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 XXII.

“ALL OTHER PERSONS.”

It has been already shown, (in chapter 20,) that there was a sufficient, and even a necessary reason for the use of the words “all other persons,” in preference to the word “aliens.”

That reason was, that the word “alien” had a technical meaning, implying exclusion from office, exclusion from suffrage, and exclusion from the right to hold real estate; whereas, the constitution intended no exclusion whatever, except simply from the three offices of president, senator, and representative. The word “aliens,” then, would have been a false word of itself, and would also have furnished ground for many mischievous and unfriendly implications and prejudices against the parties concerned.

If, then, only this single class of persons had been intended, there was ample reason for the use of the words, “all other persons;” while, on the slave hypothesis—that is, on the hypothesis that the words include only slaves, as they are generally supposed to do—no reason at all can be assigned for the use of these words, instead of the word slave, except such a reason as we are not at liberty to attribute to a law or constitution, if by any other reasonable construction it can be avoided.

But whether the words “all other persons” include slaves, or unnaturalized persons, there was still another reason for the use of the words, “all other persons,” in preference either to the word slaves, or the word aliens. That reason was, that the three fifths class was to include more than one kind of persons, whether that one kind were slaves or unnaturalized persons. “Indians not taxed” were to be included in the same count, and, therefore, neither the word slaves, nor the word aliens, would have correctly described all the persons intended.

So far as I am aware, all those who hold slavery to be constitutional, have believed that “Indians not taxed” were excluded both from the count of units, and the three fifths count; that the words “all other persons” refer solely to slaves; and that those words were used solely to avoid the mention of slaves, of which the people were ashamed. They have believed these facts just as firmly as they have believed that slavery was constitutional.

I shall attempt to prove that “Indians not taxed,” instead of being excluded from both counts, were included in the three fifths class, and, consequently, that the words “all other persons” were perfectly legitimate to express the two kinds of persons, of which that class were to be composed. If this proof be made, it will furnish another instance in which those who hold slavery to be constitutional, have made false law, by reason of their abandoning legal rules of interpretation, and construing everything in the light of their assumed insight into certain knavish intentions that are nowhere expressed.

The clause reads as follows:—

The question arising on this clause is, whether there be any class made by it, except the class of units, and the three fifths class? Or whether there be three classes, to wit, the class of units, the three fifths class, and another class, “Indians not taxed,” who are not to be counted at all?

To state the question is nearly enough to answer it, for it is absurd to suppose there is any class of “the people of the United States” who are not to be counted at all. “Indians not taxed,” (that is, not taxed directly, for all Indians are taxed indirectly,) are as much citizens of the United States as any other persons, and they certainly are not to be unnecessarily excluded from the basis of representation and taxation.*

It would seem to be grammatically plain that the words “all other persons” include all except those counted as units. And it would probably have always been plain that such was their meaning, but for the desire of some persons to make them include slaves, and their belief that, in order to make them include slaves, they must make them include nobody but slaves.

The words “including those bound to service for a term of years, and excluding Indians not taxed,” are parenthetical,† and might have been left out, without altering the sense of the main sentence, or diminishing the number of classes. They are thrown in, not to increase the number of classes, but simply to define who may, and who may not, be included in the first class, the class of units.

This is proved, not only by the fact, that the words are parenthetical, (which would alone be ample proof,) but also by the fact that the two participles, “including” and “excluding,” are connected with each other by the conjunction “and,” and are both parsed in the same manner, both having relation to the “number” counted as units, and to that alone.

The words, “excluding Indians not taxed,” exclude the Indians mentioned simply from the count of the preceding “number,” the number to which the word “excluding” relates; that is, the count of units. They do nothing more. They do not exclude them from any other count; they do not create, or at all purport to create, out of them a distinct class. They do not at all imply that they are not to be counted at all. They do not, of themselves, indicate whether these Indians, that are excluded from the count of units, are, or are not, to be included in, or excluded from, any other count. They simply exclude them from the first count, leaving them to be disposed of as they may be, by the rest of the clause.

To make this point more evident, let us write the clause again, supplying two words that are necessary to make the sense more clear.

“Representatives and direct taxes shall be apportioned among the several States which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, (including therein those bound to service for a term of years, and excluding therefrom Indians not taxed,) three fifths of all other persons.”

Such is plainly the true grammatical construction of the sentence; and the phrases, “including therein,” and “excluding therefrom,” both plainly relate to one and the same number or count, to wit, the number counted as units, and to that only. Grammatically, one of these phrases has no more to do with the class of “all other persons,” than the other.

On grammatical grounds there would be just as much reason in saying that the word “including” includes servants in the class of “all other persons,” as there is in saying that the word “excluding” excludes Indians from that class; for it is perfectly apparent, that the words including and excluding refer only to one and the same number, and that number is the number counted as units.

To illustrate this point further, let us suppose these parenthetical sentences to have been transposed, and the clause to have read thus:

“By adding to the whole number of free persons, (excluding therefrom Indians not taxed, and including therein those bound to service for a term of years,) three fifths of all other persons.”

It is plain that the sense of the clause would not have been in the least altered by this transposition. Yet would anybody then have supposed that Indians were excluded from the class of “all other persons?” Or that “those bound to service for a term of years” were included in the class of “all other persons?” Certainly not. Everybody would then have seen that the words including and excluding both related only to the preceding number—the number counted as units. Yet it is evident that this transposition has not at all altered the grammatical construction or the legal sense of the clause.

The argument for slavery, while it claims that the word including includes servants in the number of units only, claims that the word excluding excludes Indians both from the number of units, and also from the number of “all other persons;” that the word including includes servants in only one count, but that the word excluding excludes Indians from both counts; whereas it is perfectly manifest that the two words, including and excluding, relate to one and the same count, to wit, the count of units, and to that alone.

There would be just as much reason, on grammatical grounds in saying that the word including includes servants in both counts, as there is in saying that the word excluding excludes Indians from both counts.

Inasmuch, then, as the words of the parenthesis, viz., the words “including those bound to service for a term of years, and excluding Indians not taxed,” refer only to the count of units, and serve only to define those who may, and those who may not, be included in that count, they do not, and cannot, create any new class, additional to the two named exteriorly to the parenthesis, to wit, the class of units, and the three fifths class.

There being, then, but two classes made, and “Indians not taxed,” being specially excluded from the first, are necessarily included in the last.

Both the grammar and the law of the clause, (though perhaps not its rhetoric,) would therefore be adequately provided for, even if there were no other persons than “Indians not taxed” to be reckoned in the class of “all other persons;” for “Indians not taxed” are “other persons” than those counted as units. And we cannot, I think, make these words, “all other persons,” imply the existence of slaves, if we can find any other persons than slaves for them to refer to.

Further. There being but two classes made, to wit, the class of units and the three fifths class, and “Indians not taxed” being excluded from the first, and therefore necessarily included in the last, it would follow, if the constitution uses the word “free” as the correlative of slaves, that it either considers these Indians as slaves, or that, for purposes of representation and taxation, it counts them in the same class with slaves—a thing that, so far as I know has never been done.

But perhaps it will still be said by the advocates of slavery, (for this is all they can say,) that “Indians not taxed” are not to be counted at all; that they are to be excluded from both classes.

But this is, if possible, making their case still worse. It shows how, in order to extricate themselves from one dilemma, they are obliged to involve themselves in another—that of excluding entirely from the popular basis of representation and taxation, a part of those who are not only not slaves, but are confessedly actual citizens.

To say that “Indians not taxed” are not to be counted at all; that they are to be excluded both from the class of units and the three fifths class, is not only violating the grammar of the clause, (as has already been shown,) but it is violating all common sense. Indians living under the governments of the States and the United States—that is, within the territory over which the United States and one of the several States have actually extended their civil jurisdiction—are as much citizens of the United States as anybody else; and there is no more authority given in the constitution for excluding them from the basis of representation and taxation, than there is for excluding any other persons whatever. In fact, the language of the constitution is express, that all persons shall be counted either in the class of units or in the three fifths class; and there is no escape from the mandate. The only exclusion that the constitution authorizes, is the exclusion of “Indians not taxed” from the count of units.

But perhaps it will be claimed that Indians are not citizens, and therefore they are excluded of course. But there is not the least authority for this assertion, unless it be in regard to those tribes, or nations, who, living within the chartered limits of the States, have, nevertheless, retained their separate independence, usages, and laws, and over whom the States have not extended their civil jurisdiction. The assertion is wholly groundless as to all those Indians who have abandoned their nationality, intermingled with the whites, and over whom the States have extended their jurisdiction. Such persons were as much a part of the people of the United States, and were as much made citizens by the constitution, as any other portion of the people of the country.

This exception of “Indians not taxed” from the count of units, of itself implies that Indians are citizens; for it implies that, but for this express exception, they would all have been counted as units.

Again. This exception cannot be extended beyond the letter of it. It therefore applies only to those “not taxed;” and it excludes even those only from the count of units; thus leaving all that are taxed to be counted as units; which of course implies that they are citizens. And if those Indians, who are taxed, are citizens, those who are “not taxed” are equally citizens. Citizenship does not depend at all upon taxation, in the case of the Indian, any more than in the case of the white man; if it did, a man would be a citizen this year, if he happened to be taxed this year, and yet lose his citizenship next year, if he should happen not to be taxed next year.

But it will be asked, If Indians are citizens, why are they not all counted as units? The reason is obvious. The numbers of Indians in the different States were so unequal, and they contributed so little to the resources of the States in which they lived, that justice required that, in apportioning representation and taxation among the separate States, some discrimination should be made on account of this class of population. Being citizens, they must be represented; and being represented, their State must be taxed for them. And no better arrangement could be agreed on, without making too many classes, than that of ranking them, (so far as representation and taxation were concerned,) on an equality with unnaturalized persons.

It being established that Indians are citizens, it follows that those “not taxed” must be included in the basis of representation and taxation, unless expressly excluded. But the express exclusion does no more than exclude them from the count of units, and the exclusion cannot go beyond the letter. They are therefore necessarily included in the three fifths class, the class which embraces “all other persons” than those counted as units.

If “Indians not taxed” were also to be excluded from the three fifths class, the constitution would have said so; and would also have told us expressly how they should be counted, or that they should not be counted at all.

The clause has thus been explained on the ground of there being but two classes made by it, to wit, the class counted as units, and the three fifths class; which are all the classes that the grammar of the clause will allow to be made. It is to be remarked, however, that if the grammar of the clause be disregarded, and three classes be made, the clause will still be consistent with the alien hypothesis. Indeed, it is immaterial, on the alien hypothesis, whether two or three classes be made. Whether the slave hypothesis can be sustained without making more than two classes, I leave for the advocates of slavery to determine.* They will, at any rate, be obliged to admit that “Indians not taxed” are included in the class described as “all other persons,” and thus lose the benefit of their stereotyped argument, that those words must mean slaves, because they could mean nothing else. They will also be obliged to give up their old surmise about the motive for using the words “all other persons”—a surmise which has always, (in their opinion,) wonderfully strengthened their law, although it seems to have contained not a particle of fact.†

[* ] In saying that Indians were “citizens of the United States,” I of course mean those living under the actual jurisdiction of the United States, and not those who, though living within the chartered limits of the States, had never had the State or United States jurisdiction extended over them; but by treaty, as well as of right, retained their independence, and were governed by their own usages and laws.

It may be necessary for the information of some persons to state that the jurisdictions of the several States have not always been coextensive with their chartered limits. The latter were fixed by the charters granted by the crown, and had reference only to the boundaries of the respective colonies, as against each other. But the rights of the colonies, (and subsequently of the States,) within their chartered limits, were subject to the Indian right of soil, or occupancy, except so far as that right should be extinguished by the consent of the Indians. So long as the Indians should choose to retain their right of soil, or occupancy, and their independence, and separate government, our governments had no jurisdiction over them, and they were not citizens of the United States. But when they surrendered their right of soil, or occupancy, abandoned their separate government, and came within our jurisdiction, or the States and the United States extended their jurisdiction over them, they became citizens of the United States, equally with any other persons. At the adoption of the constitution, there were several independent tribes within the chartered limits of the States. Others had surrendered their independent existence, and intermingled with the whites.

[† ] I have inclosed them in parenthesis to show the sense more distinctly.

[* ] I think it cannot be sustained without making three classes, for the reason before given, viz., that the words “all other persons” must not be held to mean slaves, if there be any other persons that they can apply to.

[† ] The following illustration will make it perfectly apparent that the representative clause of the constitution requires all the people of the country, (“Indians not taxed,” as well as others), to be counted in making up the basis of representation and taxation; that it requires and permits them to be divided into two classes only, viz., the class of units, and the three-fifths class; and, finally, that it imperatively requires that “Indians not taxed” be included in the three-fifths class, or class described as “all other persons.”

The illustration is this. Suppose Congress were to order a census of the people, for the purpose of making a constitutional apportionment of representation and taxation, and should require that the several classes of persons be arranged in separate columns, each under its appropriate head, according to the terms used in the constitution. The table would stand thus:

This table follows the directions of the constitution, to the letter. And yet, it clearly makes but two classes; and the two classes clearly include all the people of the United States. The word “excluding” clearly excludes “Indians not taxed” only from the first class. The second class also clearly includes all that are excluded from the first. It, therefore, clearly includes “Indians not taxed.”

These facts entirely overthrow the argument that “all other persons” must mean slaves, because there were no other persons whom they could mean.

It is of no importance to say that “Indians not taxed” have never been included in the three-fifths count. The answer is, There is the plain letter of the constitution; and if Congress have not complied with it, it has been owing either to their ignorance, or their corruption.