The Online Library of Liberty

A project of Liberty Fund, Inc.

• The Unconstitutionality of Slavery. Part Second.
• Chapter XIV.: The Definition of Law.
• Chapter XV.: Ought Judges to Resign Their Seats?
• Chapter XVI.: “the Supreme Power of a State.”
• Chapter XVII.: Rules of Interpretation. *
• Chapter XVIII.: Servants Counted As Units.
• Chapter XIX.: Slave Representation.
• Chapter XX.: Why Aliens Are Counted As “three Fifths.”
• Chapter XXI.: Why the Word’s “free Persons” Were Used.
• Chapter XXII.: “all Other Persons.”
• Chapter XXIII.: Additional Arguments On the Word “free.”
• Chapter XXIV.: Power of the General Government Over Slavery.
• Appendix A.: Fugitive Slaves.
• Appendix B.: Suggestions to Abolitionists.

CHAPTER XXI.

WHY THE WORD’S “FREE PERSONS” WERE USED.

The words “free persons” were, I think, of themselves—that is, independently of any desire that we may suppose a part of the people to have had to pervert their true meaning—the most appropriate words that could have been used to describe the native and naturalized citizens—that is, the full citizens, as distinguished from those partial citizens, (not technically aliens, though commonly called aliens,)—whom I have supposed the words “all other persons” were intended to describe.

The real distinction between these two classes was, that the first class were free of the government—that is, they were full members of the State, and could claim the full liberty, enjoyment and protection of the laws, as a matter of right, as being parties to the compact; while the latter class were not thus free; they could claim hardly anything as a right, (perhaps nothing, unless it were the privilege of the writ of habeas corpus,) and were only allowed, as a matter of favor and discretion, such protection and privileges as the general and State governments should see fit to accord to them.

It was important that the first of these classes should be described by some technical term; because technical terms are more definite, precise, and certain, in their meaning, than others. And in this case, where representation and taxation were concerned, the greatest precision that language admitted of was requisite. Now, I think, there was no other word in the language that would have described so accurately, as does the word “free,” (when used in its technical sense,) the class which I have supposed it was intended to describe.

The technical term, in the English law, for describing a member of the state, is “free subject.”* “Free subjects” are the whole body of the people, men, women, and children, who were either born within the dominions and allegiance of the crown,† or have been naturalized by act of parliament. Individually, they are members of the state; collectively, they constitute the state. As members of the state, they are individually entitled, of right, to all the essential liberties and rights which the laws secure to the people at large.

“Free subjects” are distinguishable from aliens, or persons born out of the country, but residing in the country, and allowed, as a matter of privilege, such protection as the government sees fit to accord to them.

“Free subjects” are also distinguishable from denizens, who, in the English law, are persons born out of the country, and not naturalized by act of parliament, but have certain privileges conferred upon them by the king’s letters patent.‡

This term, “free subject,” had been universally used in this country, up to the time of the revolution, to describe members of the state, as distinguished from aliens. The colonial charters guarantied to the subjects of the British crown, settling in the colonies, that they and their children should “have and enjoy all the liberties and immunities of free and natural subjects, to all intents, constructions, and purposes whatsoever, as if they and every of them were born within the realm of England.” And up to the revolution, the colonists, as everybody knows, all claimed the rights and the title of “free British subjects.” They did not call themselves citizens of Massachusetts, and citizens of Virginia. They did not call themselves citizens at all. The word citizen was never, I think, used in the English law, except to describe persons residing, or having franchises, in a city; as, for example, citizens of London. But as members of the state, they were all called “free subjects,” or “free British subjects.”

Up to the time of the revolution, then, the term “free subject” was the only term in common use to describe members of the state, as distinguished from aliens. As such it was universally known in the country, and universally used.*

The term “free” was also naturally an appropriate one by which to describe a member of a free state; one who was politically free, and entitled, of right, to the full and free enjoyment of all the liberties and rights that are secured to the members of a government established for the security of men’s personal freedom. What but a “free subject,” or “free person,” could such a member of a free state be appropriately called?

And when it is considered in what estimation “the liberties of England,” “of Englishmen,” and of English subjects everywhere, were held; that they were the peculiar pride and boast of the nation; the title of “free” is seen to be a perfectly natural and appropriate one, by which to designate the political rank of those who were entitled, of right, to the possession and enjoyment of all those liberties, as distinguished from those not entitled to the same liberties.

After the Declaration of Independence, the word “subject” was no longer an appropriate name for the people composing our republican States; for “subject” implied a sovereign; but here the people had themselves become the sovereigns. The term “subject” was, therefore, generally dropped. It seldom appears in the State constitutions formed after the Declaration of Independence.

But although the term “subject” had been generally dropped, yet, up to the adoption of the United States constitution, no other single term had been generally adopted in the several State constitutions, as a substitute for “free subject,” to describe the members of the state, as distinguished from aliens.

The terms people, inhabitants, residents, which were used in most of the State constitutions, did not mark the difference between native and naturalized members of the state, and aliens.

The term “freeman” was used in some of the State constitutions; but its meaning is sometimes indefinite, and sometimes different from what it appears to be in others. For example. In the then existing Declaration of Rights of the State of Delaware, (Sec. 6,) it would seem to be applied only to male adults. In the then existing “constitution and form of government” of Maryland, (Sec. 42,) it would seem to include only males, but males under as well as over twenty-one years of age. Again, in the “Declaration of Rights” of the same State, (Secs. 17 and 21,) it would seem to include men, women, and children. In the “Declaration of Rights” of North Carolina, (Secs. 8, 9, 12, and 13,) it would seem to include men, women, and children. Again, in the “constitution or form of government” of the same State, (Secs. 7 and 8,) it would seem to mean only male persons.

The result was, that the precise legal meaning of the word was not sufficiently settled by usage in this country, nor had the word itself been so generally adopted in the State constitutions, as to make it either a safe or proper one to be introduced into the representative clause in the United States constitution. It would also have been equally objectionable with the words “free persons,” in its liability to be interpreted as the correlative of slavery.

What term, then, should the United States constitution have adopted to distinguish the full members of the state from unnaturalized persons? “Free subjects” was the only term, whose meaning was well settled, and with which the whole people of the United States had ever been acquainted, as expressing that idea, and no other. But the word “subject,” we have already mentioned, was no longer appropriate. By retaining the word “free,” which was the significant word, and substituting the word “persons” for “subjects,” the same body of people would be described as had before been described by the term “free subjects,” to wit, all the full members of the state, the native and naturalized persons, men, women, and children, as distinguished from persons of foreign birth, not naturalized. What term, then, other than “free persons,” was there more appropriate to the description of this body of the people?

The word “free,” it must be constantly borne in mind, if introduced into the constitution, would have to be construed with reference to the rest of the instrument, in which it was found, and of course with reference to the government established by that instrument. In that connection, it could legally mean nothing else than the members of the state, as distinguished from others, unless, (as was not the case,) other things should be introduced into the instrument to give the word a different meaning.

The word “free,” then, was an appropriate word, in itself, and, in its technical sense, (which was its presumptive sense,) it was precisely the word, to be used in the constitution, to describe with perfect accuracy all that body of the people, native and naturalized, who were full members of the state, and entitled, of right, to the full liberty, or political freedom, secured by the laws, as distinguished from aliens and persons partially enfranchised. In short, it described, with perfect accuracy, those who were free of the government established by the constitution. This was its precise legal meaning, when construed, as it was bound to be, with reference to the rest of the instrument; and it was the only meaning that it could have, when thus construed.

A word of this kind was wanted—that is, a word of precisely the same meaning, which the word free, in its technical sense, bears, with reference to the rest of the instrument and the government established by it, was wanted—because representation and taxation were to be based upon the persons described, and perfect accuracy of description was therefore all important.

Now, those who object to the term “free persons” being taken in that sense, are bound to show a better term that might have been used to describe the same class of persons. I think there is not another word in the language, technical, or otherwise, that would have described them so accurately, or so appropriately.

The term “freemen,” we have seen, would not have been so appropriate, for it was liable to be taken in a narrower signification, so as to include only male adults, or persons entitled to the elective franchise. But “free persons” included men, women, and children, voters and non-voters, who were entitled to protection under the laws as of right.

“People,” “residents,” and “inhabitants” would not do, because they included all persons living in the country, native, naturalized, and aliens.

The only other word, that could have been used, was “citizens.” Perhaps if that word had been used, the courts, construing it with reference to the rest of the instrument, would have been bound to put the same construction upon it that they were bound to put upon the words “free persons.” Nevertheless, there were decisive objections against the adoption of it in the representative clause. The word “citizens” was not, at that time certainly, (even if it be now,) a word that had acquired any such definite meaning, either in England, or in this country, as describing the great body of free and equal members of the state, men, women, and children, as had the word “free.” In fact, it had probably never been used in that sense at all in England; nor in this country up to the time of the revolution. And it is probable, (as will hereafter be seen,) that it had never been used in that sense in this country, up to the adoption of the constitution of the United States, unless in the single constitution of Massachusetts. Its meaning, in this country, is, to this day, a matter of dispute. Lawyers, as well as others, differ about it, as will presently be seen.

The word “citizen” is derived from the Latin civis; and its true signification is to describe one’s relations to a city, rather than to a state. It properly describes either a freeman of a city, or a mere resident, as will be seen by the definitions given in the note.*

It will be seen also, by these definitions, that, taking the word in its best sense, and also with reference to the state, it could, at most, only have been held synonymous with the “free persons” or “freemen” of the state; and that we should then have been obliged to employ these latter terms, in their technical senses, in order to define it.

It would also have been even more liable than the term “free” to the objection of impliedly excluding slaves; for in Rome, where the term was used, and whence it has come down to us, they had slaves, who of course were not regarded as citizens; while in England, whence the term “free” was borrowed, they had no slaves.

The term “free citizen” was also used in the then existing State constitutions of Georgia and North Carolina, where they held slaves, (though not legally.) If, then, the word had been employed in the United States constitution, there would have been at least as much reason to say that it excluded slaves, as there would be for saying that the word “free” excluded them.

The term “citizen” was objectionable in still another respect, viz., that it seems to have been previously, as it has been since, employed to define those who enjoyed the elective franchise. But it would be unreasonable that the constitution should base representation and taxation upon a distinction between those enjoying the elective franchise, and “all other persons”—it being left with the States to say who should enjoy that franchise. Yet, if the constitution had used the word “citizen” in connection with representation and taxation, it might have given some color to that idea.

But to prove how inappropriate would have been the use of the word “citizens,” in the representative clause—where a word of a precise and universally known meaning was required—the following facts are sufficient; for we are to look at the word as people looked at it at that day, and not as we look at it now, when it has grown into use, and we have become familiar with it.

Of all the State constitutions in existence in 1789, the word citizen was used in but three, to wit, those of Massachusetts, North Carolina, and Georgia; and in those, only in the following manner:

In the constitution of Massachusetts it was used some half dozen times, and in such connections as would indicate that it was used synonymously with the members of the state.

In the constitution of North Carolina it was used but once, (Sec. 40,) and then the term “free citizen,” was used; thus indicating, either that they had more than one kind of citizens, or that the word citizen itself was so indefinite that its meaning would be liable to be unknown to the people, unless the word free were used to define it.

In the constitution of Georgia it was used but once, (Art. 11,) and then in the same manner as in the constitution of North Carolina, that is, with the word free prefixed to it for the purpose of definition.

In the constitutions of the other ten States, (including the charters of Rhode Island and Connecticut,) the word citizen was not used at all.

In the Articles of Confederation it was used but once, (Art. 4, Sec. 1,) and then the term was, as in the constitutions of Georgia and North Carolina, “free citizens.”

So that there was but one constitution, (that of Massachusetts,) out of the whole fourteen then in the country, in which the word citizen could be said to be used with any definite meaning attached to it. In the three other cases in which it was used, its own indefiniteness was confessed by the addition of the word free, to define it.

A word so indefinite, and so little known to the people, as was the word citizen, was of course entirely unsuitable to be used in the representative clause for the purpose of describing the native and naturalized members of the state, men, women and children, as distinguished from persons not naturalized.

For all these reasons the word citizens was objectionable; while in reference to slavery, it would seem to have been not one whit better than the words “free persons.”

Finally, the term “free persons” was much more appropriate, in itself, to designate the members of a free state, of a republican government, than was the word citizen, which, of itself, implies no necessary relationship to a free state, any more than to an aristocracy.

What objection was there, then, to the use of the words “free persons,” in the constitution, for describing the members of the state? None whatever, save this, viz., the liability of the words to be perverted from that meaning, if those who should administer the government should be corrupt enough to pervert them. This was the only objection. In every other view, the words chosen, (as well the words “free persons” as the words “all other persons,”* ) were the best the English language afforded. They were the most accurate, the most simple, the most appropriate, to express the true idea on which a classification for purposes of representation and taxation should be founded.

These words, then, being, in themselves, the best that could be used, could the North have reasonably objected to their use? No. They could not say to the South, “We fear you do not understand the legal meaning which the word free will bear in this instrument.” For everybody knew that such was the meaning of that word when used to describe men’s relation to the state; and everybody was bound to know, and every lawyer and judge did actually know, that the word, if used in the manner it is in the constitution, could legally be construed only with reference to the rest of the instrument, and consequently could describe only one’s relation to the government established by the instrument; that it was only by violating all legal principles of interpretation that it could be made to describe any merely personal relation between man and man, illegal and criminal in itself, and nowhere else recognized by the instrument, but really denied by its whole purport.

The legal meaning of the word, then, was undoubted; and that was all the North could require. They could not require that other language should be introduced for the special purpose of preventing a fraudulent construction of this word. If it had been intended to form the constitution on the principle of making everything so plain that no fraudulent construction could possibly be put upon it, a new language must have been invented for the purpose; the English is wholly inadequate. Had that object been attempted, the instrument must have been interminable in length, and vastly more confused in meaning than it now is. The only practicable way was for the instrument to declare its object in plain terms in the preamble, as it has done, viz., the establishment of justice, and the security of liberty, for “the people of the United States, and their posterity,” and then to use the most concise, simple, and appropriate language in all the specific provisions of the instrument, trusting that it would all be honestly and legally interpreted, with reference to the ends declared to be in view. And this rule could no more be departed from in reference to slavery, than in reference to any other of the many crimes then prevalent.

It would have been only a mean and useless insult to the honest portion of the South, (if there were any honest ones amongst them,) to have said to the whole South, (as we virtually should have done if any specific reference to slavery had been made,) “We fear you do not intend to live up to the legal meaning of this instrument. We see that you do not even enforce the State constitutions, which you yourselves establish; and we have suspicions that you will be equally false to this. We will, therefore, insert a special provision in relation to slavery, which you cannot misconstrue, if you should desire to do so.”

The South would have answered, “Whatever may be your suspicions of us, you must treat with us, if at all, on the presumption that we are honorable men. It is an insult to us for you to propose to treat with us on any other ground. If you dare not trust us, why offer to unite with us on any terms? If you dare trust us, why ask the insertion of specifications implying your distrust? We certainly can agree to no instrument that contains any imputations upon our own integrity. We cannot reasonably be asked to defame ourselves.”

Such would have been the short and decisive answer of the South, as of any other community. And the answer would have been as just, as it would be decisive.

All, then, that the North could ask of the South was to agree to an honest instrument, that should “be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding,” and that all State, as well as national officers, executive, legislative, and judicial, should swear to support it. This the South were ready to do, some probably in good faith, others in bad faith. But no compact could be formed except upon the presumption that all were acting in good faith, whatever reason they may have had to suspect the contrary on the part of particular portions of the country, or with reference to particular portions of the instrument. And it would have been as foolish as useless to have suggested the idea of especial guards against fraudulent constructions in particular cases.

It was a great point gained for liberty, to get the consent of the whole country to a constitution that was honest in itself, however little prospect there might be that it would be speedily enforced in every particular. An instrument, honest in itself, saved the character and conscience of the nation. It also gave into the hands of the true friends of liberty a weapon sure to be sufficient for their purposes, whenever they should acquire the numbers necessary to wield it to that end.

[* ] “Subjects are members of the commonwealth, under the king their head.” Jacob’s, Williams’, and Cunningham’s Law Dictionaries.

[† ] “All those are natural-born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions.”—7 Coke’s Rep., p. 18. Bacon’s Abridge., title Alien. Cunningham’s Law Dictionary, title Alien.

[‡ ] “A denizen is in a kind of middle state, between an alien and a natural-born subject, and partakes of both of them.”—1 Blackstone, 373. Jacob’s Law Dict.

[* ] The only other term, I think, that was ever used in the English law, in a similar sense, was “freeman;” as, for instance, “freeman of the realm.” But “free subject” was the common term. “Freeman” was more generally used to denote members of incorporated trading companies, and persons possessing franchises in a city. Besides, it did not, I think, so generally, if ever, include women and children, as did “free subjects.”

[* ] “Civis, a citizen; a freeman or woman; a denizen.”—Ainsicorth.

“Citizen, a freeman of a city; not a foreigner; not a slave.”—Johnson.

“Citizen, a freeman of a city.”—Bailey.

“Citizens (ci[Editor: illegible letter]cs) are either freemen, or such as reside and keep a family in the city, &c., and some are citizens and freemen, and some are not, who have not so great privileges as the others.”—Williams’ Law Dictionary; Cunningham’s do.

“Citizen, a native or inhabitant of a city, vested with the freedom and rights thereof.”—Rees’ Cyclopedia.

“The civil government of the city of London is vested by charters and grants from the kings of England, in its own corporation, or body of citizens.”—Rees’ Cyclopedia.

“Citoyen, (Fr.) citizen, an inhabitant, or freeman of a city.”—Boyer.

“Citizen, an inhabitant of a city; one who dwells or inhabits in a city; one who possesses or enjoys certain privileges of a city; a freeman of a city; one who follows, pursues, or practises the trades or businesses of a city, as opposed to those who do not.”—Richardson.

“Though they are in the world, they are not of it, as a citizen of one city may live in another, and yet not be free of it, nor properly of it, but a mere stranger and a foreigner.”—Bishop Beveridge, cited by Richardson.

“Citizen. 1. The native of a city, or an inhabitant who enjoys the freedom and privileges of the city in which he resides; the freeman of a city, as distinguished from a foreigner, or one not entitled to its franchises. * * *

5. In the United States, a person, native or naturalized, who has the privilege of exercising the electire franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate.”—Webster.

“Citizens, persons. One who, under the constitution and laws of the United States, has a right to vote for representatives in congress, and other public officers, and who is qualified to fill offices in the gift of the people.”—Bouvier’s (American) Law Dict.

Kent denies that citizenship depends on one’s right of suffrage, and says that women and children are citizens.—2 Kent, 258, note in third edition.

I am not aware that Story anywhere gives a definition of the word citizen, as it is used in the constitution. He says, that “every citizen of a State is ipso facto a citizen of the United States;” and that “a person who is a naturalized citizen of the United States, by a like residence in any State in the Union, becomes ipso facto a citizen of that State.”—(3 Com. on Const., p. 555-6.) But this saying that a citizen of a State is a citizen of the United States, and vice verso, gives us no information as to who is either a citizen of a State, or of the United States, other than those “naturalized” by act of Congress.

These authorities show that the word citizen has had different meanings, and that its meaning was not, at the adoption of the constitution, and even now is not, well settled, and therefore that it was not a proper word to be used in a clause where certainty was so important.

It is especially uncertain whether the word citizens would have included women and children, as do the words “free persons.”

[* ] See Chap. 20 and 22.