Front Page Titles (by Subject) CHAPTER XVII.: RULES OF INTERPRETATION. * - The Unconstitutionality of Slavery: Part Second
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CHAPTER XVII.: RULES OF INTERPRETATION. * - Lysander Spooner, The Unconstitutionality of Slavery: Part Second 
The Unconstitutionality of Slavery: Part Second (Boston: Bela Marsh, 1860).
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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† 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 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, 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.
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 man’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.
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 form 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 evidence that is common to all. 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 self-contradiction.
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 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. 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 all 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.
The second rule of interpretation is, that “the intention of the constitution must be collected from its words.”*
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 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.*
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 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;* 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 honestrights, 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 in 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 fellow-men, 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 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.”
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.*
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 number of free persons three fifths of all other persons,” if there 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 that 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 clause 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, 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 theft, 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 any of the then existing state constitutions, its case would have been no better; for the United States constitution was to be the supreme law of the land, anything in the constitution or 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.
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. Subject 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, free-born 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 outweigh 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 less 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.*
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 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, 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 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 statute-books, 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.*
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.
But this argument, if not wholly false, is very shallow and frivolous; for everybody is presumed to know the laws, 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. 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.
The word slaves, if it had been used in the constitution, (instead of 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 twenty-one 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 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 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 was 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.*
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 if 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.
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. 284.
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 initself, 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; but 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 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.
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, but 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 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.*
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—to which one half of the people who are, in theory, parties to it, ever, in fact and in form, 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 of 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 non-consent, 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 presumed 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.
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 non-slaveholders 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 well-being in life that a large portion of his contracts should be held honest and valid.
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 non-slaveholders 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 whols 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.*
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.”
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 language 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,”* that have since been somewhat questioned,† 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, 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 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 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 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 natural 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,” and “service and labor,” and those words wholly fail to recognize slavery.
Apply the 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.”
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.
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 law 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 character—without 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 manner of counting the people for purposes of representation and taxation; when, what is worse, the words used, if not the most 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.
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.
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.”*
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.
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 will exclude slavery.
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.”*
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 be a flagrant violation of that law.
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.”†
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.:
“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.”
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, these principles, are so forcible and appropriate that they will be given 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.* 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 hasnot expressed. This is the maxim of the Roman law; Pactionem obscuram iis nocere, 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 plaiply.) The equity of this rule is extremely visible, and its necessity is not less evident. There can be no secure conventions, no firm and solid 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 hassufficientlydeclared. 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. Itwould 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 alone 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 concealed 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.
In addition to the foregoing particular rules of interpretation, this general and sweeping one may be given, to wit, that we arenever unnecessarily 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 law 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 or 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 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 will 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 as are expressed and contained in the constitution, was such as has been claimed for it in this argument, viz., a meaning describing citizens, 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.”*
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 be 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,” 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 interpretation 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 plilologists,) 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.
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 be 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 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.*
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 cases 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 cases, 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 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.*
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 law-givers.
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 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 all, 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,) furnishes 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 law, 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 non-slaveholders, both north and south, must also be thrown into the same scale with the intentions of the slaves—the scale of liberty.
But further. The intentions of all parties, slaves, slaveholders, and non-slaveholders, 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 weight in settling ambiguities in it, the decision must be in favor of liberty.*
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 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? 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 law 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, twice, or any number of times, been adjudicated upon, it must always be construed as it always has been, the rule is ridiculous; it 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.*
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.*
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 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.”* 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.†
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 ofambiguouswords 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.
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.*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.
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 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, as 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 inhabitant 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 law, 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 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.*
[* ] Two things are necessary to a good lawyer. 1. A knowledge of natural law. This knowledge, indispensable to the peace and security of mankind, in their dealings, intercourse, and neighborhood with each other, is possessed, in some good measure, by mankind at large. 2. A knowledge of the rules of interpreting the written law. These are few, simple, natural, reasonable, just, and easily learned. These two branches of knowledge comprise substantially all the science, and all “the reason,” there are in the law. I hope these considerations, in addition to that of understanding the constitution, may induce all, who read any portion of this book, to read with patience this chapter on the rules of interpretation, however tedious it may be.
[† ] In “The Unconstitutionality of Slavery,” the word laws, in this rule, was printed law, through my inadvertence in copying the rule. The error was not discovered until it was pointed out by Wendell Phillips. I am obliged to him for the correction. A case might he supposed, in which the difference would be important. But I am not aware that the correction affects any of the arguments on which the rule has thus far been, or will hereafter he, brought to bear; because, in construing the constitution by this rule, “the general system of the laws” must be presumed to be “the general system of the laws” authorized by the constitution itself, and not “the general system of the laws” previously prevailing in the country, if the two systems should happen to differ. The constitution being the supreme law, anything in the constitutions or laws of the states to the contrary notwithstanding, those constitutions and laws must be construed with reference to it; instead of its being construed with reference to them, whenever the two may appear to conflict.
Mr. Phillips, however, seems to think the difference important to this discussion; because he says “the general system of the law might refer to the general system of law, as a science;” whereas “the general system of the laws clearly relates to the general spirit of the laws of this nation, which is quite a different thing.” But he here assumes the very point in dispute, viz., that “the general spirit of the constitutional laws of this nation, (which are, in reality, its only laws,) are a very different thing” from “the general system of law, as a science.” So far as they relate to slavery, we claim that all our constitutional laws are perfectly accordant with “the general system of law, as a science,” and this is the question to be determined.
That “the general system of the laws,” authorized by the constitution, and relating to other subjects than slavery, is, for the most part, at least, if not entirely, accordant with “law, as a science,” Mr. Phillips will probably not deny, whatever he may think of those it authorizes in relation to slavery. But the rule of the court forbids that, in the matter of slavery, any construction of the constitution be adopted, at variance with “the general system of the laws” authorized by the constitution, on all other subjects, unless such intention “he expressed with irresistible clearness.” “The general system of the laws,” authorized by the constitution, on all other subjects than slavery, is a very important guide for the interpretation of those clauses that have been claimed for slavery. If this guide be followed, it extinguishes all pretended authority for slavery—instead of supporting it. as Mr. Phillips’ remark would imply.
[* ] The Supreme Court of the United States say: “The intention of the instrument must prevail; this intention must be collected from its words.”—12 Wheaton, 332.
“The intention of the legislature is to be searched for in the words which the legislature has employed to convey it.”—7 Cranch, 60.
Story says, “We must take it to be true, that the legislature intend precisely what they say.”—2 Story’s Circuit Court Rep., 653.
Rutherforth says, “A promise, or a contract, or a will, gives us a right to whatever the promiser, the contractor, or the testator, designed or intended to make ours. But his design or intention, if it is considered merely as an act of his mind, cannot be known to any one besides himself. When, therefore, we speak of his design or intention as the measure of our claim, we must necessarily be understood to mean the design or intention which he has made known or expressed by some outward mark; because, a design or intention which does not appear, can have no more effect, or can no more produce a claim, than a design or intention which does not exist.
“In like manner, the obligations that are produced by the civil laws of our country arise from the intention of the legislator; not merely as this intention is an act of the mind, but as it is declared or expressed by some outward sign or mark, which makes it known to us. For the intention of the legislator, whilst he keeps it to himself, produces no effect, and is of no more account, than if he had no such intention. Where we have no knowledge, we can be under no obligation. We cannot, therefore, be obliged to comply with his will, where we do not know what his will is. And we can no otherwise know what his will is, than by means of some outward sign or mark, by which this will is expressed or declared.”—Rutherforth, B. 2, chap. 7, p. 307-8.
[* ] This rule, that forbids us to go beyond the words of the law, must not be understood as conflicting with the one that allows us, in certain cases, to go out of an instrument to find the meaning of the words used in the instrument. We may, in certain cases, (not in all,) and under certain limitations, as will hereafter be explained, go out of an instrument to find the meaning of its words; but we can never go beyond their meaning, when found.
[* ]Kent says, these rules “have been accumulated by the experience, and ratified by the approbation, of ages.”—1 Kent, 461.
[* ]Vattel says, “The interpretation of every act, and of every treaty, ought to be made according to certain rules proper to determine the sense of them, such as the parties concerned must naturally have understood when the act was prepared and accepted.
“As these rules are founded on right reason, and are consequently approved and prescribed by the law of nature, every man, every sovereign, is obliged to admit and follow them. If princes were to acknowledge no rules that determined the sense in which the expressions ought to be taken, treaties would be only empty words; nothing could be agreed upon with security, and it would be almost ridiculous to place any dependence on the effect of conventions.”—Vattel, B. 2, chap. 17, sec. 268.
[* ] Blackstone says, “As to the subject matter, words are always to be understood as having regard thereto.”—1 Blackstone, 60.
“We ought always to give to expressions the sense most suitable to the subject, or to the matter, to which they relate.”—Vattel, B. 2., chap. 17, sec. 280.
Other authorities on this point are given in the note at the end of this chapter.
[* ] It was, for example, the commonness, or rather the uniformity, with which the word “free” had been used—up to the time the constitution was adopted—to describe persons possessed of political and other legal franchises, as distinguished from persons not possessed of the same franchises, that made the word “free” a technical one in the law.
[* ] “Terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science.”—1 Blackstone, 59.
“When technical words are used, they are to be understood in their technical sense and meaning, unless the contrary clearly appears.”—9 Pickering, 514.
“The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense.”—1 Kent, 461.
Lord Ellenborough says, “An agreement is to be construed according to its sense and meaning, as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject matter, as by the known usage of trade or the like, acquired a peculiar sense, distinct from the popular sense of the same words; or unless the context evidently points out that they must, in the particular instance, and in order to effect the immediate intention of the parties to that contract, be understood in some other special and peculiar sense.”—4 East, 135; cited in Chitty on Contracts, 80.
Chitty adds, “The same rule applies to the construction of acts of parliament,” and cites several authorities.
“In the enactment of laws, when terms of art, or peculiar phrases, are made use of, it must be supposed that the legislature have in view the subject matter about which such terms or phrases are commonly employed.”—1 Pickering, 261.
“If a statute make use of a word, the meaning of which is well known at the common law, the word shall be understood in the same sense it was understood at the common law.”—Bacon’s Abridg. Stat., I., 29.
“Technical terms, or terms proper to the arts and sciences, ought commonly to be interpreted according to the definition given of them by the masters of the art, the person versed in the knowledge of the art or science to which the term belongs. I say commonly; for this rule is not so absolute, that we cannot, or even ought not, to deviate from it, when we have good reasons to do it; as, for instance, if it was proved that he who speaks in a treaty, or in any other public piece, did not understand the art or science from which he borrowed the term, that he knows not its force as a technical word: that he has employed it in a vulgar sense, &c.”—Vattel, B. 2, ch. 17, sec. 276.
“In things favorable,” (“things favorable” he defines to mean “things useful and salutary to human society,”) “the terms of art ought to be taken in the fullest extent they are capable of; not only according to common use, but also as technical terms, if he who speaks understands the art to which those terms belong, or if he conducts himself by the advice of men who understand that art.
“But we ought not from this single reason, that a thing is favorable, to take the terms in an improper signification; this is only allowable to be done, to avoid absurdity, injustice, or the nullity of the act, as is practised on every subject. For we ought to take the terms of an act in their proper sense, conformable to custom, at least, if we have not very strong reasons for deviating from it.”—Vattel, B. 2, ch. 17, sec. 307.
“Where technical words are used, the technical meaning is to be applied to them, unless it is repelled by the context. But the same word often possesses a technical and a common sense. In such a case the latter is to be preferred, unless some attendant circumstance points clearly to the former.”—1 Story’s Comm. on Const., 438.
It will be observed that every one of these authorities, except the single one from Story, gives the preference to the technical meaning, over any of the other meanings which a word may have. The latter branch of Story’s rule gives the preference to the other meaning over the technical one.
Admitting, for the sake of the argument, that the latter branch of Story’s rule is correct, still the meaning of the word “free,” in the constitution, is not thereby altered; because his rule admits that if “some attendant circumstance points clearly to the technical meaning,” that meaning is to be adopted. Now every “attendant circumstance” that can legally be taken into consideration, “points clearly to the technical meaning”—and why? Because that meaning alone is consistent with justice, appropriate to the subject matter of the instrument, consistent with the idea that all the parties to the instrument could have reasonably agreed to it, (an essential point, as will hereafter be seen,) consistent with all the general provisions of the instrument. If the other meaning be adopted, all the general provisions of the instrument are either contradicted outright, or have to be taken subject to limitations and exceptions which are nowhere expressed, and which would not only exclude one sixth of “the people of the United States” from the operation of the constitution, established in their name, and for their benefit, but would actually sanction the greatest wrongs against them.
The result, then, is, not merely that “some attendant circumstance,” (although the rule admits that that would be sufficient to turn the scale,) but that every attendant circumstance, points to the technical meaning as the true one.
There is, also, in the same clause with the word “free,” one attendant circumstance which points clearly to the technical meaning; and that is, that “all other persons” than the free, are to be represented and taxed as three fifths units. Now there is no propriety in representing or taxing slaves at all, as persons; but there is a special propriety in representing and taxing aliens as three fifths units, as will more fully appear hereafter.
But, in point of fact, Story’s rule destroys itself, for the two branches of it flatly contradict each other. The first branch says, that “where technical words are used, the technical meaning is to be applied to them, unless it is repelled by the context.” The second branch says, that “the same word often possesses a technical and a common sense. In such case the latter is to be preferred, unless some attendant circumstance points clearly to the former.”
It might be thought, on a careless reading of this rule, that there was no contradiction in it; that the first branch of it referred to a case where a word had only one meaning, and that a technical one; and that the latter branch referred to a case where a word had two or more meanings. But, in reality, there is probably not a single technical word in the language, that has not one or more other meanings beside the technical one; and it seems impossible there should be such a word, because the very meaning of a technical word is a word which, in one profession, art, or trade, is used in a somewhat different sense from what it is out of that profession, art, or trade. But be this as it may, it is evident that the first branch of the rule as much refers to a word having two meanings, as does the latter branch of it; for it says “the technical meaning is to be applied, unless it be repelled by the context.” What is the inference from this proviso? Why, plainly, that if the technical meaning “be repelled by the context,” the other meaning is to be adopted. This of course implies that the word has another meaning which may be adopted if the context require it.
If, then, there are two meanings to the words in each case, the two branches of this rule flatly contradict each other.
The first branch of the rule is given by Story, and is sustained by all the other authorities cited. The second branch is Story’s own, sustained by nobody. The reader will judge which is sustained by reason.
But, in truth, Story has himself laid down the true rule more accurately in another place, as follows:
“Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design, of the instrument.”—1 Comm. on Const., 387.
One other authority, which has fallen under my eye, ought to be noticed, lest it be misunderstood. It is this:
“The language of a statute is not to be construed according to technical rules, unless such be the apparent meaning of the legislature.”—14 Mass. Rep., 92.
This language, taken independently of the context, would convey the idea that the adoption of the technical meaning was a matter of indifference; or perhaps even that another meaning was rather to be preferred to the technical one.
But it will be seen on examining the report from which this extract is taken, that the court did not at all intend to deny, but on the contrary to admit, that the general rule was, that the technical meaning was to be preferred; and that they only intended to assert that the rule in favor of the technical meaning was not so imperative that it could not be departed from in a case where “manifest justice” would be promoted by the departure; for they plead, as a justification for departing from the technical meaning, that in that particular case, “manifest justice” will be subserved by a different construction.
Thus have been presented all the authorities on this point, that happen now to be within my knowledge. Many more of the same kind might doubtless be found. I am aware of no contrary one, unless the single one cited from Story be so esteemed.
The conclusion, both from reason and authority, evidently is, that the technical meaning is the preferable one in all cases, except where justice, or some other legal object, will be promoted by adopting some other.
[* ]Vattel says, “Languages vary incessantly, and the signification and force of words change with time. When an ancient act is to be interpreted, we should know the common use of the terms at the time when it was written.”—B. 2, ch. 17, sec. 272.
He also says, “In the interpretation of treaties, pacts, and promises, we ought not to deviate from the common use of language, at least, if we have not very strong reasons for it.”—Same sec.
[* ] Contracts made by persons mentally incompetent to make reasonable contracts, are not “obligatory.”
[† ] Although the greatest discretion that is within the limits of reason, is allowed to parties in making contracts, yet contracts manifestly unreasonable are not held obligatory. And all contracts are unreasonable that purport to surrender one’s natural rights. Also, all contracts that purport to surrender any valuable acquired rights, as property, for example, without any equivalent, or reasonable motive.
[* ] Vattel says, “When the subject relates to things favorable”—(in sec. 302, he defines “things favorable” to be things “useful and salutary to human society,”)—“we ought to give the terms all the extent they are capable of in common use; and if a term has many significations, the most extensive ought to be preferred.”—B. 2, ch. 17, sec. 307.
“In relation to things favorable, the most extensive signification of the terms is more agreeable to equity than their confined signification.”—Same.
“We should, in relation to things odious,”—(in sec. 302, he defines “as odious, everything that, in its own nature, is rather hurtful than of use to the human race,”)—“take the terms in the most confined sense, and even, to a certain degree, may admit the figurative, to remove the burdensome consequences of the proper and literal sense, or what it contains that is odious.”—Same, sec. 308.
[* ] Story says, “Who, then, are the parties to this contract? * * * Let the instrument answer for itself. The people of the United States are the parties to the constitution.”—1 Story’s Comm. on Const., p. 355.
The supreme court of the United States says, “The government (of the U. S.) proceeds directly from the people; Is ‘ordained and established’ in the name of the people.”—4 Wheaton, 403.
“The government of the Union is, emphatically and truly, a government of the people; and in form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”—4 Wheaton, 404, 405.
“The constitution of the United States was ordained and established, not by the United States in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States.”—1 Wheaton, 324.
Story, commenting upon the words “We the people of the United States,” says, “We have the strongest assurances that this preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government. The obvious object was to substitute a government of the people for a confederacy of states.”—1 Comm., p. 446.
Also, “The convention determined that the fahric of American empire ought to rest, and should rest, on the solid basis of the consent of the people. The streams of national power ought to flow, and should flow, immediately from the highes original fountain of all legitimate authority. * * * And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and not the act of the states; and that it bound the latter as subordinate to the people.”—1 Story’s Comm., p. 447.
Kent says, “The government of the United States was erected by the free voice and the joint will of the people of America, for their common defence and general welfare.”—1 Kent, 189.
Chief Justice Jay said, “Every state constitution is a compact, made by and between the citizens of the state to govern themselves in a certain manner; and the constitution of the United States is likewise a compact, made by the people of the United States to govern themselves, as to general objects, in a certain manner.”—2 Dallas, 419; cited by Story, 1 Comm., p. 317.
Mr. Webster says, “It is the people’s constitution, the people’s government; made for the people; made by the people; and answerable to the people. The people of the United States have declared that this constitution shall be the supreme law. We must either admit the proposition, or dispute their authority. * * * We are all agents of the same supreme power, the people. The general government and the state governments derive their authority from the same source.”—Webster’s Speeches, vol. 1, p. 410.
Also, “I hold it to be a popular government, erected by the people; those who administer it, responsible to the people; and itself capable of being amended and modified, just as the people choose it should be. It is as popular, just as truly emanating from the people, as the state governments. It is created for one purpose; the state governments for another. It has its own powers; they have theirs.”—Same, p. 418.
Also, “This government is the independent offspring of the popular will.”—Same, 419.
If the constitution were not established by “the people,” there is no information given in the constitution, as to whom it was established by. We must, of necessity, therefore, accept its own declaration, that it was established by the people. And if we accept its declaration that it was established by “the people,” we must also accept its virtual declaration that it was established by the whole people, for it gives no information of its being established by one portion of the people, any more than by another. No separation can therefore be made between different portions of the people.
[* ] Page 62, Second Edition.
[† ] By Wendell Phillips.
[* ] Story says, “The importance of examining the preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs which are to be remedied, and the objects which are to be accomplished by the provisions of the statute. We find it laid down in some of our earliest authorities in the common law, and civilians are accustomed to a similar expression, cessante legis præmio, cessat et ipsa lex. (The preamble of the law ceasing, the law itself also ceases.) Probably it has a foundation in the exposition of every code of written law, from the universal principle of interpretation, that the will and intention of the legislature is to be regarded and followed. It is properly resorted to where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an absurdity, or to a direct overthrow of the intention expressed in the preamble.
“There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as expressed in the preamble. And accordingly we find that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions.”—1 Story’s Comm. on Const., p. 443-4.
Story also says, “Its true office is to expound the nature, and extent, and application of the powers actually conferred by the constitution, and not substantively to create them.”—Same, 445.
“Though the preamble cannot control the enacting part of a statute which is expressed in clear and unambiguous terms, yet, if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it.”—7 Bacon’s Abr., 435, note. 4 Term Rep., 793. 13 Vesey, 36. 15 Johnson, N. Y. Rep., 116.
“A statute made pro bono publico (for the public good) shall be construed in such manner that it may as far as possible attain the end proposed.”—7 Bacon’s Abr., 461.
The constitution of the United States avows itself to be established for the public good—that is, for the good of “the people of the United States”—to establish justice and secure the blessings of liberty to themselves and their posterity. It must of course “be construed in such manner that it may, as far as possible, attain that end.”
Story says, “Was it not framed for the good of the people, and by the people?”—1 Story’s Comm., 394.
Chief Justice Jay dwells at length upon the authority of the preamble, as a guide for the interpretation of the constitution.—2 Dallas, 419. Also Justice Story, in his Commentaries on the Constitution, vol. 1, book 3, ch. 6.
[* ] 2 Cranch, 64.
[† ] The Supreme Court of Mississippi say, referring to the claim of freedom, set up before it, “Is it not an unquestioned rule that, in matters of doubt, courts must lean in favorem vitæ et libertatis?” (in favor of life and liberty.)—Harvey vs. Decker, Walker’s Mississippi Reports, 36.
I cite this authority from Mr. Chase’s argument in the Van Zandt case.
[* ] This rule is fairly applicable to the word free. The sense correlative with aliens is a sense appropriate to the subject matter of the instrument; it accurately and properly describes a class of persons, which the constitution presumes would exist under it; it was, at the time, the received and technical sense of the word in all instruments of a similar character, and therefore its presumptive sense in the constitution; it is consistent with intentions reasonably attributable to all the parties to the constitution; it is consistent with natural right, with the preamble, the declared purpose of the constitution, and with the general system of the laws established by the constitution. Its legal meaning, in the constitution, was therefore plain, manifest, palpable, and, at the time of its adoption, had no need of interprelation. It needs interpretation now, only to expose the fraudulent interpretation of the past; and because, in pursuance of that fraudulent interpretation, usage has now somewhat changed the received meaning of the word.
[* ] “Story says, “Are we at liberty, upon any principles of reason or common sense, to adopt a restrictive meaning which will defeat an avowed object of the constitution, when another equally natural, and more appropriate to the subject, is before us?”—1 Story’s Comm., p. 445.
Dane says, “With regard to the different parts of a statute, there is one general rule of construction; that is, the construction of each and every part must be made on a full view of the whole statute; and every part must have force and effect, if possible; for the meaning of every part is found in its connection with other parts.”—6 Dane, 598.
Vattel says, “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 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, nisi tota lege perspecta, una aliqua particula ejus proposita, judicare, vel respondere.” (It is improper to judge of, or answer to, any one particular proposed in a law, unless the whole law be thoroughly examined.)—B. 2, ch. 17, 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 do not manifestly appear, that, by the last clauses, something is changed that went before.”—Same, sec. 286.
The way the advocates of slavery proceed in interpreting the constitution, is this. Instead of judging of the meaning of the word free by its connection with the rest of the instrument, they first separate that word entirely from all the rest of the instrument; then, contrary to all legal rules, give it the worst meaning it is under any circumstances capable of; then bring it back into the instrument; make it the ruling word of the instrument; and finally cut down all the rest of the instrument so as to make it conform to the meaning thus arbitrarily and illegally given to this one word free.
[* ] No statute shall be construed in such manner as to be inconvenient, or against reason.”—7 Bacon’s Abridg., 465.
“Where the construction of a statute is doubtful, an argument from convenience will have weight.”—3 Mass., 221.
Ch. J. Shaw says, “The argument from inconvenience may have considerable weight upon a question of construction, where the language is doubtful; it is not to be presumed, upon doubtful language, that the legislature intended to establish a rule of action, which would be attended with inconvenience.”—11 Pickering, 490.
Ch. J. Abbott says, “An exposition of these statutes, pregnant with so much inconvenience, ought not to be made, if they will admit of any other reasonable construction.”—3 Barnwell, & A, 271.
“The argument from inconvenience is very forcible in the law, as often hath been observed.”—Coke Lit., 383, a. note.
[* ] The Supreme Court United States say: “It is undoubtedly a well-established principle in the exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole. It is also true, that where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain, in which case it must be obeyed.”—2 Cranch, 358.
“The natural import of the words of any legislative act, according to the common use of them, when applied to the subject matter of the act, is to be considered as expressing the intention of the legislature; unless the intention, so resulting from the ordinary import of the words, be repugnant to sound, acknowledged principles of national policy. And if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those principles, unless the intention of the legislature be clearly and manifestly repugnant to them.”—Opinion of the Justices, including Parsons; 7 Mass., 523.
[* ] There is one short and decisive answer to all the pretence that the slaveholders cannot be presumed to have agreed to the constitution, if it be inconsistent with slavery; and that is, that if the slaveholders cannot be presumed to have agreed to it, then they, and not the slaves, must be presumed to have been no parties to it, and must therefore be excluded from all rights in it. The slaves can certainly be presumed to have agreed to it, if it gives them liberty. And the instrument must be presumed to have been made by and for those who could reasonably agree to it. If, therefore, any body can be excluded from all rights in it, on the ground that they cannot be presumed to have agreed to such an instrument as it really is, it must be the slaveholders themselves. Independently of this presumption, there is just as much authority, in the constitution itself, for excluding slaveholders, as for excluding the slaves, from all rights in it. And as the slaves are some ten or fifteen times more numerous than the slaveholders, it is ten or fifteen times more important, on legal principles, that they be included among the parties to the constitution, than that the slaveholders should be.
[* ] In case Ex parte Bollman and Swartout, Justice Johnson, of the Sup. Court U. S., said,—
“I am far, very far, from denying the general authority of adjudications. Uniformity in decisions is often as important as their abstract justice. (By no means.) But I deny that a court is precluded from the right, or exempted from the necessity, of examining into the correctness or consistency of its decisions, or those of any other tribunal. If I need precedent to support me in this doctrine, I will cite the example of this court, (Sup. Court U. S.) which, in the case of the United States vs. Moore, February, 1805, acknowledged that in the case of the United States vs. Sims, February, 1803, it had exercised a jurisdiction it did not possess. Strange indeed would be the doctrine that an inadvertency, once committed by a court, shall ever after impose on it the necessity of persisting in its error. A case that cannot be tested by principle is not law, and in a thousand instances have such cases been declared so by courts of justice.”—4 Cranch, 103.
“Nullius hominis authoritas tantum apud vos valere debet, ut meliora non sequeremur si quis attulerit.” (The authority of no man ought to weigh so much with us, that if any one has offered anything better, we may not follow it.)—Coke Lit., 383, a. note.
[* ] In Vaughn’s Reports, p. 169, 70, the court say,—
“The second objection is, that the king’s officers by usage have had in several kings’ times the duties of tonnage and poundage from wrecks.
“1. We desired to see ancient precedents of that usage, but could see but one in the time of King James, and some in the time of the last king; which are so new that they are not considerable, (not worthy to be considered.)
“2. Where the penning of a statute is dubious, long usage is a just medium to expound it by; for jus et norma loquendi (the rule and law of speech) is governed by usage. And the meaning of things spoken or written must be, as it hath constantly been received to be by common acceptation.
“But if usage hath been against the obvious meaning of an act of parliament, by the vulgar and common acceptation of the words, then it is rather an oppression of those concerned, than an exposition of the act, especially as the usage may be circumstanced.
“As, for instance, the customers seize a man’s goods, under pretence of a duty against law, and thereby deprive him of the use of his goods, until he regains them by law, which must be by engaging in a suit with the king, rather than do so he is content to pay what is demanded for the king. By this usage all the goods in the land may be charged with the duties of tonnage and poundage; for when the concern is not great, most men (if put to it) will rather pay a little wrongfully, than free themselves from it overchargeably.
“And in the present case, the genuine meaning of the words and purpose of the act, is not according to the pretended usage, but against it, as hath been shewed; therefore usage in this case weighs not.”
[* ] The Supreme Court United States say, “The intention of the legislature is to be searched for in the words which the legislature has employed to convey it.”—7 Cranch, 60.
Also, “The intention of the instrument (the constitution) must prevail; this intention must be collected from its words.”—12 Wheaton, 332.
[† ]Story says, “We must take it to be true, that the legislature intend precisely what they say.”—1 Story’s C. C. Rep., 653.
Vattel says, “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 really had the view attributed to him, if he has concealed it, and made known others, the interpretation can only be founded upon these, (which he has made known,) and not upon the views which the author has not expressed; we take for true against him what he has sufficiently declared.”—B. 2, ch. 17, sec. 287.
Rutherforth says, “The safest ground for us to stand upon, is what the writer himself affords us; when the legislator himself has plainly declared the reason (intention) of the law in the body of it, we may argue from thence with certainty.”—B. 2, ch. 7, p. 330.
Rutherforth also says, “A promise, or contract, or a will, gives us a right to whatever the promiser, the contractor, or the testator, designed or intended to make ours. But his design or intention, if it is considered merely as an act of his mind, cannot be known to any one besides himself. When, therefore, we speak of his design or intention as the measure of our claim, we must necessarily be understood to mean the design or intention which he has made known or expressed by some outward mark; because, a design or intention which does not appear, can have no more effect, or can no more produce a claim, than a design or intention which does not exist.
“In like manner, the obligations that are produced by the civil laws of our country arise from the intention of the legislator; not merely as this intention is an act of the mind, but as it is declared or expressed by some outward sign or mark, which makes it known to us. For the intention of the legislator, whilst he keeps it to himself, produces no effect, and is of no more account than if he had no such intention. Where we have no knowledge, we can be under no obligation. We cannot, therefore, be obliged to comply with his will, where we do not know what his will is. And we can no otherwise know what his will is, than by means of some outward sign or mark, by which this will is expressed or declared.”—B. 2, chap. 7, p. 307.
[* ] All rules of construction apply only to words that need to be construed; to those which are capable of more than one meaning, or of a more extended or restricted sense, and whose meanings in the law are therefore uncertain. Those words whose meanings are plain, certain, and precise, are not allowed to be construed at all. It is a fundamental maxim, as before cited, (under rule thirteenth,) that it is not admissible to interpret what needs no interpretation.
[† ]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 or 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.”—B. 2, ch. 17, sec. 284.
And this is an universal rule with courts, to interpret the ambiguous words of an instrument by those that are explicit.
[* ] It will not do to take these, or any other rules, on trust from courts; for courts, although they more generally disregard, or keep out of sight, all rules which stand in the way of any unlawful decisions which they are determined to make, can yet not very unfrequently lay down false rules to accomplish their purposes. For these reasons, only those of their rules that are plainly adapted to promote certainty and justice, are to be relied on.
[* ]Story says, “In coustruing the constitution of the United States, we are, in the first instance, to consider what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted, which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and designs, of the instrument. Where the words are unambiguous, but the provision may cover more or less ground, according to the intention, which is subject to conjecture; or where it may include in its general terms more or less than might seem dictated by the general design, as that may be gathered from other parts of the instrument, there is much more room for controversy; and, the argument from inconvenience will probably have different influences upon different minds. Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only upon the most persuasive reasons. In examining the constitution, the antecedent situation of the country, and its institutions, the existence and operations of the state governments, the powers and operations of the confederation, in short, all the circumstances which had a tendency to produce or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history, and contemporary interpretation, to aid us in just conclusions.
“It is obvious, however, that contemporary interpretation must be resorted to with much qualification and reserve. In the first place, the private interpretation of any particular man, or body of men, must manifestly be open to much observation. The constitution was adopted by the people of the United States; and it was submitted to the whole, upon a just survey of its provisions, as they stood in the text itself. In different states, and in different conventions, different and very opposite objections are known to have prevailed; and might well be presumed to prevail. Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favor. And there can be no certainty, either that the different state conventions, in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a single state convention, the same reasoning prevailed, with a majority, much less with the whole, of the supporters of it. In the interpretation of a state statute, no man is insensible of the extreme danger of resorting to the opinions of those who framed it, or those who passed it. Its terms may have differently impressed different minds. Some may have implied limitations and objects, which others would have rejected. Some may have taken a cursory view of its enactments, and others have studied them with profound attention. Some may have been governed by a temporary interest or excitement, and have acted upon that exposition which most favored their present views. Others may have seen, lurking beneath its text, what commended it to their judgment, against even present interests. Some may have interpreted its language strictly and closely; others, from a different habit of thinking, may have given it a large and liberal meaning. It is not to be presumed, that, even in the convention which framed the constitution, from the causes above mentioned, and other causes, the clauses were always understood in the same sense, or had precisely the same extent of operation. Every member necessarily judged for himself; and the judgment of no one could, or ought to be, conclusive upon that of others. The known diversity of construction of different parts of it, as well as the mass of its powers, in the different state conventions; the total silence upon many objections, which have since been started; and the strong reliance upon others, which have since been universally abandoned, add weight to these suggestions. Nothing but the text itself was adopted by the people. And it would certainly be a most extravagant doctrine to give to any commentary then made, and, a fortiori, to any commentary since made under a very different posture of feeling and opinion, an authority which should operate an absolute limit upon the text, or should supersede its natural and just construction.
“Contemporary construction is properly resorted to, to illustrate and confirm the text, to explain a doubtful phrase, or to expound an obscure clause; and in proportion to the uniformity and universality of that construction, and the known ability and talents of those by whom it was given, is the credit to which it is entitled. It can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries. We shall have abundant reason hereafter to observe, when we enter upon the analysis of the particular clauses of the constitution, how many loose interpretations and plausible conjectures were hazarded at an early period, which have since silently died away, and are now retained in no living memory, as a topic either of praise or blame, of alarm or of congratulation.—1 Story’s Com. on the Const. pp. 387 to 392.
Story makes the following caustic comments upon Mr. Jefferson’s rules of interpretation. They are particularly worthy the attention of those modern commentators, who construe the constitution to make it sanction slavery. He says,—
“Mr. Jefferson has laid down two rules, which he deems perfect canons for the interpretation of the constitution.* The first is, ‘The capital and leading object of the constitution was, to leave with the states all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other states; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favor of the states in the former, if possible to be so construed.’ Now, the very theory on which this canon is founded, is contradicted by the provisions of the constitution itself. In many instances, authorities and powers are given, which respect citizens of the respective states, without reference to foreigners, or the citizens of other states.† But if this general theory were true, it would furnish no just rule of interpretation, since a particular clause might form an exception to it; and, indeed, every clause ought, at all events, to be construed according to its fair intent and objects, as disclosed in its language. What sort of rule is that, which, without regard to the intent or objects of a particular clause, insists that it shall, if possible, (not if reasonable,) be construed in favor of the states, simply because it respects their citizens? The second canon is: ‘On every question of construction (we should) carry ourselves back to the time when the constitution was adopted; recollect the spirit manifested in the debates; and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.’ Now, who does not see the utter looseness and incoherence of this canon? How are we to know what was thought of particular clauses of the constitution at the time of its adoption? In many cases, no printed debates give any account of any construction; and where any is given, different persons held different doctrines. Whose is to prevail? Besides, of all the state conventions, the debates of five only are preserved, and these very imperfectly. What is to be done as to the other eight states? What is to be done as to the eleven new states, which have come into the Union under constructions, which have been established against what some persons may deem the meaning of the framers of it? How are we to arrive at what is the most probable meaning? Are Mr. Hamilton, and Mr. Madison, and Mr. Jay, the expounders in the Federalist, to be followed? Or are others of a different opinion to guide us? Are we to be governed by the opinions of a few, now dead, who have left them on record? Or by those of a few, now living, simply because they were actors in those days, (constituting not one in a thousand of those who were called to deliberate upon the constitution, and not one in ten thousand of those who were in favor or against it, among the people)? Or are we to be governed by the opinions of those who constituted a majority of those who were called to act on that occasion, either as framers of, or voters upon, the constitution? If by the latter, in what manner can we know those opinions? Are we to be governed by the sense of a majority of a particular state, or of all of the United States? If so, how are we to ascertain what that sense was? Is the sense of the constitution to be ascertained, not by its own text, but by the ‘probable meaning,’ to be gathered by conjectures from scattered documents, from private papers, from the table-talk of some statesmen, or the jealous exggerations of others? Is the constitution of the United States to be the only instrument, which is not to be interpreted by what is written, but by probable guesses, aside from the text? Whatwould be said of interpreting a statute of a state legislature, by endeavoring to find out, from private sources, the objects and opinions of every member; how every one thought; what he wished; how he interpreted it? Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed as to ‘the probable meaning’ of the framers or of the people, what interpretation is to followed? These, and many questions of the same sort, might be asked. It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text; but the words are to be bent and broken by the ‘probable meaning’ of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own? The people adopted the constitution, according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men. The opinions of the latter may sometimes aid us in arriving at just results, but they can never be conclusive. The Federalist denied that the president could remove a public officer without the consent of the senate. The first congress affirmed his right by a mere majority. Which is to be followed?”—1 Story’s Com. on Const., 390, 392, note.
Story says, also, Words, from the necessary imperfection of all human language, acquire different shades of meaning, each of which is equally appropriate, and equally legitimate; and each of which recedes in a wider or narrower degree from the others, according to circumstances; and each of which receives from its general use some indefiniteness and obscurity, as to its exact boundary and extent. We are, indeed, often driven to multiply commentaries from the vagueness of words in themselves; and, perhaps, still more often from the different manner in which different minds are accustomed to employ them. They expand or contract, not only from the conventional modifications introduced by the changes of society, but also from the more loose or more exact uses, to which men of different talents, acquirements, and tastes, from choice or necessity, apply them. No person can fail to remark the gradual deflections in the meaning of words, from one age to another, and so constantly is this process going on, that the daily language of life, in one generation, sometimes requires the aid of a glossary in another. It has been justly remarked, that no language is so copious, as to supply words and phrases for every complex idea; or so correct, as not to include many equivocally denoting different ideas. Hence it must happen, that, however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. We must resort, then, to the context, and shape the particular meaning so as to make it fit that of the connecting words, and agree with the subject matter.”—1 Story’s Com., 437.
Ch. J. Marshall, speaking for the Sup. Court United States, says, “The spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable.”—4 Whealon, 202.
Ch. J. Taney, giving the opinion of the Supreme Court of the United States, says, “In expounding this law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law, as it is passed, is the will of the majority of both houses, and the only mode in which that will is spoken, is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed.”—3 Howard, 24.
Coke says, “The words of an act of parliament must be taken in a lawful and rightful sense.”—Coke Lit., 381, b.
Also, “The surest construction of a statute is by the rule and reason of the common law.”—Same, 272, b.
“Acts of parliament are to be so construed as no man that is innocent, or free from injury of wrong, be by a literal construction punished or endamaged.”—Same, 360, a.
“When the construction of any act is left to the law, the law, which abhorreth injury and wrong, will never so construe it, as it shall work a wrong.”—Same, 42, a.
“It is a maxim in law, that the construction of a law shall not work an injury.” Same, 183, a.
“The rehearsal or preamble of the statute is a good mean to find out the meaning of the statute, and as it were a key to open the understanding thereof.”—Same, 70, a.
“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, for that best expresseth the meaning of the makers.”—Same, 381, b.
“If the words of a statute are obscure, they shall be expounded most strongly for the public good.”—Plowden, 82.
“It is most reasonable to expound the words which seem contrary to reason, according to good reason and equity.”—Same, 109.
“Such construction ought to be made of acts of parliament as may best stand with equity and reason, and mostly avoid rigor and mischief.”—Same, 364.
“The judges took the common law for their guide, which is a master in exposition, the reason whereof they pursued as near as they could.”—Same, 364.
“Words of a statute ought not to be interpreted to destroy natural justice.”—Viner’s Abridg. Constr. of Stat., sec. 156.
Blackstone’s rules of interpretation are as follows:
“The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit or reason of the law. Let us take a view of them all.
“1. Words are generally to be understood in their usual and most known significations; not so much regarding the propriety of grammar as their general and popular use.” * * *
“Terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, or science.” * * *
“2. If words happen to be still dubious, we may establish their meaning by the context; with which it may be of singular use to compare a word or sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proem, or preamble, is often called in to help the construction of an act of parliament.” * * *
“3. As to the subject matter, words are always to be understood as having regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end.” * * *
“4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” * * *
“5. But lastly, the most universal and effectual way of discerning the true meaning of a law, where the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it.” * * *—1 Blackstone, 59, 60.
Blackstone (1, 59) also lays it down as being “Contrary to all true forms of reasoning, to argue from particulars to generals.” Yet this is the universal mode of reasoning among those who hold slavery to be constitutional. Instead of reasoning from generals to particulars, they reason from particulars to generals. For example. Instead of judging of the word “free” by reference to the rest of the instrument, they judge of the whole instrument by reference to the word “free.” They first fix the meaning of the word “free,” by assuming for it, in defiance of the rest of the instrument, and of all legal rules, the worst possible meaning of which it is capable, simply on the illegal grounds that the slaveholders cannot be presumed to have been williag to do justice, but that all the rest of the country can be presumed willing to do injustice; and they then limit, bend, and break all the rest of the instrument to make it conform to that meaning. It is only by such process as this that the constitution is ever made to sanction slavery.
“The constitution is law, the people having been the legislators. And the several statutes of the commonwealth, enacted pursuant to the constitution, are law, the senators and representatives being the legislators. But the provisions of the constitution, and of any statute, are the intentions of the legislature thereby manifested. These ententions are to be ascertained by a reasonable construction, resulting from the application of correct maxims, generally acknowledged and received.
“Two of these maxims we will mention. That the natural import of the words of any legislative act, according to the common use of them, when applied to the subject matter of the act, is to be considered as expressing the intention of the legislature unless the intention, so resulting from the ordinary import of the words, be repugnant to sound, acknowledged principles of national policy. And if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those priu-ciples; unless the intention of the legislature be clearly and manifestly repugnant to them.”—Opinion of the justices, Parsons, Sewall, and Parker, 7 Mass., 524.
Chief Justice Parker says, “I have always understood that it was right and proper to consider the whole of a statute, and the preamble, and the probable intention of the legislature, in order to ascertain the meaning of any particular section; and that this mode of interpretation is justifiable, even where the words of the section itself may be unambiguous. Certainly if one section, however explicit its terms, if taken literally, would contravene the general object of the statute, it should be restrained so as to conform to that object.”—1 Pickering, 258.
“It is unquestionably a well-settled rule of construction, that when words are not precise and clear, such construction will be adopted as shall appear most reasonable, and best suited to accomplish the objects of the statute; and where any particular construction would lead to an absurd consequence, it will be presumed that some exception or qualification was intended by the legislature, to avoid such a conclusion.”—24 Pickering, 370.
“When the meaning of any particular section or clause of a statute is questioned, it is proper, no doubt, 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, and the intention of the legislature might be defeated. And if, upon examination, the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act.”—1 Pickering, 250.
The Supreme Court of the United States say, “It is undoubtedly a well-established principle in the exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole. It is also true that where great inconvenience will result from a particular construction, that construction is to be avoided; unless the meaning of the legislature be plain, in which case it must be obeyed.”—2 Cranch, 358.
“When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion. These rules, by which the sages of the law, according to Plowden, have ever been guided in seeking for the intention of the legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the wisdom of ages.”—1 Kent, 61.
Kent declares the rule of the English courts to be this: “They will not readily presume, out of respect and duty to the lawgiver, that any very unjust or absurd consequence was within the contemplation of the law. But if it should be too palpable in its direction to admit of but one construction, there is no doubt, in the English law, as to the binding efficacy of the statute.”—1 Kent, 447.
This rule implies that if a statute be susceptible of more than “one construction,” the just or reasonable one must be preferred to “any very unjust or absurd one.”
Kent also says, “Statutes are likewise to be construed in reference to the principles of the common law;” (which, in vol. 1, p. 470, he describes as being, in great part, but “the dictates of natural justice and cultivated reason;”) “for it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely required. This has been the language of the courts in every age, and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law, as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction.”—1 Kent, 463.
Rutherforth says, “All civil laws, and all contracts in general, are to be so construed, where the words are of doubtful meaning, as to make them produce no other effect but what is consistent with reason, or with the law of nature.”—B. 2, ch. 7, p. 327.
“Lord Coke has laid it down as a general rale, that where words may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment which standeth with law shall be taken.”—Co. Lit., 42, a. 6, 183, a. Cited also in Pothier.
“When the terms of a contract are capable of two significations, we ought to understand them in the sense which is most agreeable to the nature of the contract.”—Pothier on Contracts, part 1, ch. 1, art. 7, rule 3.
The Supreme Court of the United States say, “An act of congress ought never to be construed to violate the law of nations,” (or the law of nature, they might have said, for the same reason, for the two are substantially synonymous in principle,) “if any other possible construction remains.”—2 Cranch, 64.
Parson, Chief Justice, says, “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.
“Statutes are not to be construed as taking away a common law right, unless the intention is manifest.”—4 Mass., 473.
“It is an established rule, that a statute is not to be construed so as to repeal the common law, unless the intent to alter it is clearly expressed.”—9 Pickering, 514.
“Laws are construed strictly to save a right, or avoid a penalty; and liberally to give a remedy, or effect an object declared in the law.”—1 Baldwin, 316.
“Statutes are expounded by the rules and reasons of the common law; and though the words of a statute be general, yet they shall be specially construed to avoid an apparent injury.”—6 Dane, 588.
“This policy, founded in manifest justice, ought to be enforced in this case, if the several laws in the statute-book, or any one of them, will admit of a reasonable construction to this effect.”—14 Mass., 92.
“No statute ought to be so construed as to defeat its own end; nor so as to operate against reason; nor so as to punish or damnify the innocent; nor so as to delay justice.”—6 Dane, 596.
“The best construction of a statute is to construe it as near to the rule and reason of the common law as may be, and by the course which that observes in other cases.”—Bacon’s Abr. Stat., I. 32.
Lord Coke, cited by Chief Justice Abbott, says, “Acts of parliament are to be so construed, as no man that is innocent, or free from injury, or wrong, be by a literal construction punished or endamaged.”—3 Barnwell & A. 271.
“When any words or expressions in a writing are of doubtful meaning, the first rule in mixed interpretation is to give them such a sense as is agreeable to the subject matter of which the writer is treating. For we are sure on the one hand that this subject matter was in his mind, and can on the other hand have no reason for thinking that he intended anything which is different from it, and much less that he intended anything which is inconsistent with it.”—Rutherforth, b. 2, ch. 7, p. 323.
“The interpretation or construction of the constitution is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation of a law.”—1 Kent, 449.
“But we should particularly regard the famous distinction of things favorable, and things odious.”—Vattel, B. 2, ch. 17, sec. 300.
“The precise point of the will of the legislature, or of the contracting powers, is what ought to be followed; but if their expressions are indeterminate, vague, or susceptible of a more or less extensive sense,—if this precise point of their intention in the particular case in question cannot be discovered and fixed, by other rules of interpretation, it should be presumed, according to the laws of reason and equity.”—Same.
“All the things which, without too much burthening any one person in particular, are useful and salutary to human society, ought to be reckoned among the favorable things. For a nation is already under a natural obligation with respect to things of this nature; so if it has in this respect entered into any particular engagements, we run no risk in giving these engagements the most extensive sense they are capable of receiving. Can we be afraid of doing violence to equity by following the law of nature, and in giving the utmost extent to obligations that are for the common advantage of mankind? Besides, things useful to human society, on this account, tend to the common advantage of the contracting powers, and are consequently favorable. Let us, on the contrary, consider as odious everything that, in its own nature, is rather hurtful than of use to the human race.”—Same, sec. 302.
“When the legislature, or the contracting powers, have not expressed their will in terms that are precise and perfectly determinate, it is to be presumed that they desire what is most equitable.”—Same, sec. 307.
“We favor equity, and fly from what is odious, so far as that may be done without going directly contrary to the tenor of the writing, and without doing violence to terms.”—Same, sec. 308.
Assuming that the preceding principles of interpretation are correct, it may be allowable, on account of the importance of the subject, and the contrary opinions which appear to prevail, to apply them to another clause of the constitution than those claimed for slavery.
The constitution declares that “the congress shall have power to declare war.”
This power, unqualified in its terms, would, if taken literally, and independently of the declared objects of this and all the other powers granted to the government, give congress authority to declare war for any cause whatever, just or unjust, for reasons the most frivolous and wicked, as well as for the most important and necessary purposes of self-preservation. Yet such is not the power that is actually granted. All the principles of interpretation before laid down, requiring a construction consistent with justice, and prohibiting the contrary, limit this power to cases of just war; war that is necessary for the defence and enforcement of rights.
The objects of the powers granted to congress are “to establish justice,” “secure liberty,” “provide for the common defence,” &c.; and the powers are to be construed with reference to the accomplishment of these objects, and are limited by them. Congress, therefore, have no constitutional authority to make wars of aggression and conquest. And all acts of congress, of that nature, are unconstitutional.
Law-books abound with cases in which general words are restrained to such particular meanings as are consistent with justice and reason. And the rule is well established that general words are always to be thus restrained, unless there be something in the context to forbid it.
“A thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.”—15 Johnson, 381; 3 Cowen, 92; 1 Blackstone, 60-61; 3 Mass., 540; 5 Mass., 382; 15 Mass., 206; Bac. Abr. Stat., I., 45.
Was it the intent of “the people of the United States” to authorize their government to make wars of aggression and conquest? Their intention must be collected from their words, but their words must always be taken in a sense consistent with justice, and in no other, if the words are capable of a just meaning. “War” may be made for just, and for unjust purposes. But as two conflicting intentions cannot be attributed to the same provision, the just intention must be preferred to the unjust one. The preamble, also, as we have seen, shows the object of this power to be “to secure liberty,” and “provide for the common defence.” A good object, and a sufficient object, being thus apparent, and being also specially declared in the preamble, no other can be attributed, and the power is consequently limited to that object.*
Plowden says, “And the judges of the law in all times past have so far pursued the intent of the makers of statutes, that they have expounded acts, which were general in words, to be but particular, when the intent was particular.”—Plowden, 204.
Vattel says, “We limit a law or a promise contrary to the literal signification of the terms, by regulating our judgment by the reason of that law, or that promise.”—Vattel, B. 2, ch. 17, sec. 292.
Also, “The restrictive interpretation takes place, when a case is presented in which the law or the treaty, according to the rigor of the terms, lead to something unlawful. This exception must then be made, since nobody can promise or ordain what is unlawful. For this reason, though assistance has been promised to an ally in all his wars, no assistance ought to be given him when he undertakes one that is manifestly unjust.”—Same, sec. 293.
Also, “We should, in relation to things odious,” (that is, “everything that in its own nature is rather hurtful than of use to the human race,”) “take the terms in the most confined sense.”—Same, sec. 308.
The Supreme Court of the United States, also, say, “An act of congress,” (and the same reason applies to the constitution,) “ought never to be construed to violate the law of nations, if any other possible construction remains.”—2 Cranch, 64.
To understand the force of this last rule, some definition of the law of nations is necessary. The best general definition of it is, that which considers nations as individuals, and then applies the same principles of natural law to them, that are applicable to individuals. This rule, however, requires to be modified by being made more lenient to nations, in certain cases, than to individuals. For example; the whole people of a nation are not to have war made upon them, for wrongs done by their government, any sooner or further than is necessary to compel them to redress those wrongs as soon as, in the nature of things, they (the people) can do it, by changing, or operating upon their government. The reasons are these: The people, by instituting government, or appointing certain individuals to administer it, do not authorize those individuals to commit any wrongs against foreign nations. They are not, therefore, themselves culpable for those wrongs. When, then, such wrongs are committed, all that the people can be required to do, is that they dismiss the wrong doers from power, and appoint others who will redress the injuries committed. And to do this, the people must be allowed such time as is reasonable and necessary, which will be more or less, according to circumstances. But ample time must be sure to be allowed in all cases, before war against them can be lawful.
2. In controversies as to their respective rights and wrongs, nations are each entitled to longer time for investigating and determining their rights than individuals, because it is not in the nature of things possible that a whole people can investigate such questions with the same promptness that individuals can investigate their respective rights in their private controversies; and a whole people are not to be held liable, by having war made upon them, until they have had ample, or, at least, reasonable, time to investigate the matters in controversy.
3. Nations are entitled to longer delays for fulfilling their contracts, paying their debts, &c., than individuals, because governments, no more than individuals, can be required to perform impossibilities, and a government’s means of paying its debts must be obtained by systematic processes of taxation, which require a longer or shorter time, according to the wealth and resources of the country.
4. But another reason why greater forbearance is due to nations than to individuals, is, that it generally happens that a part only of a nation are disposed to withhold justice, while the rest are willing to do it. Yet if the nation, as a whole, were held responsible to the same rigid rules as an individual, by having war declared on the first want of promptitude in fulfilling their duty, the innocent would be involved in the same punishment with the guilty.
For all these reasons, and some others, great lenity and forbearance in the enforcement of rights is demanded by the law of nations, or by the natural law applicable to nations.
To apply the foregoing principles: If the war in which the United States are now engaged with Mexico, be one, not of defence, but of aggression, on their part, or be made in violation of natural law, it is unconstitutional, and all proceedings had in the prosecution of it are illegal. The enlistments of soldiers for that service are illegal; and the soldiers are not bound by their enlistments. The soldiers legally owe no obedience to their officers. The officers have no legal authority over their soldiers. The oaths of the officers to obey the laws of the United States, while they are in the territory of Mexico, are of no legal obligation. And the officers and soldiers, while in Mexico, are in no way legally amenable to the government or laws of the United States for their conduct. They owe no legal obedience to the orders of the president. They are, in the eye of our own law, mere banditti. They may throw off all allegiance to the government of the United States, turn conquerors on their own account, and it will be no offence against the laws of the United States. The appropriations for carrying on the war in Mexico are illegal, and might, with as much constitutional authority, be made to Mexican brigands, as to our own soldiers. Finally, our soldiers are bound to know our own constitutional law on this point, and to know that they are acting without legal authority. They are, therefore, not entitled to the rights of prisoners of war, in case they should fall into the hands of the Mexican government, but are liable to he treated as robbers and murderers; and our government, in such an event, would have no constitutional right to protect them, by force, from their liability to Mexican laws, for all the crimes they are now committing.
[* ] 4 Jefferson’s Correspondence, 373, 391, 392, 396.
[† ] 4 Jefferson’s Correspondence, 391, 392, 396.
[* ] Story says, “The true office of the preamble is to expound the nature, and extent, and application of the powers actually conferred by the constitution.”—1 Story’s Com. Const., 445.