Front Page Titles (by Subject) APPENDIX A.: Neither the Constitution, nor either of the acts of Congress of 1793 or 1850, requires the surrender of Fugitive Slaves. - A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850
Return to Title Page for A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850
The Online Library of Liberty
A project of Liberty Fund, Inc.
APPENDIX A.: Neither the Constitution, nor either of the acts of Congress of 1793 or 1850, requires the surrender of Fugitive Slaves. - Lysander Spooner, A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850 
A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850 (Boston: Bela Marsh, 1850).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Neither the Constitution, nor either of the acts of Congress of 1793 or 1850, requires the surrender of Fugitive Slaves.
In the preceding chapters, it has been admitted, for the sake of the argument, that the constitution, and the acts of Congress of 1793 and 1850, require the delivery of Fugitive Slaves. But such really is not the fact. Neither the constitutional provision, nor either of said acts of congress, uses the word slave, nor slavery, nor any language that can legally be made to apply to slaves. The only “person” required by the constitution to be delivered up, is described in the constitution as a “person held to service or labor in one state, under the laws thereof.” This language is no legal description of a slave, and can be made to apply to a slave only by a violation of all the most imperative rules of interpretation, by which the meaning of all legal instruments is to be ascertained.
The word “held” is a material word in this description. Its legal meaning is synonymous with that of the words “bound,” and “obliged.” It is used in bonds, as synonymous with those words, and in no other sense. It is also used in laws and other legal instruments. And its legal meaning is to describe persons held by some legal contract, obligation, duty, or authority, which the law will enforce. Thus, in a bond, a man acknowledges himself “held, and firmly bound and obliged” to do certain things mentioned in the bond,—and the law will compel a fulfillment of the obligation. The laws “hold” men to do various things; and by holding them to do those things, is meant that the laws will compel them to do them. Wherever a person is described in the laws as being “held” to do any thing,—as to render “service or labor,” for example,—the legal meaning invariably is that he is held by some legal contract, obligation, duty, or authority, which the laws will enforce,—(either specifically, or by compelling payment of damages for non-performance). I presume no single instance can be found, in any of the laws of this country, since its first settlement, in which the word “held” is used in any other than this legal sense, when used to describe a person who is “held” to do any thing, “under the laws.” And such is its meaning, and its only meaning, in this clause of the constitution. If there could be a doubt on this point, that doubt would be removed by the additional words, “under the laws,” and the word “due” as applied to the “service or labor,” to which the person is “held.”
Now a slave is not “held” by any legal contract, obligation, duty, or authority, which the laws will enforce. He is “held” only by brute force. One person beats another until the latter will obey him, work for him, if he require it, or do nothing if he require it. This is slavery, and the whole of it. This is the only manner in which a slave is “held to service or labor.”
The laws recognize no obligation on the part of the slave to labor for or serve his master. If he refuse to labor, the law will not interfere to compel him. The master must do his own flogging, as in the case of an ox or a horse. The laws take no more cognizance of the fact whether a slave labors or not, than it does of the fact whether an ox or a horse labors.
A slave then is no more “held” to labor, in any legal sense, than a man would be in Massachusetts, whom another person should seize and beat until he reduced him to subjection and obedience. If such a man should escape from his oppressor, and take refuge in Carolina, he could not be claimed under this clause of the constitution, because he would not be “held” in any legal sense, (that is, by any legal contract, obligation, duty, or authority), but only by brute force. And the same is the case in regard to slaves. Senator Mason of Virginia, in the extract before given from his speech, virtually admits this to be the fact.*
It is an established rule of legal interpretation, that a word used in laws, to describe legal rights, must be taken in a legal sense. This rule is as imperative in the interpretation of the constitution, as of any other legal instrument. To prove this, let us take another example. The constitution (Art. 1, Sec. 6), provides that “for any speech or debate in either house, they (the Senators and Representatives) shall not be questioned in any other place.” Now this provision imposes no restriction whatever upon the Senators and Representatives being “questioned for any speech or debate,” by any body and every body, who may please to question them, or in any and every place,—with this single exception, that they must not “be questioned” legally,—that is, they must not be held to any legal accountability.
It would be no more absurd to construe this provision about questioning Senators and Representatives, so as to make it forbid the people, in their private capacity, to ask any questions of their Senators and Representatives, on their return from Congress, as to their doings there, instead of making it apply simply to a legal responsibility, than it is to construe the words “held to service or labor,” as applied to a person held simply by brute force, (as in the case supposed in Massachusetts), instead of persons held by some legal contract, obligation, or duty, which the law will enforce.
As the slave, then, is “held to service or labor,” by no contract, obligation, or duty, which the law will enforce, but only by the brute force of the master, the provision of the constitution in regard to “persons held to service or labor” can have no more legal application to him, than to the person supposed in Massachusetts, who should at one time be beaten into obedience, and afterwards escape into Carolina.
The word “held” being, in law, synonymous with the word “bound,” the description, “person held to service or labor,” is synonymous with the description in another Section, (Art. 1, Sec. 2), to wit, “those bound to service for a term of years.” The addition, in the one case, of the words “for a term of years,” does not alter the meaning, for it does not appear that, in the other case, they are “held” beyond a fixed term.
In fact, every body, courts and people, admit that “persons bound to service for a term of years,” as apprentices and other indented servants, are to be delivered up under the provision relative to “persons held to service or labor.” The word “held,” then, is regarded as synonymous with “bound,” whenever it is wished to deliver up “persons bound to service.” If, then, it be synonymous with the word “bound,” it applies only to persons who are “bound,” in a legal sense,—that is, by some legal contract, obligation, or duty, which the law will enforce. The words cannot be stretched beyond their necessary and proper legal meaning; because all legal provisions in derogation of liberty must be construed strictly. The same words that are used to describe a “person held to service or labor,” by a legal contract, or obligation, certainly cannot be legally construed to apply also to one who is “held” only by private violence, and brute force.
Mr. Webster, in his speech of March 7th, 1850, admits that the word “held” is synonymous with the word “bound,” and that the language of the constitution itself contains no requirement for the surrender of fugitive slaves. He says—
“It may not be improper here to allude to that—I had almost said celebrated—opinion of Mr. Madison. You observe sir, that the term slavery is not used in the constitution. The constitution does not require that fugitive slaves shall be delivered up; it requires that persons bound to service in one state, and escaping into another, shall be delivered up. Mr. Madison opposed the introduction, of the term slave or slavery into the constitution; for he said he did not wish to see it recognized by the constitution of the United States of America that there could be property in men.”
Had the constitution required only that “persons bound to service or labor,” should be delivered up, it is evident that no one would claim that the provision applied to slaves. Yet it is perfectly evident also that the word “held” is simply synonymous with the word “bound.”
One can hardly fail to be astonished at the ignorance, fatuity, cowardice, or corruption, that has ever induced the north to acknowledge, for an instant, any constitutional obligation to surrender fugitive slaves.
The Supreme Court of the United States, in the Prigg case, (the first case in which this clause of the constitution ever came under the adjudication of that court), made no pretence that the language itself of the constitution afforded any justification for a claim to a fugitive slave. On the contrary, they made the audacious and atrocious avowal, that for the sole purpose of making the clause apply to slaves, they would disregard,—as they acknowledged themselves obliged to disregard,—all the primary, established, and imperative rules of legal interpretation, and be governed solely by the history of men’s intentions, outside of the constitution. Thus they say:
“Before, however, we proceed to the points more immediately before us, it may be well,—in order to clear the case of difficulty,—to say, that in the exposition of this part of the constitution, we shall limit ourselves to those considerations which appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature. It will, indeed, probably, be found, when we look to the character of the constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions; that no uniform rule of interpretation can be applied to it, which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And, perhaps, the safest rule of interpretation after all will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed. * * * * Historically, it is well known, that the object of this clause was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude.”
16 Peters, 610-11.
Thus it will be seen, that on the strength of history alone, they assume that “many of the provisions of the constitution were matters of compromise,” (that is, in regard to slavery); but they admit that the words of those provisions cannot be made to express any such compromise, if they are interpreted according to any “uniform rule of interpretation,” or “any rules of interpretation of a more general nature,” than the mere history of those particular clauses. Hence, “in order to clear the case of (that) difficulty,” they conclude that “perhaps the safest rule of interpretation after all will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.”
The words “consistent with their legitimate meaning,” contain a deliberate falsehood, thrown in by the court from no other motive than the hope to hide, in some measure, the fraud they were perpetrating. If it had been “consistent with the legitimate meaning of the words” of the clause, to apply them to slaves, there would have been no necessity for discarding, as they did, all the authoritative and inflexible rules of legal interpretation, and resorting to history to find their meaning. They discarded those rules, and resorted to history, to make the clause apply to slaves, for no other reason whatever, than that such meaning was not “consistent with the legitimate meaning of the words.” It is perfectly apparent that the moment their eyes fell upon the “words” of the clause, they all saw that they contained no legal description of slaves.
Stripped, then, of the covering, which that falsehood was intended to throw over their conduct, the plain English of the language of the Court is this,—that history tells us that certain clauses of the constitution were intended to recognize and support slavery; but inasmuch as such is not the legal meaning of the words of those clauses, if interpreted by the established rules of interpretation, we will, “in order to clear the case of (that) difficulty,” just discard those rules, and pervert the words so as to make them accomplish whatever ends history tells us were intended to be accomplished by them.
It was only by such a naked and daring fraud as this, that the court could make the constitution authorize the recovery of fugitive slaves.
And what were the rules of interpretation, which they thus discarded, “in order to clear the case of difficulty,” and make the constitution subserve the purposes of slavery? One of them is this, laid down by the Supreme Court of the United States:
“The intention of the instrument must prevail; this intention must be collected from its words.”
12 Wheaton, 332.
Without an adherence to this rule, it is plain we could never know what was, and what was not, the constitution.
Another rule is that universal one, acknowledged by all courts to be imperative, that language must be construed strictly in favor of liberty and justice.
The Supreme Court of the United States have laid down this rule in these trong terms.
“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”
United States vs. Fisher, 2 Cranch, 390.
Story delivered this opinion of the court, (in the Prigg case), discarding all other rules of interpretation, and resorting to history to make the clause apply to slaves. And yet no judge has ever scouted more contemptuously than Story, the idea of going out of the words of a law, or the constitution, and being governed by what history may say were the intentions of the authors. He says,
“Such a doctrine would be novel and absurd. It would confuse and destroy all the tests of constitutional rights and authorities. Congress could never pass any law without an inquisition into the motives of every member; and even then they might be re-examinable. Besides, what possible means can there be of making such investigations? The motives of many of the members may be, nay must be, utterly unknown, and incapable of ascertainment by any judicial or other inquiry; they may be mixed up in various manners and degrees; they may be opposite to, or wholly independent of each other. The constitution would thus depend upon processes utterly vague, and incomprehensible; and the written intent of the legislature upon its words and acts, the lex scripta, would be contradicted or obliterated by conjecture, and parol declarations, and fleeting reveries, and heated imaginations. No government on earth could rest for a moment on such a foundation. It would be a constitution of sand, heaped up and dissolved by the flux and reflux of every tide of opinion. Every act of the legislature, (and for the same reason also every clause of the constitution), must therefore be judged of from its objects and intent, as they are embodied in its provisions.”
2 Story’s Comm., 534.
Also he says,
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. * * 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. * * 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. * * Nothing but the text itself was adopted by the people. * * 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 statesman, or the jealous exaggerations 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? What would 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 be 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.”
1 Story’s Comm. on Const., 387 to 392.
And Story has said much more of the same sort as to the absurdity of relying upon “history” for the meaning of the constitution.
It is manifest that if the meaning of the constitution is to be warped in the least, it may be warped to any extent, on the authority of history; and thus it would follow that the constitution would in reality be made by the historians, and not by the people. It would be impossible for the people to make a constitution, which the historians might not change at pleasure, by simply asserting that the people intended thus or so.
But, in truth, Story and the court, in saying that history tells us that the clause of the constitution in question, was intended to apply to fugitive slaves, are nearly as false to the history of the clause, as they are to its law.
There is not, I presume, a word on record, (for I have no recollection of having ever seen or heard of one), that was uttered either in the national convention that framed the constitution, or in any northern state convention that ratified it, that shows that, at the time the constitution was adopted, any northern man had the least suspicion that the clause of the constitution, in regard to “persons held to service or labor,” was ever to be applied to slaves.
In the national convention, “Mr. Butler and Mr. Pinckney moved to require ‘fugitive slaves and servants to be delivered up like criminals.’ ” “Mr. Sheiman saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.”
(Madison papers, 1447-8.)
In consequence of this objection, the provision was changed, and its language, as it now stands, shows that the claim to the surrender of slaves was abandoned, and only the one for servants retained.*
It does not appear that a word was ever uttered, in the national convention, to show that any member of it imagined that the provision, as finally agreed upon, would apply to slaves.
But after the national convention had adjourned, Mr. Madison went home to Virginia, and Mr. Pinckney, to South Carolina, and in the State conventions of those states, set up the pretence that the clause was intended to apply to slaves. I think there is no evidence that any other southern member of the national convention followed their example. In North Carolina, Mr. Iredell, (not a member of the national convention), said the provision was intended to refer to slaves; but that “The northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.”
I think the declarations of these three men, Madison, Pinckney, and Iredell, are all the “history,” we have, that even southern men, at that time, understood the clause as applying to slaves.
In the northern conventions no word was ever uttered, so far as we have any evidence, that any man dreamed that this language would ever be understood as authorizing a claim for fugitive slaves. It is incredible that it could have passed the northern conventions without objection, (indeed it could not have passed them at all), if it had been understood as requiring them to surrender fugitive slaves; for, in several of them, it was with great difficulty that the adoption of the constitution was secured, when no such objection was started.
The construction, placed upon the provision at the present day, is one of the many frauds which the slaveholders, aided by their corrupt northern accomplices, have succeeded in palming off upon the north. In fact the south, in the convention, as it has ever done since, acted upon the principle of getting by fraud, what it could not openly obtain. It was upon this principle that Mr. Madison acted when he said that they ought not to admit, in the constitution, the idea that there could be property in man. He would not admit that idea, in the constitution itself; but he immediately went home and virtually told the State convention that that was the meaning which he intended to have given to it in practice. He knew well that if that idea were admitted in the instrument itself, the north would never adopt it. He therefore conceived and adhered to the plan of having the instrument an honest and free one in its terms, to secure its adoption by the north, and of then trusting to the fraudulent interpretations that could be accomplished afterwards, to make it serve the purposes of slavery.
Further proof of his fraudulent purpose, in this particular, is found in the fact that he wrote the 42d number of the Federalist, in which he treats of “the powers which provide for the harmony and proper intercourse among the states.” But he makes no mention of the surrender of fugitives from “service or labor,” as one of the means of promoting that “harmony and proper intercourse.” He did not then dare say to the north that the south intended ever to apply that clause to slaves.
But it is said that the passage of the act of 1793, shows that the north understood the constitution as requiring the surrender of fugitive slaves. That act is supposed to have passed without opposition from the north; and the reason was that it contained no authority for, or allusion to, the surrender of fugitive slaves; but only to fugitives from justice, and “persons held to service or labor.” The south had not at that time become sufficiently audacious to make such a demand. And it was twenty-three years, so far as I have discovered, (and I have made reasonable search in the matter), after the passage of that act, before a slave was given up, under it, in any free state, or the act was acknowledged by the supreme court of any free state, to apply to slaves.
In 1795, two years after the passage of the act of congress, and after the constitution had been in force six years, a man was tried in the supreme court of Pennsylvania, on an indictment, under a statute of the state, against seducing or carrying negroes or mulattoes out of the state with the intention to sell them, or keep them, as slaves.
“Upon the evidence, in support of the prosecution, it appeared that negro Toby had been brought upon a temporary visit to Philadelphia, as a servant in the family of General Sevier, of the state of Virginia; that when General Sevier proposed returning to Virginia, the negro refused to accompany him”—but was afterwards forcibly carried out of the state. It appeared also in the evidence, that it was proposed, by Richards, the defendant, that the negro be enticed into New Jersey, (a slave state), and there seized and carried back to Virginia.
“The evidence, on behalf of the defendant, proved that Toby was a slave belonging to the father of General Sevier, who had lent him to his son, merely for the journey to Philadelphia.”
The defendant was found not guilty, agreeable to the charge of the Chief Justice; and what is material is, that the case was tried wholly under the laws of Pennsylvania, which permitted any traveller, who came into Pennsylvania, upon a temporary excursion for business or amusement, to detain his slave for six months, and entitled him to the aid of the civil police to secure and carry him away.
Republica vs. Richards 2 Dallas 224.
Not one word was said, by either court or counsel, of the provision of the United States constitution, in regard to “persons held to service or labor,” or of the act of 1793, as having any application to slaves, or as giving any authority for the recovery of fugitive slaves. Neither the constitution, nor the act of Congress was mentioned in connection with the subject.
Is it not incredible that this should have been the case, if it had been understood, at that day, that either the constitution, or the act of 1793, applied to slaves?
Would a man have used force in the case, and thus subjected himself to the risk of an indictment under the state laws? or would there have been any proposition to entice the slave into a slave state, for the purpose of seizing him, if it had been understood that the laws of the United States were open to him, and that every justice of the peace (as provided by the act of 1793) was authorized to deliver up the slave?
It cannot reasonably be argued that it was necessary to use force or fraud to take the slave back, for the reason that he had been brought, instead of having escaped, into Pennsylvania, for that distinction seems not to have been thought of until years after. The first mention I have found of it was in 1806.
Butler vs. Hopper, 1 Washington C. C. R. 499.
In 1812 it was first acknowledged by the supreme court of New York, that the act of 1793, applied to slaves, although no slave was given up at the time. But New York then had slaves of her own.
Glen vs. Hodges, 9 Johnson 67.
In 1816 the supreme court of Pennsylvania first acknowledged that the constitution and the act of 1793 applied to slaves. But no slave was then given up.
Commonwealth vs. Holloway, 2 Sargent & Rawle 305.
In 1823 the supreme court of Massachusetts first acknowledged that the constitutional provision in regard to “persons held to service or labor” applied to slaves.
Commonwealth vs. Griffith, 2 Pickering 11.
Few, if any, slaves have ever been given up under the act of 1793, in the free states, until within the last twenty or thirty years. And that fact furnishes ground for a strong presumption that during the first thirty years after the constitution went into operation, it was not generally understood, in the free states, that the constitution required the surrender of fugitive slaves.
But it is said that the ordinance of 1787, passed contemporaneously with the formation of the constitution, requires the delivery of fugitive slaves, and that the constitution ought to be taken in the same sense. The answer to this allegation is that the ordinance does not require the delivery of fugitive slaves, but only of persons “from whom labor or service is lawfully claimed.” This language certainly is no legal description of a slave.
But beyond, and additional to, all this evidence, that the constitution does not require the surrender of fugitive slaves, is the conclusive and insuperable fact, that there is not now, nor ever has been, any legal or constitutional slavery in this country, from its first settlement. All the slavery that has ever existed, in any of the colonies or states, has existed by mere toleration, in defiance of the fundamental constitutional law.
Even the statutes on the subject have either wholly failed to declare who might, and who might not, be made slaves, or have designated them in so loose and imperfect a manner that it would probably be utterly impossible, at this day, to prove under those statutes, the slavery of a single person now living. Mr. Mason admits as much in the extracts already given from his speech.
But all the statutes, on that subject, whatever the terms, have been unconstitutional, whether passed under the colonial charters, or since under the state governments. They were unconstitutional under the colonial charters, because those charters required the legislation of the colonies to “be conformable, as nearly as circumstances would allow, to the laws, customs, and rights of the realm of England.” Those charters were the fundamental constitutions of the colonies, and of course made slavery illegal in the colonies—inasmuch as slavery was inconsistent with the “laws, customs, and rights of the realm of England.”*
There was therefore no legal slavery in this country, so long as we were colonies—that is, up to the time of the revolution.
After the Declaration of Independence, new constitutions were established in eleven of the states. Two went on under their old charters. Of all the new constitutions, that were in force at the adoption of the constitution of the United States, in 1789, not one authorized, recognized, or sanctioned slavery.*All the recognitions of slavery, that are now to be found in any of the state constitutions, have been inserted since the adoption of the constitution of the United States.
There was therefore no legal or constitutional slavery, in any of the states, up to the time of the formation and adoption of the constitution of the United States, in 1787 and 1789.
There being no legal slavery in the country, at the adoption of the constitution of the United States, all “the people of the United States” become legally parties to that instrument, and of course members of the United States government, by its adoption. The constitution itself declares that “We the people of the United States * * do ordain and establish this constitution.” The term “people” of necessity includes the whole people; no exception being made, none can be presumed—for such a presumption would be a presumption against liberty.
After “the people” of the whole country had become parties to the constitution of the United States, their rights as members of the United States government were secured by it, and they could not afterwards be enslaved by the state governments—for the constitution of the United States is “the supreme law,” (operating “directly on the people and for their benefit,” say the supreme court, 4 Wheaton 404-5), and necessarily secures to all the people individually all the rights it intended to secure to any; and these rights are such as are incompatible with their being enslaved by subordinate governments.
But it will be said that the constitution of the United States itself recognizes slavery, to wit, in the provision requiring “the whole number of free persons” and “three fifths of all other persons” to be counted in making up the basis of representation and taxation. But this interpretation of the word “free” is only another of the fraudulent interpretations, which the slaveholders and their northern accomplices have succeeded in placing upon the constitution.
The legal and technical meaning of the word “free,” as used in England for centuries, has been to designate a native or naturalized member of the state, as distinguished from an alien, or foreigner not naturalized. Thus the term “free British subject” means, not a person who is not a slave, but a native born, or naturalized subject, who is a member of the state, and entitled to all the rights of a member of the state, in contradistinction to aliens, and persons not thus entitled.
The word “free” was used in this sense in nearly or quite all the colonial charters, the fundamental constitutions of this country, up to the time of the revolution. In 1787 and 1789, when the United States constitution was adopted, the word “free” was used in this political sense in the constitutions of the three slaveholding states, Georgia, South Carolina, and North Carolina. It was also used in this sense in the articles of Confederation.*
The word “free” was also used in this political sense in the ordinance of 1787, in four different instances, to wit, three times in the provision fixing the basis of representation, and once in the article of compact, which provides that when the states to be formed out of the territory should have sixty thousand free inhabitants, they should be entitled to admission into the Confederacy.
That the word “free” was here used in its political sense, and not as the correlative of slaves, is proved by the fact that the ordinance itself prohihited slavery in the territory. It would have been absurd to use the word “free” as the correlative of slaves, when slaves were to have no existence under the ordinance.
This political meaning, which the word “free” had borne in the English law, and in all the constitutional law of this country, up to the adoption of the constitution of the United States, was the meaning which all legal rules of interpretation required that congress and the courts should give to the word in that instrument.
But we are told again that the constitution recognizes the legality of the slave trade, and by consequence the legality of slavery, in the clause respecting the “importation of persons.” But the word “importation,” when applied to “persons,” no more implies that the persons are slaves, than does the word “transportation.” It was perfectly understood, in the convention that framed the constitution—and the language was chosen with special care to that end—that there was nothing in the language itself, that legally recognized the slavery of the persons to be imported; although some of the members, (how many we do not know), while choosing language with an avowed caution against “admitting, in the constitution, the idea that there could be property in man,” intended, if they could induce the people to adopt the constitution, and could then get the control of the government, to pervert this language into a license to the slave trade.
This fraudulent perversion of the legal meaning of the language of the constitution, is all the license the constitution ever gave to the slave trade.
Chief Justice Marshall, in the case of the Brig Wilson, (1 Brockenbrough, 433-5), held that the words “import” and “imported,” in an act of Congress, applied to free persons as well as to slaves. If, then, the word “importation,” in the constitution, applies properly to free persons, it certainly cannot imply that any of the persons imported are slaves.
If the constitution, truly interpreted, contain no sanction of slavery, the slaves of this country are as much entitled to the writ of habeas corpus at the hands of the United States government, as are the whites.
[* ] I am confident that Mr. Calhoun made the same admission within two or three years last past, but I have not the paper containing it at hand.
[* ]Servants were, at that time, a very numerous class in all the states; and there were many laws respecting them, all treating them as a distinct class from slaves.
[* ] Washburn, in his “Judicial History of Massachusetts,” (p. 202), says,
“As early as 1770, and two years previous to the decision of Somersett’s case so famous in England, the right of a master to hold a slave had been denied, by the Superior Court of Massachusetts, and upon the same grounds, substantially, as those upon which Lord Mansfield discharged Somersett, when his case came before him. The case here alluded to, was James vs. Lechmere, brought by the Plaintiff, a negro, against his master to recover his freedom.”
[* ] Perhaps it may be claimed by some that the constitution of South Carolina was an exception to this rule. By that constitution it was provided that the qualifications of members of the Senate and House of Representatives “shall be the same as mentioned in the election act.”
“The election act” was an act of the Provincial Assembly passed in 1759, which provided that members of the assembly “shall have in this province a settled plantation or freehold estate of at least five hundred acres of land, and twenty slaves.”
But this act was necessarily void, so far as the requirement in regard to slaves was concerned, because slavery being repugnant to the laws of England, it could have no legal existence in the colony, which was restricted from making any laws except such as were conformable, as nearly as circumstances would allow, to the laws, statutes, and rights of the realm of England.
This part of the act, then, being void at the time it was passed, and up to the time of the adoption of the constitution of the State, the provision in that constitution could not legally be held to give force to this part of the act. Besides, there could be no slaves, legally speaking, in 1778, for the act to refer to.
[* ] For proof that such was the meaning of the word “free” in those instruments, I must refer to my argument on “The Unconstitutionality of Slavery.”