions, principles, and interests, of overwhelming majorities of "the people," who "ordained and established the constitution," are to have any [*216] weight in settling ambiguities in it, the decision must be in favor of liberty. fn54
But it will be said that, in opposition to this current of testimony, furnished by the laws and known principles of the nation at large, we have direct historical evidence of the intentions of particular individuals, as expressed by themselves at or about the time.
One answer to this argument is, that we have no legal evidence whatever of any such intentions having been expressed by a single individual in the whole nation.
Another answer is, that we have no authentic historical evidence of such intentions having been expressed by so many as five hundred individuals. If there be such evidence, where is it? and who were the individuals? Probably not even one hundred such can be named. And yet this is all the evidence that is to be offset against the intentions of the whole "people of' the United States," as expressed in the constitution itself, and in the general current of their then existing laws.
It is the constant effort of the advocates of slavery, to make the constitutionality of slavery a historical question, instead of a legal one. In pursuance of this design, they are continually citing the opinions, or intentions, of Mr. A, Mr. B, and Mr. C, as handed down to us by some history or other; as if the opinions and intentions of these men were to be taken as the opinions and intentions of the whole people of the United States; and as if the irresponsible statements of historians were to be substituted for the constitution. If the people of this country have ever declared that these fugitive and irresponsible histories of the intentions and sayings of single individuals here and there, shall constitute the constitutional law of the country, be it so; but let us be consistent, burn [*217] the constitution, and depend entirely upon history. It is nothing but folly, and fraud, and perjury, to pretend to maintain, and swear to support, the constitution, and at the same time get our constitutional law from these irresponsible sources.
If every man in the country, at the time the constitution was adopted, had expressed the intention to legalize slavery, and that fact were historically well authenticated, it would be of no legal importance whatever and why? Simply because such external expressions would be no part of the instrument itself.
Suppose a man sign a note for the payment of money, but at the time of signing it declare that it is not his intention to pay it, that he does not sign the note with such an intention, and that he never will pay it. Do all these declarations alter the legal character of the note itself, or his legal obligation to pay? Not at all
and why V Because these declarations are no part of that particular promise which he has expressed by signing the note. So if every man, woman, and child in the Union, at the time of adopting the constitution, had declared that it was their intention to sanction slavery, Such declarations would all have been but idle wind and why? Because they are no part of that particular instrument, which they have said shall be the supreme ]aw of the land. If they wish to legalize slavery, they must say so in the constitution, instead of saying so out of it. By adopting the constitution, they say just what, and only what, the constitution itself expresses.
THIRD RULE CITED FOR SLAVERY.
A third rule of interpretation, resorted to for the support of slavery, is the maxim that "Usage is the best interpreter of laws."
If by this rule be meant only that the meaning to be applied to a word in a particular case ought to be the same that has usually been applied to it in other cases of a similar nature, we can, of course, have no objection to the application of the rule to the word "free;" for usage; as has already been shown, will fix upon it a meaning other than as the correlative of slaves.
Or if by this rule be meant that all laws must be interpreted according to those rules of interpretation which usage has established, that is all that the advocates of liberty can desire, in the interpretation of the constitution. But if the rule requires that after a particular law has once, [*218] twice, or any number of times, been adjudicated upon, it must always be construed as it always has been, the rule is ridiculous; ;t makes the interpretation given to a law by the courts superior to the law itself; because the law had a meaning of its own before any "usage" had obtained under it, or any judicial construction had been given to it.
It is the original meaning of the constitution itself that we are now seeking for; the meaning which the courts were bound to put upon it from the beginning; not the meaning they actually have put upon it. We wish to determine whether the meaning which they have hitherto put upon it be correct. To settle this point, we must go back to the rules applicable to the instrument itself, before any judicial constructions had been given to it. All constructions put upon it by the courts or the government, since the instrument was adopted, come too late to be of any avail in settling the meaning the instrument had at the time it was adopted certainly unless it be impossible to settle its original meaning by any rules applicable to the instrument itself.
We charge the courts with having misinterpreted the instrument from the beginning; with having violated the rules that were applicable to the instrument before any practice or usage had obtained under it. This charge is not to be answered by saying that the courts have interpreted it as they have, and that that interpretation is now binding, on the ground of usage, whether it were originally right or wrong. The constitution itself is the same now that it was the moment it was adopted. It cannot have been altered by all the false interpretations that may have been put upon it.
If this rule were to be applied in this manner to the constitution, it would deserve to be regarded as a mere device of the courts to maintain their own reputations for infallibility, and uphold the usurpations of the government on which they are dependent, rather than a means of ascertaining the real character of the constitution. fn55 [*219]
But perhaps it will be said, that by usage is meant the practice of the people. It would be a sufficient answer to this ground to say, that usage, against law and against right, can neither abolish nor change the law, in any case. And usage is worth nothing in the exposition of a law, except where the law is so uncertain that its meaning cannot be settled by the rules applicable to its words. Furthermore, it is only ancient usage that is, in any case, of any considerable importance. This whole matter of usage is well disposed of in the note. fn56
FOURTH RULE CITED FOR SLAVERY.
A fourth rule of interpretation, relied on for the support of slavery, is that the words of a law must be construed to subserve the intentions of the legislature. So also the words of a contract [*220] must be construed to subserve the intentions of the parties. And the constitution must be construed to subserve the intentions of "the people of the United States."
Those who quote this rule in favor of slavery, assume that it was the intention of "the people of the United States" to sanction slavery; and then labor to construe all its words so as to make them conform to that assumption.
But the rule does not allow of any such assumption. It does not supersede, or at all infringe, the rule that "the intention of the legislature is to be collected from the words they have used to convey it." fn57 This last rule is obviously indispensable to make written laws of any value; and it is one which the very existence of written laws proves to be inflexible; for if the intentions could be assumed independently of the words, the words would be of no use, and the laws of course would not be written.
Nor does this rule, that words are to be construed so as to subserve intentions, supersede, or at all infringe, the rule, that the intentions of the legislature are to be taken to be just what their words express, whether such be really their intentions or not. fn58 [*221]
The two rules, that "words must be construed to subserve intentions," and that "intentions must be collected from the words," may, at first view, appear to conflict with each other. There is, however, no conflict between them. The rule, that words must be construed to subserve intentions, applies only to ambiguous words; to those words which, on account of their ambiguity, need to be construed; and it assumes that the intentions of the law have been made known by other words, that are not ambiguous. The whole meaning of the rule, then, is, that the intentions of AMBIGUOUS words must be construed in conformity with the intentions expressed in those words that are explicit.
Where no intentions are explicitly revealed, the court will presume the best intentions of which the words, taken as a whole, are capable; agreeably to the rule cited from the Supreme Court of Massachusetts, viz., "It is always to be presumed that the legislature intend the most beneficial construction of their acts, when the design of them is not apparent." 4 Mass., 537.
This rule, then, that the ambiguous words of an instrument must be construed to subserve the intentions expressed by other words, that are explicit, requires that the ambiguous words in the constitution (if there are any such) be construed in favor of liberty, instead of slavery. [*222]
Thus have been stated and examined all the rules of interpretation, (with the exception of one, to be named hereafter,) that occur to me as being of any moment in this discussion. And I think the soundness and permanent authority of those that make for liberty and justice, if indeed they do not all make for liberty and justice, have been shown.
But of the reason and authority of all these rules, the reader must of necessity judge for himself; for their whole authority rests on their reason, and on usage, and not on any statute or constitution enacting them.<*FN> And the way for the reader to judge of their soundness, is, for him to judge whether they are the rules by which he wishes his own contracts, and the laws on which he himself relies for protection, to be construed. Whether, in fact, honest contracts, honest laws, and honest constitutions, can be either agreed upon, or sustained, by mankind, if they are to be construed on any other principles than those contained in these rules.
If he shall decide these questions in favor of the rules, he may then properly consider further, that these were the received rules of legal interpretation at the time the constitution was adopted, and had been for centuries. That they had doubtless been the received rules of interpretation from the time that laws and contracts were first formed among men; inasmuch as they are such as alone can secure men's rights under their honest contracts, and under honest laws, and inasmuch also as they are such as unprofessional and unlearned men naturally act upon, under the dictates of common sense, and common honesty.
If it now be still objected that the people, or any portion of them, did not intend what the constitution, interpreted by the preceding rules, expresses, the answer is this.
We must admit that the constitution, of itself, independently of the actual intentions of the people, expresses some certain, fixed, definite, and legal intentions; else the people themselves would express no intentions by agreeing to it. The instrument would, in fact, contain nothing that the people could agree to. Agreeing to an instrument that had no meaning of its own, would only be agreeing to nothing. [*223]
The constitution, then, must be admitted to have a meaning of its own, independently of the actual intentions of the people. And if it be admitted that the constitution has a meaning of its own, the question arises, What is that meaning? And the only answer that can be given is, that it can be no other than the meaning which its words, interpreted by sound legal rules of interpretation, express. That, and that alone, is the meaning of the constitution. And whether the people who adopted the constitution really meant the same things which the constitution means, is a matter which they were bound to settle, each individual with himself, before he agreed to the instrument; and it is therefore one with which we have now nothing to do. We can only take it for granted that the people intended what the constitution expresses, because, by adopting the instrument as their own, they declared that their intentions corresponded with those of the instrument. The abstract intentions, or meaning, of the instrument itself, then, is all that we have now any occasion to ascertain. And this we have endeavored to do, by the application of the foregoing rules of interpretation.
It is perfectly idle, fraudulent, and futile, to say that the people did not agree to the instrument in the sense which these rules fix upon it; for if they have not agreed to it in that sense, they have not agreed to it at all. The instrument itself, as a legal instrument, has no other sense, in which the people could agree to it. And if the people have not adopted it in that sense, they have not yet adopted the constitution; and it is not now, and never has been, the law of the land.
There would be just as much reason in saying that a man who signs a note for the payment of five hundred dollars, does not sign it in the legal sense of the note, but only in the sense that he will not pay, instead of the sense that he will pay, so much money, as there is in saying that the people did not agree to the constitution in its legal sense, but only in some other sense, which slaveholders, pirates, and thieves might afterwards choose to put upon it.
Besides, does any one deny that all the rest of the constitution, except what is claimed for slavery, was agreed to in the sense which these rules put upon it? No decent man will make such a denial. Well, then, did not the people intend that all parts of the same instrument should be construed by the same rules? Or do the advocates of slavery seriously claim that three or four millions of people, thinly scattered over thirteen states, and having no opportunity for concert, except by simply saying yea, or nay, to the [*224] instrument presented to them, did, nevertheless, at the time of agreeing to the instrument, agree, also, by means of some mysterious, invisible, miraculous intercourse, that the slave clauses, us they are called, should be construed by directly opposite rules from all the rest of the instrument? Even if they did so agree, such agreement would be no part of the constitution; but if they did not, they certainly did not agree to sanction slavery. No matter what any, or all, of them said before, or after, or otherwise than by, the adoption of the instrument. What they all said by the single act of adoption, is all that had any effect in establishing the constitutional law of the country.
Certainly, the whole instrument must be construed by uniform rules of interpretation. If, then, the slave clauses, as they are called, are construed so as to sanction slavery, all the rest of the instrument must be construed to sanction all possible iniquity and injustice of which its words can be made to insinuate a sanction. More than this. "The laws passed in pursuance of the constitution," must of course be construed by the same rules as the constitution itself. If, then, the constitution is to be construed as adversely as possible to liberty and justice, all "the laws passed in pursuance of it" must be construed in the same manner. Such are the necessary results of the arguments for slavery.
Nothing can well be more absurd than the attempt to set up the real or pretended intentions of a few individuals, in opposition to the legal meaning of the instrument the whole people have adopted, and the presumed intentions of every individual who was a party to it. Probably no two men, framers, adopters, or any others, ever had the same intentions as to the whole instrument; and probably no two ever will. If, then, one man's actual intentions are of any avail against the legal meaning of the instrument, and against his presumed intentions, any and every other man's actual intentions are of equal importance; and consequently, in order to sustain this theory of carrying into effect men's actual intentions, we must make as many different constitutions out of this one instrument, as there were, are, or may be, different individuals who were, are, or may be, parties to it.
But this is not all. It is probable that, as matter of fact, four fifths, and, not unlikely, nine tenths, of all those who were legally parties to the constitution, never even read the instrument, or had any definite idea or intention at all in regard to the relation it was to bear, either to slavery, or to any other subject. Every inhab [*225] itant of the country, man, woman, and child, was legally a party to the constitution, else they would not have been bound by it. Yet how few of them read it, or formed any definite idea of its character, or had any definite intentions about it. Nevertheless, they are all presumed to have read it, understood it, agreed to it, and to have intended just what the instrument legally means, as well in regard to slavery as in regard to all other matters. And this presumed intention of each individual, who had no actual intention at all, is of as much weight in law, as the actual intention of any of those individuals, whose real or pretended intentions have been so much trumpeted to the world. Indeed the former is of altogether more importance than the latter, if the latter were contrary to the legal meaning of 'the instrument itself.
The whole matter of the adoption of the constitution is mainly a matter of assumption and theory, rather than of actual fact. Those who voted against it, are just as much presumed to have agreed to it, as those who voted for it. And those who were not allowed to vote at all, are presumed to have agreed to it equally with the others. So that the whole matter of the assent and intention of the people, is, 'in reality, a thing of assumption, rather than of reality. Nevertheless, this assumption must be taken for fact, as long as the constitution is acknowledged to be law; because the constitution asserts it as a fact, that the people ordained and established it; and if that assertion be denied, the constitution itself is denied, and its authority consequently invalidated, and the government itself abolished.
Probably not one half, even, of the male adults ever so much as read the constitution, before it was adopted. Yet they are all presumed to have read it, to have understood the legal rules of interpreting it, to have understood the true meaning of the instrument, legally interpreted, and to have agreed to it in that sense, and that only. And this presumed intention of persons who never actually read the instrument, is just as good as the actual intention of those who studied it the most profoundly; and better, if the latter were erroneous.
The sailor, who started on a voyage before the constitution was framed, and did not return until after it was adopted, and knew nothing of the matter until it was all over, is, in ]aw, as much a party to the constitution as any other person. He is presumed to have read it, to have understood its legal meaning, and to have agreed to that meaning, and that alone; and his presumed intention [*226] is of as much importance as the actual intention of George Washington, who presided over the convention that framed it, and took the first presidential oath to support it. It is of altogether more consequence than the intention of Washington, if Washington intended anything different from what the instrument, legally interpreted, expresses; for, in that case, his intention would be of no legal consequence at all.
Men's presumed intentions were all uniform, all certainly right, and all valid, because they corresponded precisely with what they said by the instrument itself; whereas their actual intentions were almost infinitely various, conflicting with each other, conflicting with what they said by the instrument, and therefore of no legal consequence or validity whatever.
It is not the intentions men actually had, but the intentions they constitutionally expressed; that make up the constitution. And the instrument must stand, as expressing the intentions of the people, (whether it express them truly or not,) until the people either alter its language, or abolish the instrument. If "the people of the United States" do not like the constitution, they must alter, or abolish, instead of asking their courts to pervert it, else the constitution itself is no law.
Finally. If we are bound to interpret the constitution by any rules whatever, it is manifest that we are bound to do it by such rules as have now been laid down. If we are not bound to interpret it by any rules whatever, we are wholly without excuse for interpreting it in a manner to legalize slavery. Nothing can justify such an interpretation but rules of too imperative a character to be evaded. fn62
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CHAPTER XVIII.
SERVANTS COUNTED AS UNITS.
THE constitution (Art. 1, Sec. 2) requires that the popular basis of representation and taxation be made up as follows, to wit:
"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."
If the word free, in this clause, be used as the correlative of slaves, and the words "all other persons" mean slaves, the words "including those bound to service for a term of years" are sheer surplusage, having no legal force or effect whatever; for the persons described by them would of course have been counted with the free persons, without the provision. If the word free were used as the correlative of slaves at al!, it was used as the correlative of slaves alone, and not also of servants for a term of years, nor of prisoners, nor of minors under the control of their parents, nor of persons under any other kind of restraint whatever, than the simple one of chattel slavery. fn63
It was, therefore, wholly needless to say that "persons bound to service for a term of years" should not be counted in the class with slaves, for nobody, who understood the word free as the correlative of slaves, would have imagined that servants for a term of years were to be included in the class with slaves. There would have been nearly or quite as much reason in saying that minors under the control of their parents, persons under guardianship, prisoners for debt, prisoners for crime, &c., should not be counted in the class with slaves, as there was in saying that servants for a term of years should not be counted in that class. In fact, the whole effect of the provision, if it have any, on the slave hypothesis, is to imply that all other persons under restraint, except [*238] "those bound to service for a term of years," shall be counted in the class with slaves; because an exception of particular persons strengthens the rule against all persons not excepted. So that, on the slave hypothesis, the provision would not only be unnecessary in favor of the persons it describes, but it would even be dangerous in its implications against persons not included in it.
But we are not allowed to consider these words even as surplusage, if any reasonable and legal effect can be given them. And under the alien hypothesis they have such an effect.
Of the "persons bound to service for a term of years" in those days, large numbers were aliens, who, but for this provision, would be counted in the three fifths class. There was, nevertheless, a sound reason why they should be distinguished from other aliens, and be counted as units, and that was, that they were bound to the country for a term of years as laborers, and could not, like other aliens, be considered either a transient, unproductive, or uncertain population. Their being bound to the country for a term of years as laborers, was, to all practical purposes, equivalent to naturalization; for there was little or no prospect that such persons would ever leave the country afterwards, or that, during their service, they would recognize the obligations of any foreign allegiance.
On the alien hypothesis, then, the words have an effect, and a reasonable one. On the slave hypothesis, they either have no effect at all, or one adverse to all persons whatsoever that are under any kind of restraint, except servants for a term of years.
CHAPTER XIX.
SLAVE REPRESENTATION.
The injustice to the North that is involved in allowing slaves, who can have no rights in the government, who can owe it no allegiance, who are necessarily its enemies, and who therefore weaken, instead of supporting it the injustice and inequality of allowing such persons to be represented at all in competition with those who alone have rights in the government, and who alone support it, is so palpable and monstrous, as utterly to forbid any such construction being put upon language that does not necessarily mean it. The absurdity, also, of such a representation, is, if possible, equal to its injustice. We have no right legal rules, that [*239] are universally acknowledged, imperatively forbid us unnecessarily to place upon the language of an instrument a construction, that either stultifies the parties to it to such a degree as the slave construction does the people of the North, or that makes them consent to having such glaring and outrageous injustice practised upon them.
But it will be said in reply to these arguments, that, as a compensation to the North for the injustice of slave representation, all direct taxes are to be based on population; that slaves are to be counted as three fifths citizens, in the apportionment of those taxes; and that the injustice of the representation being thus compensated for, by a corresponding taxation, its absurdity is removed.
But this reply is a mere assumption of the fact that the constitution authorizes slave taxation; a fact, that, instead of being assumed, stands only on the same evidence as does the slave representation, and therefore as much requires to be proved by additional evidence, as does the representation itself. The reply admits that the slave representation is so groundless, absurd, unequal, and unjust, that it would not be allowable to put that construction upon the clause, if it had provided only for representation. Yet it attempts to support the construction by alleging, without any additional evidence, that the direct taxation, (if there should ever be any direct taxation,) was to be on the same absurd principle. But this is no answer to the objection. It only fortifies it; for it accuses the constitution of two absurdities, instead of one, and does it upon evidence that is admitted to be insufficient to sustain even one. And the argument for slavery does, in reality, accuse the constitution of these two absurdities, without bringing sufficient evidence to prove either of them. Not having sufficient evidence to prove either of these absurdities, independently of the other, it next attempts to make each absurdity prove the other. But two legal absurdities, that are proved only by each other, are not proved at all. And thus this whole fabric of slave representation and slave taxation falls to the ground.
Undoubtedly, if the clause authorizes slave representation, it also authorizes slave taxation; or if it authorizes slave taxation, it undoubtedly authorizes slave representation. But the first question to be settled is, whether it authorizes either? And this certainly is not to be answered in the affirmative, by simply saying that, if it authorizes one, it authorizes the other. [*240]
If any one wishes to prove that the clause authorizes slave representation, he must first prove that point independently of the taxation, and then he may use the representation to prove the taxation; or else he must first prove the slave taxation, and then he may use the taxation to prove the representation. But he cannot use either to prove the other, until he has first proved one independently of the other; a thing which probably nobody will ever undertake to do. No one certainly will ever undertake to prove the representation independently of the taxation; and it is doubtful whether any one will ever undertake to prove the taxation, independently of the representation. The absurdity and incongruity of reckoning one single kind of property as persons, in a government and system of taxation founded on persons, are as great as would be that of valuing one single class of persons as property, in a government and system of taxation founded on property. The absurdity and incongruity in each case would be too great to be allowable; if the language would admit, (as in this case it does admit,) of another and reasonable construction.
Nevertheless, if any one should think that this slave taxation is not a thing so absurd or unjust as to forbid that construction, still, the fact that, if that construction be established, the absurd and unjust representation will follow as a consequence from it, is a sufficient reason why it cannot be adopted. For we are bound to make the entire clause harmonious with itself if possible; and, in doing so, we are bound to make it reasonable throughout, if that be possible, rather than absurd throughout.
I have thus far admitted, for the sake of the argument, the common idea, that the taxation, which the slave construction of this clause would provide for, would be some compensation to the North, for the slave representation. But, in point of fact, it would not necessarily be any compensation at all; for it is only direct taxes that are to be apportioned in this manner, and the government is net required to lay direct taxes at all. Indeed, this same unjust representation, which it is claimed that the clause authorizes, may be used to defeat the very taxation which it is said was allowed as an equivalent for it. So that, according to the slave argument, the unjust representation is made certain, while the compensating taxation is made contingent; and not only contingent, but very likely contingent upon the will of the unjust representation itself. Here, then, are another manifest and gross absurdity and injustice, which the slave construction is bound to overcome, before it can be adopted. [*241]
But suppose the taxation had been made certain, so as to correspond with, and compensate for, the representation what then? The purport of the clause would then have been, that the North said to the South, "We will suffer you to govern us, (by means of an unequal representation,) if you will pay such a portion, (about one sixth,) of our taxes" Certainly no construction, unless an unavoidable one, is allowable, that would fasten upon the people of the north the baseness and the infamy of having thus bargained away their equal political power for money; of having sold their freedom for a price. But when it is considered how paltry this price was, and that its payment was not even guarantied, or likely ever to be made, such a construction of the contract would make the people of the North as weak and foolish, as infamous and despicable. Is there a man in the whole northern states, that would now consent to such a contract for himself and his children No. What right, then, have we to accuse all our fathers, (fathers too who had proved their appreciation of liberty by risking life and fortune in its defence,) of doing what none of us would do. No legal rules of interpretation, that were ever known to any decent tribunal, authorize us to put such a construction upon their instrument as no reasonable and honorable man would ever have agreed to. There never lived a man in the northern states, who would have consented to such a contract, unless bribed or moved to it by some motive beyond his proportionate share in such a price. Yet this price is all the motive that can be legally assigned for such a contract; for the general benefits of the Union must be presumed to have been equal to each party. If any difference were allowable in this respect, it must have been in favor of the North, for the South were the weaker party, and needed union much more than the north.
This question has thus far been treated as if the South had really made some pretence, at least, of paying more than her share of taxation. But this is by no means the true mode of presenting the question; because these persons, it must be remembered, whom it is claimed were to be represented and taxed only as three fifths of a person each, were legally free by the then existing State constitutions; and, therefore, instead of being slaves, not entitled to be represented or taxed at all as persons, were really entitled to be represented, and liable to be taxed, as units, equally with the other people of the United States. All this the North must be presumed to have known. The true mode of presenting the ques- [*242] tion, therefore is this, viz., 1. Whether the South, for the privilege, of enslaving a portion of her people, of holding them in slavery under the protection of the North, and of saving two fifths of her direct taxation upon them, agreed to surrender two fifths of her representation on all she should enslave? and, 2. Whether the North, in order to secure to herself a superiority of representation, consented to the enslavement of a portion of the Southern people, guarantied their subjection, and agreed to abate two fifths of the direct taxation on every individual enslaved? This is the true mode of presenting the subject; and the slave construction of the clause answers these questions in the affirmative. It makes the North to have purchased for herself a superior representation, and to have paid a bounty on slavery, by remitting taxes to which the South would have been otherwise liable; and it makes the South to have bartered away her equal representation, her equal political power makes her, in fact, to have sold her own liberties to the North, for a pitiful amount of taxation, and the privilege of enslaving a part of her own people.
Such is the contract infamous on the part of both North and South, and base, suicidal, and servile on the part of the South which the slave construction would make out of this provision of the constitution. Such a contract cannot be charged upon political communities, unless it be "expressed with irresistible clearness." Much less can it be done on the evidence of language, which equally well admits of a construction that is rational, honorable, and innocent, on the part of both.
The construction which legal rules require, to wit, that "free persons" mean the citizens, and "all other persons" the aliens, avoids all these obstacles in the way of making this clause an honorable, equal, and reasonable contract.
CHAPTER XX.
WHY ALIENS ARE COUNTED AS "THREE FIFTHS."
These are both justice and reason in a partial representation, and a partial taxation, of aliens. They are protected by our laws, and should pay for that protection. But as they are not allowed the full privileges of citizens, they should not pay an equal tax with the citizens. They contribute to the strength and resources [*243] of the government, and therefore they should be represented. But as they are not sufficiently acquainted with our system of government, and as their allegiance is not made sufficiently sure, they are not entitled to an equal voice with the citizens, especially if they are notequally taxed.
But it has been argued that aliens were likely to be in about equal numbers in all the States, in proportion to the citizens; and that therefore no great inequality would have occurred, if no separate account had been taken of them. But it is not true that aliens were likely to be in equal numbers in the several States in proportion to the citizens. Those States whose lands were already occupied, like Connecticut, Rhode Island, and Massachusetts, (exclusive of Maine,) and who could not expect to retain even so much as their natural increase of population, could not expect to receive the same additions to it by the immigration of foreigners as New York, Pennsylvania, and other States, that still had immense bodies of unoccupied lands. And none of the old thirteen States could expect long to have the same proportion of aliens as the new States that were to be opened in the west. And even those new States, that were then about to be opened, would soon become old, and filled with citizens, compared with other States that were to be successively opened still further west.
This inequality in the proportion of aliens in the respective States, was then, and still is, likely to be for centuries an important political element; and it would have been weak, imprudent, shortsighted, and inconsistent with the prevailing notions of that time, of all previous time, and of the present time, for the constitution to have made no provision in regard to it. And yet, on the slave hypothesis, the constitution is to be accused of all this weakness, imprudence, shortsightedness, and inconsistency; and, what is equally inadmissible, is to be denied all the credit of the intentions, which, on the alien hypothesis, the clause expresses; intentions, the wisdom, justice, and liberality of which are probably more conspicuous, and more harmoniously blended, than in any other provision in regard to aliens, that any nation on earth ever established, before or since.
It is as unnatural and absurd, in the interpretation of an instrument, to withhold the credit of wise and good intentions, where the language indicates them, as it is to attribute bad or foolish ones, [*244] where the language does not indicate them. And hence the positive merits of this clause, on the alien hypothesis, are entitled to the highest consideration; and are moreover to be contrasted with its infamous demerits, on the slave hypothesis.
The preceding view of this clause is strongly confirmed by other parts of the constitution. For example: The constitution allows aliens, equally with the citizens, to vote directly in the choice of representatives to congress, and indirectly for senators and president, if such be the pleasure of the State governments. Yet they are not themselves eligible to these three offices, although they are eligible to all other offices whatsoever under the constitution. fn66 All that is required of them is simply the official oath to support the constitution; the same oath that is required of citizens.
Again. The constitution of the United States lays no restraint upon their holding, devising, and inheriting real estate, if such should be the pleasure of the State governments. And in many, if not all, the States, they are allowed to hold, devise, and inherit it.
Now the facts, that they are not restrained by the constitution from holding, devising, and inheriting real estate; that they have the permission of the constitution to vote, (if the State governments shall please to allow them to do so;) and that they are eligible to a part of the offices, but not to all, show that the constitution regards them not as aliens, in the technical sense of that term, fn67 but as partial citizens. They indicate that the constitution intended to be consistent with itself throughout, and to consider them, in reality, what this argument claims that it considers them in respect of representation and taxation, viz., as three fifths citizens.
The same reason that would induce the constitution to make aliens eligible to all offices, except the three named, (to wit, those [*245] of representative, senator, and president,) and to allow them the right of voting, would also induce it to allow them some right of being counted in making up the basis of representation. On the other hand, the same reasons which would forbid their eligibility, as representatives, senators, and presidents, would forbid their being reckoned equal to citizens, in making up the basis of representation; and would also forbid their votes for those officers being counted as equal to the votes of citizens. Yet a single vote could not be divided so as to enable each alien to give three fifths, or any other fraction, of a vote. Here then was a difficulty. To have allowed the separate States full representation for their aliens, as citizens, while it denied the aliens themselves the fall rights of citizenship, (as, for instance, eligibility to the legislative and highest executive offices of the government,) would have been inconsistent and unreasonable. How, then, was this matter to be arranged? The answer is, just as this argument claims that it was arranged, viz., by allowing the aliens full liberty of voting, at the discretion of the State governments, yet at the same time so apportioning the representation among the States, that each State would acquire no more weight in the national government, than if her aliens had each given but three fifths of a vote, instead of a full vote.
In this manner all the inconsistency of principle, which, it has been shown, would have otherwise existed between the different provisions of the constitution, relative to aliens, as compared with citizens, was obviated. At the same time justice was done to the States, as States; also to the citizens, as citizens; while justice, liberality, and consistency were displayed towards the aliens themselves. The device was as ingenious, almost, as the policy was wise, liberal, and just.
Compare now the consistency and reason of this arrangement with the inconsistency and absurdity of the one 'resulting from the slave hypothesis. According to the latter, the States are allowed the full weight of their aliens, as citizens, in filling those departments of the government, (the legislative and highest executive,) which aliens themselves are not allowed to fill. 2. Aliens are allowed full votes with the citizens in filling offices, to which, (solely by reason of not being citizens,) they are not eligible. 3. And what is still more inconsistent, absurd, and atrocious even, half the States are allowed a three fifths representation for a class of persons, whom such States have made enemies to the nation, [*246] and who are allowed to fill no office, are allowed no vote, enjoy no protection, and have no rights in, or responsibility to, the government.
If legal rules require us to make an instrument consistent, rather than inconsistent, with itself, and to give it all a meaning that is reasonable and just, rather than one that is unjust and absurd, what meaning do they require us to give to the constitution, on the point under consideration?
The only imperfection in the constitution on this point seems to be, that it does not secure the elective franchise to aliens. Bat this omission implies no disfavor of aliens, and no inconsistency with the actual provisions of the constitution; nor is it any argument against the theory here maintained; for neither does the constitution secure this franchise to the citizen, individually, as it really ought to have done. It leaves the franchise of both citizens and aliens at the disposal of the State governments separately, as being the best arrangement that could then be agreed upon, trusting, doubtless, that the large member of aliens in each State would compel a liberal policy towards them.
From this whole view of the subject, it will be seen that the constitution does not, in reality, consider unnaturalized persons as aliens, in the technical sense of that term. It considers them as partial citizens, that is, as three fifths citizens, and two fifths aliens. The constitution could find no single term by which to describe them, and was therefore obliged to use the phrase, "all other persons" than "the free," that is, "all other persons" than those entitled to full repr |
