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 XXIII.

ADDITIONAL ARGUMENTS ON THE WORD “FREE.”

ARGUMENT I.

The constitutional argument for slavery rests mainly, if not wholly, upon the word free, in the representative clause; (Art. Sec. 2.)

Yet this clause does not, of itself, at all purport to fix, change or in any way affect, the civil rights or relations of any single individual. It takes it for granted that those rights and relations are fixed, as they really are, by other parts of the instrument. It purports only to prescribe the manner in which the population shall be counted, in making up the basis of representation and taxation; and to prescribe that representation and taxation shall be apportioned among the several States, according to the basis so made up. This is the whole purport of the language of the clause, and the whole of its apparent object; and it is a palpable violation of all legal rules to strain its legal operation beyond this purpose. To use the clause for a purpose nowhere avowed, either in itself or the rest of the instrument, viz., that of destroying rights with which it does not at all purport to intermeddle, is carrying fraudulent and illegal interpretation to its last extent.

Yet this provision for simply counting the population of the country, and apportioning representation and taxation according to that count, has been transmuted, by unnecessary interpretation, into a provision denying all civil rights under the constitution to a part of the very “people” who are declared by the constitution itself to have “ordained and established” the instrument, and who of course, are equal parties to it with others, and have equal rights in it, and in all the privileges and immunities it secures.

If parties, answering to the several descriptions given of them in this clause, can be found, (so as simply to be counted,) without supposing any change or destruction of individual rights, as established by other parts of the instrument, we are bound thus to find and count them, without prejudice to any of their rights. This is a self-evident proposition. That parties, answering to the several descriptions, can be found, without supposing any change or destruction of individual rights, as contemplated by the other parts of the instrument to exist, has already been shown. And this fact is enough to settle the question as to the legal effect of the clause.

The whole declared and apparent object of the clause, viz., the counting of the population, and the apportionment of the representation and taxation according to that count, can be effected without prejudice to the rights of a single individual, as established by the rest of the instrument. This being the case, there is no epithet strong enough to describe the true character of that fraud which would pervert the clause to a purpose so entirely foreign to its declared and apparent object, as that of licensing the denial and destruction of men’s rights; rights everywhere implied throughout the entire instrument.

ARGUMENT II.

It would have been absurd to have used the word “free” in a sense correlative with slaves, because it is a self-evident truth that, taking the word in that sense, all men are naturally and rightfully free. This truth, like all other natural truths, must be presumed to be taken for granted by all people, in forming their constitutions, unless they plainly deny it. Written constitutions of government could not be established at all, unless they took for granted all natural truths that were not plainly denied; because, the natural truths that must be acted upon in the administration of government are so numerous, that it would be impossible to enumerate them. They must, therefore, all be taken for granted unless particular ones be plainly denied. Furthermore, this particular truth, that all men are naturally free, had but recently been acknowledged, and proclaimed even, by the same people who now established the constitution. For this people, under such circumstances, to describe themselves, in their constitution, as “the whole number of free persons, and three fifths of all other persons,” (taking the word “free” in the sense correlative with slaves,) would have been as absurd, in itself, (independently of things exterior to the constitution, and which the constitution certainly cannot be presumed to sanction,) as it would have been to have described themselves as “the whole number of males and females, and three fifths of all other persons.”

Such an absurdity is not to be charged upon a people, upon the strength of a single word, which admits of a rational and appropriate construction.

ARGUMENT III.

The constitution is to be construed in consistency with the Declaration of Independence, if possible, because the two instruments are the two great enactments of the same legislators—the people. They purport to have the same objects in view, viz., the security of their liberties. The Declaration had never been repealed, and legal rules require that an enactment later in time than another, more especially if the former one be not repealed, should be construed in consistency with the earlier one, if it reasonably can be, unless the earlier one be opposed to reason or justice.*

ARGUMENT IV.

It is perfectly manifest, from all the evidence given in the preceding pages, (including Part First of the argument,) that the word “free,” when used in laws and constitutions, to describe one class of persons, as distinguished from another living under the same laws or constitutions, is not sufficient, of itself, to imply slavery as its correlative. The word itself is wholly indefinite, as to the kind of restraint implied as its correlative.* And as slavery is the worst, it is necessarily the last, kind of restraint which the law will imply. There must be some other word, or provision, in the instrument itself, to warrant such an implication against the other class. But the constitution contains no such other word or provision. It contains nothing but the simple word “free.” While, on the other hand, it is full of words and provisions, perfectly explicit, that imply the opposite of slavery.

Under such circumstances, there can be no question which construction we are legally bound to put upon the word in the constitution.†

ARGUMENT V.

Even if the word “free” were taken in the sense correlative with slaves, and if the words “importation of persons” were taker to authorize the importation of slaves, slavery would, nevertheless, for the most part, be now unconstitutional. The constitution would then sanction the slavery of only those individuals who were slaves at the adoption of the constitution, and those who were imported as slaves. It would give no authority whatever for the enslavement of any born in the country, after the adoption of the constitution.

The constitution is the supreme law of the land, and it operates “directly on the people and for their benefit.”* No State laws or constitutions can stand between it and the people, to ward off its benefits from them. Of course, it operates upon all the people, except those, if any, whom it has itself specially excepted from its operation. If it have excepted any from its operation, it has, at most, excepted only those particular individuals who were slaves at the adoption of the constitution, and those who should subsequently be imported as slaves. It has nowhere excepted any that should thereafter be born in the country. It has nowhere authorized Congress to pass laws excepting any who should be born in the country. It has nowhere authorized the States, or recognized the right of the States, to except from its operation any persons born in the country after its adoption. It has expressly prohibited the States from making any such exception; for it has said that itself “shall be the supreme law of the land,” (operating “directly on the people, and for their benefit,” the Supreme Court say,) “anything in the constitution or laws of any State to the contrary notwithstanding.” If the States can say, previous to any one person’s being born under the constitution, that, when born, the constitution shall not operate upon that person, or for his benefit, they may say in advance that it shall not operate upon, or for the benefit of, any person whatever who may be born under the constitution, and thus compel the United States government to die out, or fall into the hands of the naturalized citizens alone, for the want of any recruits from those born in the country.

If, then, the slavery of those who were slaves at the adoption of the constitution, and of those who have since been imported as slaves, were constitutional, the slavery of all born in the country since the adoption of the constitution, is, nevertheless, unconstitutional.*

[* ] Lord Mansfield says, “Where there are different statutes in pari materia, (upon the same subject,) though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and explanatory of each other.”—1 Burrows, 447.

“It is an established rule of construction, that statutes in pari materia, or upon the same subject, must be construed with reference to each other; that is, that what is clear in one statute, shall be called in aid to explain what is obscure and ambiguous in another.”—1 Blackstone, 60, note; 1 Kent, 462.

Rutherforth says, “In doubtful matters it is reasonable to presume that the same person is always in the same mind, when nothing appears to the contrary; that whatever was his design at one time, the same is likewise his design at another time, where no sufficient reason can be produced to prove an alteration of it. If the words, therefore, of any writing, will admit of two or more different senses, when they are considered separately, but must necessarily be understood in one of these senses rather than the other, in order to make the writer’s meaning agree with what he has spoken or written upon some other occasion, the reasonable presumption is, that this must be the sense in which he used them.”—Rutherforth, B. 2, ch. 7, p. 331-2.

[* ] See page 179.

[† ] I doubt if a single instance can be found, even in the statutes of the slaveholding States themselves, in force in 1789, where the word free was used, (as the slave argument claims that it was used in the constitution,) to describe either white persons, or the mass of the people other than slaves, (that is, the white and free colored,) as distinguished from the slaves, unless the statute also contained the word slave, or some other evidence, beside the word free itself, that that was the sense in which the word free was used. If there were no such statute, it proves that, by the usage of legislation, in 1789, even in the slaveholding States themselves, the word free was insufficient, of itself, to imply slavery as its correlative.

I have not thought it necessary to verify this supposition, by an examination of the statute books of the States, because the labor would be considerable, and the fact is not necessary to my case. But if the fact be as I have supposed, it takes away the last shadow of pretence, founded on the usage of legislation at that day, that such was the sense in which the word free was used in the constitution. I commend to the advocates of slavery, (on whom rests the burthen of proving the meaning of the word,) the task of verifying or disproving the supposition.

[* ] The Sup. Court United States say, of “the government of the Union,” that “its powers are granted by the people, and are to be exercised directly on them,” (that is, upon them as individuals,) “and for their benefit.”—4 Wheaton, 404, 405.

[* ] See Chap. 13.