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The Unconstitutionality of Slavery: Part Second (Boston: Bela Marsh, 1860).
The second of a two part series on Spooner’s theory that the institution of slavery was not supported by the ideas behind the constitution and was thus “unconstitutional.”
The text is in the public domain.
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Entered according to Act of Congress, in the year 1847, by
In the Clerk’s Office of the District Court of Massachusetts.
GEORGE A. CURTIS:
new england type and stereotype foundry.
It has been alleged, by way of objection to the definition of law given in chapter first, that under it the law would be uncertain, and government impracticable. Directly the opposite of both these allegations is true. Let us see.
1. Natural law, so far from being uncertain, when compared with statutory and constitutional law, is the only thing that gives any certainty at all to a very large portion of our statutory and constitutional law. The reason is this. The words, in which statutes and constitutions are written, are susceptible of so many different meanings,—meanings widely different from, often directly opposite to, each other, in their bearing upon men’s rights,—that, unless there were some rule of interpretation for determining which of these various and opposite meanings are the true ones, there could be no certainty at all as to the meaning of the statutes and constitutions themselves. Judges could make almost anything they should please out of them. Hence the necessity of a rule of interpretation. And this rule is, that the language of statutes and constitutions shall be construed, as nearly as possible, consistently with natural law.
The rule assumes, what is true, that natural law is a thing certain in itself; also that it is capable of being learned. It assumes, furthermore, that it actually is understood by the legislators and judges who make and interpret the written law. Of necessity, therefore, it assumes further, that they (the legislators and judges) are incompetent to make and interpret the written law, unless they previously understand the natural law applicable to the same subject. It also assumes that the people must understand the natural law, before they can understand the written law.
It is a principle perfectly familiar to lawyers, and one that must be perfectly obvious to every other man that will reflect a moment, that, as a general rule, no one can know what the written law is, until he knows what it ought to be; that men are liable to be constantly misled by the various and conflicting senses of the same words, unless they perceive the true legal sense in which the words ought to be taken. And this true legal sense is the sense that is most nearly consistent with natural law of any that the words can be made to bear, consistently with the laws of language, and appropriately to the subjects to which they are applied.
Though the words contain the law, the words themselves are not the law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and different combinations of senses, in which each and all the words were capable of being taken.
Take, for example, the Constitution of the United States. By adopting one or another sense of the single word “free,” the whole instrument is changed. Yet, the word free is capable of some ten or twenty different senses. So that, by changing the sense of that single word, some ten or twenty different constitutions could be made out of the same written instrument. But there are, we will suppose, a thousand other words in the constitution, each of which is capable of from two to ten different senses. So that, by changing the sense of only a single word at a time, several thousands of different constitutions would be made. But this is not all. Variations could also be made by changing the senses of two or more words at a time, and these variations could be run through all the changes and combinations of senses that these thousand words are capable of. We see, then, that it is no more than a literal truth, that out of that single instrument, as it now stands, without altering the location of a single word, might be formed, by construction and interpretation, more different constitutions than figures can well estimate.
But each written law, in order to be a law, must be taken only in some one definite and distinct sense; and that definite and distinct sense must be selected from the almost infinite variety of senses which its words are capable of. How is this selection to be made? It can be only by the aid of that perception of natural law, or natural justice, which men naturally possess.
Such, then, is the comparative certainty of the natural and the written law. Nearly all the certainty there is in the latter, so far as it relates to principles, is based upon, and derived from, the still greater certainty of the former. In fact, nearly all the uncertainty of the laws under which we live,—which are a mixture of natural and written laws,—arises from the difficulty of construing, or, rather, from the facility of misconstruing, the written law. While natural law has nearly or quite the same certainty as mathematics. On this point, Sir William Jones, one of the most learned judges that have ever lived, learned in Asiatic as well as European law, says,—and the fact should be kept forever in mind, as one of the most important of all truths:—“It is pleasing to remark the similarity, or, rather, the identity of those conclusions which pure, unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.” In short, the simple fact that the written law must be interpreted by the natural, is, of itself, a sufficient confession of the superior certainty of the latter.
The written law, then, even where it can be construed consistently with the natural, introduces labor and obscurity, instead of shutting them out. And this must always be the case, because words do not create ideas, but only recall them; and the same word may recall many different ideas. For this reason, nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another. This is owing to the imperfection of language, and the different senses, meanings, and shades of meaning, which different individuals attach to the same words, in the same circumstances.
Where the written law cannot be construed consistently with the natural, there is no reason why it should ever be enacted at all. It may, indeed, be sufficiently plain and certain to be easily understood; but its certainty and plainness are but a poor compensation for its injustice. Doubtless a law forbidding men to drink water, on pain of death, might be made so intelligible as to cut off all discussion as to its meaning; but would the intelligibleness of such a law be any equivalent for the right to drink water? The principle is the same in regard to all unjust laws. Few persons could reasonably feel compensated for the arbitrary destruction of their rights, by having the order for their destruction made known beforehand, in terms so distinct and unequivocal as to admit of neither mistake nor evasion. Yet this is all the compensation that such laws offer.
Whether, therefore, written laws correspond with, or differ from, the natural, they are to be condemned. In the first case, they are useless repetitions, introducing labor and obscurity. In the latter case, they are positive violations of men’s rights.
There would be substantially the same reason in enacting mathematics by statute, that there is in enacting natural law. Whenever the natural law is sufficiently certain to all men’s minds to justify its being enacted, it is sufficiently certain to need no enactment. On the other hand, until it be thus certain, there is danger of doing injustice by enacting it; it should, therefore, be left open to be discussed by anybody who may be disposed to question it, and to be judged of by the proper tribunal, the judiciary.
It is not necessary that legislators should enact natural law in order that it may be known to the people, because that would be presuming that the legislators already understand it better than the people,—a fact of which I am not aware that they have ever heretofore given any very satisfactory evidence. The same sources of knowledge on the subject, are open to the people, that are open to the legislators, and the people must be presumed to know it as well as they.
2. But it is said further, that government is not practicable under this theory of natural law. If by this is meant only that government cannot have the same arbitrary and undisputed supremacy over men’s rights, as under other systems—the same absolute authority to do injustice, or to maintain justice, at its pleasure—the allegation is of course true; and it is precisely that, that constitutes the merits of the system. But if anything more than that is meant, it is untrue. The theory presents no obstacle to the use of all just means for the maintenance of justice; and this is all the power that government ought ever to have. It is all the power that it can have, consistently with the rights of those on whom it is to operate. To say that such a government is not practicable, is equivalent to saying that no governments are practicable but arbitrary ones; none but those that are licensed to do injustice, as well as to maintain justice. If these latter governments only are practicable, it is time that all men knew it, in order that those who are to be made victims may stand on their defence, instead of being cheated into submission by the falsehood that government is their protector, and is licensed to do, and intends to do, nothing but justice to any.
If we say it is impracticable to limit the constitutional power of government to the maintenance of natural law, we must, to be consistent, have done with all attempts to limit government at all by written constitutions; for it is obviously as easy, by written constitutions, to limit the powers of government to the maintenance of natural law, as to give them any other limit whatever. And if they were thus limited expressly, it would then, for the reasons before given, be as easy, and even altogether more easy, for the judiciary to determine what legislation was constitutional, and what not, than it is under a constitution that should attempt to define the powers of government arbitrarily.
On what ground it can seriously be said that such a government is impracticable, it is difficult to conceive. Protecting the rights of all, it would naturally secure the cordial support of all, instead of a part only. The expense of maintaining it would be far less than that of maintaining a different one. And it would certainly be much more practicable to live under it, than under any other. Indeed, this is the only government which it is practicable to establish by the consent of all the governed; for an unjust government must have victims, and the victims cannot be supposed to give their consent. All governments, therefore, that profess to be founded on the consent of the governed, and yet have authority to violate natural laws, are necessarily frauds. It is not a supposable case, that all, or even any very large part, of the governed, can have agreed to them. Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government.
It is true that those appointed to administer a government founded on natural law, might, through ignorance or corruption, depart from the true theory of the government in particular cases, as they do under any other system; and these departures from the system would be departures from justice. But departures from justice would occur only through the errors of the men; such errors as systems cannot wholly prevent; they would never, as under other systems, be authorized by the constitution. And even errors arising from ignorance and corruption would be much less frequent than under other systems, because the powers of government would be much more definite and intelligible; they could not, as under other systems, be stretched and strained by construction, so as to afford a pretext for anything and everything that corruption might desire to accomplish.
It is probable that, on an average, three fourths, and not unlikely nine tenths, of all the law questions that are decided in the progress of every trial in our courts, are decided on natural principles; such questions, for instance, as those of evidence, crime, the obligation of contracts, the burden of proof, the rights of property, &c., &c. If government be practicable, as we thus see it to be, where three fourths or nine tenths of the law administered is natural, it would be equally practicable where the whole was so.
So far from government being impracticable on principles of natural law, it is wholly impracticable to have a government of law, applicable to all cases, unless the great body of the law administered be natural; because it is impossible for legislation to anticipate but a small portion of the cases that must arise in regard to men’s rights, so as to enact a law for them. In all the cases which the legislature cannot anticipate and provide for, natural law must prevail, or there can be no law for them, and, consequently,—so far as those cases are concerned—no government.
Whether, therefore, we regard the certainty of the law, or the practicability of a government applicable to all cases, the preference is incomparably in favor of natural law.
But suppose it were not so. Suppose, for the sake of the argument, that the meaning of the arbitrary commands of power were, in the majority of cases, more easily ascertained than the principles of natural justice; is that any proof that the former are law, and the latter not? Does the comparative intelligibility of the two determine which is to be adopted as the true definition of law? It is very often easier to understand a lie than to ascertain a truth; but is that any proof that falsehood is synonymous with fact? or is it any reason why falsehood should be held to be fact? As much reason would there be in saying this, as there is in saying that the will of the supreme power of the state is law, or should be held to be law, rather than natural justice, because it is easier to understand the former than to ascertain the latter.
Or suppose, further, that government were impracticable, under such a definition of law as makes law synonymous with natural justice; would that be any argument against the definition? or only against government?
The objection to the practicability of government under such a definition of law, assumes, 1st, that government must be sustained, whether it administer justice or injustice; and, 2d, that its commands must be called law, whether they really are law or not. Whereas, if justice be not law, it may certainly be questioned whether government ought to be sustained. And to this question all reasonable men must answer, that we receive such an abundance of injustice from private persons, as to make it inexpedient to maintain a government for the sole purpose of increasing the supply. But even if unjust government must be sustained, the question will still remain, whether its commands ought to be called law? If they are not law, they should be called by their right name, whatever it may be.
In short, the definition of law involves a question of truth or falsehood. Natural justice either is law, or it is not. If it be law, it is always law, and nothing inconsistent with it can ever be made law. If it be not law, then we have no law except what is prescribed by the reigning power of the state; and all idea of justice being any part of our system of law, any further than it may be specially prescribed, ought to be abandoned; and government ought to acknowledge that its authority rests solely on its power to compel submission, and that there is not necessarily any moral obligation of obedience to its mandates.
If natural justice be not law, then all the decisions that are made by our courts on natural principles, without being prescribed by statute or constitution, are unauthorized, and not law. And the decisions of this kind, as has already been supposed, comprise probably three fourths, or more likely nine tenths, of all the decisions given by our courts as law.
If natural justice be law, then all statutes and constitutions inconsistent with it are no law, and courts are bound to say so. Courts must adopt some definition of law, and adhere to it. They cannot make it mean the two opposite principles of justice and injustice at once. White cannot be made white and black at the same time, by the assertions of all the courts on the globe. Neither can law be made two opposite things at once. It must be either one thing or the other.
No one doubts that there is such a principle as natural law; and natural law is natural justice. If natural justice be law, natural injustice cannot be made law, either by “the supreme power of the state,” or by any other power; and it is a fraud to call it by that name.
“The supreme powers of states,” whether composed of majorities or minorities, have alike assumed to dignify their unjust commands with the name of law, simply for the purpose of cheating the ignorant into submission, by impressing them with the idea that obedience was a duty.
The received definition of law, viz., that it is “a rule of civil conduct prescribed by the supreme power of a state,” had its origin in days of ignorance and despotism, when government was founded in force, without any acknowledgment of the natural rights of men. Yet even in those days the principle of justice competed, as now, with the principle of power, in giving the definition of law; for justice was conceded to be the law in all, or very nearly all, the cases where the will of the supreme power had not been explicitly made known; and those cases comprised, as now, a very large portion of all the cases adjudicated.
What a shame and reproach, nay, what an unparalleled crime is it, that at this day, and in this country, where men’s natural rights are universally acknowledged, and universally acknowledged to be inalienable, and where government is acknowledged to have no just powers except what it derives from the consent of the governed, (who can never be supposed to consent to any invasion of their rights, and who can be supposed to establish government only for their protection,) a definition of law should be adhered to, that denies all these self-evident and glorious truths, blots out all men’s natural rights, founds government on force, buries all present knowledge under the ignorance and tyranny of the past, and commits the liberties of mankind to the custody of unrestrained power!
The enactment and enforcement of unjust laws are the greatest crimes that are committed by man against man. The crimes of single individuals invade the rights of single individuals. Unjust laws invade the rights of large bodies of men, often of a majority of the whole community; and generally of that portion of community who, from ignorance and poverty, are least able to bear the wrong, and at the same time least capable of resistance.
It being admitted that a judge can rightfully administer injustice as law, in no case, and on no pretence whatever; that he has no right to assume an oath to do so; and that all oaths of that kind are morally void; the question arises, whether a judge, who has actually sworn to support an unjust constitution, be morally bound to resign his seat? or whether he may rightfully retain his office, administering justice, instead of injustice, regardless of his oath?
The prevalent idea is, that he ought to resign his seat; and high authorities may be cited for this opinion. Nevertheless, the opinion is probably erroneous; for it would seem that, however wrong it may be to take the oath, yet the oath, when taken, being morally void to all intents and purposes, can no more bind the taker to resign his office, than to fulfil the oath itself.
The case appears to be this: The office is simply power, put into a man’s hands, on the condition, based upon his oath, that he will use that power to the destruction or injury of some person’s rights. This condition, it is agreed, is void. He holds the power, then, by the same right that he would have done if it had been put into his hands without the condition. Now, seeing that he cannot fulfill, and is under no obligation to fulfill, this void condition, the question is, whether he is bound to resign the power, in order that it may be given to some one who will fulfill the condition? or whether he is bound to hold the power, not only for the purpose of using it himself in defence of justice, but also for the purpose of withholding it from the hands of those who, if he surrender it to them, will use it unjustly? Is it not clear that he is bound to retain it for both of these reasons?
Suppose A put a sword into the hands of B, on the condition of B’s taking an oath that with it he will murder C. Now, however immoral the taking of this oath may be, yet, when taken, the oath and the condition are utterly void. They are incapable of raising the least moral obligation, of any kind whatever, on the part of B towards A. B then holds the sword on the same principle, and by the same right, that he would have done if it had been put into his hands without any oath or condition whatever. Now the question is, whether B, on refusing to fulfil the condition, is bound to retain the sword, and use it, if necessary, in defence of C? or whether he is bound to return it to A, in order that A may give it to some one who will use it for the murder of C? The case seems to be clear. If he were to give up the sword, under these circumstances, knowing the use that was intended to be made of it, and it should then be used, by some other person, for the murder of C, he would be, on both moral and legal principles, as much accessary to the murder of C, as though he had furnished the sword for that specific purpose, under any other circumstances whatever.
Suppose A and B come to C with money, which they have stolen from D, and intrust it to him, on condition of his taking an oath to restore it to them when they shall call for it. Of course, C ought not to take such an oath in order to get possession of the money; yet, if he have taken the oath, and received the money, his duty, on both moral and legal principles, is then the same as though he had received it without any oath or condition; because the oath and condition are both morally and legally void. And if he were to restore the money to A and B, instead of restoring it to D, the true owner, he would make himself their accomplice in the theft—a receiver of stolen goods. It is his duty to restore it to D.
Suppose A and B come to C, with a captive, D, whom they have seized with the intention of reducing him to slavery; and should leave him in the custody of C, on condition of C’s taking an oath that he will restore him to them again. Now, although it is wrong for C to take such an oath for the purpose of getting the custody of D, even with a view to set him free, yet, if he have taken it, it is void, and his duty then is, not to give D up to his captors, but to set him at liberty—else he will be an accomplice in the crime of enslaving him.
The principle, in all these cases, appears to be precisely similar to that in the case of a judge, who has sworn to support an unjust constitution. He is intrusted with certain power over the rights of men, on condition of his taking an oath that he will use the power for the violation of those rights. It would seem that there can hardly be a question, on either moral or legal principles, that this power, which he has received on the condition that he shall use it for the destruction of men’s rights, he is bound to retain and use for their defence.
If there be any difference of principle in these several cases, I should like much to see it pointed out. There probably is none. And if there be none, the principle that would induce a judge to resign his power; is only a specimen of the honor that is said to prevail among thieves; it is no part of the morality that should govern men claiming to be just towards all mankind. It is indeed but a poor specimen even of the honor of thieves, for that honor, I think, only forbids the exposure of one’s accomplices, and the seizure, for one’s own use, of more than his agreed share of the spoils; it hardly forbids the restoration of stolen property to its rightful owners.
As long as the dogma is sustained that a judge is morally bound either to fulfil his oath to support an unjust constitution, or to surrender the power that has been entrusted to him for that purpose, so long those, who wish to establish such constitutions, will be encouraged to do so; because they will know that they can always find creatures enough, who will accept the office for its honors and emoluments, and will then execute it, if they must, rather than surrender them. But let the principle be established that such oaths are void, and that the power conferred is therefore held on the same grounds as though the oath had not been taken at all, and one security, at least, for the execution of unjust constitutions is taken away, and the inducement to establish them is consequently weakened.
Judges and other public officers habitually appeal to the pretended obligation of their oaths, when about to perform some act of iniquity, for which they can find no other apology, and for which they feel obliged to offer some apology. Hence the importance of the doctrine here maintained, if it be true.
Perhaps it will be said that a judge has no right to set up his own notions of the validity of a statute, or constitution, against the opinions of those who enact or establish it; that he is bound to suppose that they consider the statute or constitution entirely just, whatever may be his own opinion of it; and that he is therefore bound to yield his opinion to theirs, or to resign his seat. But this is only saying that, though appointed judge, he has no right to be judge. It is the prerogative of a judge to decide everything that is involved in the question of law, or no law. His own mind alone is the arbiter. To say that it is not, is to say that he is not judge. He may err, like other men. Those who appoint him, take the risk of his errors. He is bound only by his own convictions.
But there is no reason in presuming that legislators, or constitution makers, when they violate natural law, do it in the belief that they are conforming to it. Everybody is presumed to know the law, especially natural law. And legislators must be presumed to know it, as well as other men; and if they violate it, (which question the judge must decide,) they, like other men, must be presumed to have done it intentionally.
If any additional argument were needed to enforce the authority of natural law, it would be found in the nature of the only opposing authority, to wit, the authority of “the supreme power of the state,” as it is called.
In most “states,” “the supreme power” is obtained by force, and rests upon force; and its mandates do not necessarily have any other authority than what force can give them.
But in this country, “the supreme power” is acknowledged, in theory, to rest with the people. Our constitutions purport to be established by “the people,” and, in theory, “all the people” consent to such government as the constitutions authorize. But this consent of “the people” exists only in theory. It has no existence in fact. Government is in reality established by the few; and these few assume the consent of all the rest, without any such consent being actually given. Let us see if such be not the fact.
Only the male adults are allowed to vote either in the choice of delegates to form constitutions, or in the choice of legislators under the constitutions. These voters comprise not more than one fifth of the population. A bare majority of these voters,—that is, a little more than one tenth of the whole people,—choose the delegates and representatives. And then a bare majority of these delegates and representatives, (which majority were chosen by, and, consequently, represent but little more than one twentieth of the whole people,) adopt the constitution, and enact the statutes. Thus the actual makers of constitutions and statutes cannot be said to be the representatives of but little more than one twentieth of the people whose rights are affected by their action.
In fact, not one twentieth, but only a little more than one fortieth, of the people, are necessarily represented in our statutory legislation, state and national; for, in the national legislature, and in nearly all the state legislatures, a bare majority of the legislative bodies constitute a quorum, and a bare majority of that quorum are sufficient to enact the laws. The result, then, is substantially this. Not more than one fifth of the people vote. A bare majority of that fifth, (being about one tenth of the whole,) choose the legislators. A bare majority of the legislators, (representing but about one twentieth of the people,) constitute a quorum. A bare majority of the quorum, (representing but about one fortieth of the people.) are sufficient to make the laws.
Finally. Even the will of this one fortieth of the people cannot be said to be represented in the general legislation, because the representative is necessarily chosen for his opinions on one, or at most a few, important topics, when, in fact, he legislates on an hundred, or a thousand others, in regard to many, perhaps most, of which, he differs in opinion from those who actually voted for him. He can, therefore, with certainty, be said to represent nobody but himself.
Yet the statutory and constitutional law, that is manufactured in this ridiculous and fraudulent manner, is claimed to be the will of “the supreme power of the state;” and even though it purport to authorize the invasion, or even the destruction, of the natural rights of large bodies of the people,—men, women, and children,—it is, nevertheless, held to have been established by the consent of the whole people, and to be of higher authority than the principles of justice and natural law. And our judges, with a sanctimony as disgusting as it is hypocritical, continually offer these statutes and constitutions as their warrant for such violations of men’s rights, as, if perpetrated by them in their private capacities, would bring upon them the doom which they themselves pronounce upon felons.
The three preceding chapters, as also chapter first, although their principles are claimed to be of paramount authority, as law, to all statutes and constitutions inconsistent with them, are nevertheless not claimed to have anything to do with the question of the constitutionality or unconstitutionality of slavery, further than this, viz., that they indicate the rule of interpretation that should be adopted in construing the constitution. They prove the reasonableness, propriety, and therefore truth, of the rule, quoted from the supreme court of the United States, and adopted in the prior argument, as the fundamental rule of interpretation; a rule which, if adhered to, unquestionably proves that slavery is unconstitutional. That rule is this.
“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.” 2 Cranch, 390.
The whole question of the constitutionality or unconstitutionality of slavery, is one of construction. And the real question is only whether the rules, applicable to the interpretation of statutes, and all other legal instruments, that are enforced by courts as obligatory, shall be applied also to the interpretation of the constitution? or whether these rules are to be discarded, and the worst possible meaning of which the words are capable put upon the instrument arbitrarily, and for no purpose but to sustain slavery? This is the question, and the whole of it.
The validity of the rule, quoted from the supreme court, has not, so far as I am aware, been denied. But some of the explanations given of the rule, in the prior argument, have been called in question. As the whole question at issue, in regard to the constitutionality of slavery, is one solely of interpretation, it becomes important to sustain, not only the explanations given of this rule, but also some of the other rules laid down in that argument. And hence the necessity of going more fully into the question of interpretation.
The first rule, in the interpretation of the constitution, as of all other laws and contracts, is, “that the intention of the instrument must prevail.”
The reason of this rule is apparent; for unless the intention of the instrument prevail, wherefore was the instrument formed? or established as law? If any other intention is to prevail over the instrument, the instrument is not the law, but a mere nullity.
The intentions of a statute or constitution are always either declared, or presumed.
The declared intentions of a statute or constitution are the intentions that are clearly expressed in terms in the statute or constitution itself.
Where the intentions of statutes and constitutions are not clearly expressed in the instruments themselves, the law always presumes them. And it always presumes the most just and beneficial intentions, which the words of the instruments, taken as a whole, can fairly be made to express, or imply.
Statutes and constitutions, in which no intentions were declared, and of which no reasonable intentions could be presumed, would be of no legal validity. No intentions that might be attributed to them by mere force of conjecture, and exterior history, could be legally ascribed to them, or enforced as law.
The intentions, which individuals, in discussions, conversations, and newspapers, may attribute to statutes and constitutions, are no part of the instruments themselves. And they are not of the slightest importance as evidence of their intentions, especially if they are in opposition, either to the declared, or the presumed, intentions of the instruments. If the intentions of statutes and constitutions were to be gathered from the talk of the street, there would be no use in writing them in terms. The talk of the street, and not the written instruments, would constitute the laws. And the same instrument would be as various and contradictory in its meanings, as the various conjectures, or assertions, that might be heard from the mouths of individuals; for one man’s conjecture or assertion would be of as much legal value as another’s; and effect would therefore have to be given to all, if to any.
Those who argue for slavery, hold that “the intentions of the people” must prevail, instead of “the intentions of the instrument;” thus falsely assuming that there is a legal distinction between the intentions of the instrument and the intentions of the people. Whereas the only object of the instrument is to express the intentions of the people. That is the only motive that can be attributed to the people, for its adoption. The people established the constitution solely to give written and certain evidence of their intentions. Having their written instrument, we have their own testimony, their own declaration, of what their intentions are. The intentions of the instrument, then, and the intentions of the people, are identical. And it is legally a matter of indifference which form of expression is used; for both legally express the same idea.
But the same class of persons, who assume a distinction between the intentions of the instrument and the intentions of the people, labor to prove, by evidence extraneous to the instrument, that the intentions of the people were different from those the instrument expresses; and then they infer that the instrument must be warped and twisted, and made to correspond to these unexpressed intentions of the people.
The answer to all this chicanery is this. The people, assuming that they have the right to establish their will as law, have, in theory, agreed upon an instrument to express their will, or their intentions. They have thus said that the intentions expressed in that instrument are their intentions. Also that their intentions, as expressed in the instrument, shall be the supreme law of the land.
“The people,” by thus agreeing that the intentions, expressed by their joint instrument, shall be the supreme law of the land, have virtually and legally contracted with each other, that, for the sake of having these, their written intentions, carried into effect, they will severally forego all other intentions, of every name and nature whatsoever, that conflict with the written ones, in which they are all agreed.
Now this written instrument, which is, in theory, the voluntary contract of each and every individual with each and every other, is the highest legal evidence of their intentions. It is the specific evidence that is required of all the parties to it. It is the only evidence that is required, or accepted, of any. It is equally valid and sufficient, in favor of all, and against all. It is the only evidence that is common to all. The intentions it expresses must, therefore, stand as the intentions of all, and be carried into effect as law, in preference to any contrary intentions, that may have been separately, individually, and informally expressed by any one or all the parties on other occasions; else the contract is broken.
As long as the parties acknowledge the instrument as being their contract, they are each and all estopped by it from saying that they have any intentions adverse to it. Its intentions and their intentions are identical, else the parties individually contradict themselves. To acknowledge the contract, and yet disavow its intentions, is perfect self-contradiction.
If the parties wish to repudiate the intentions of the instrument, they must repudiate or abolish the instrument itself. If they wish to change the intentions of the instrument, in any one or more particulars, they must change its language in those particulars, so as to make it express the intentions they desire. But no change can be wrought by exterior evidence; because the written instrument, to which, and to which only, all have, in theory, agreed, must always be the highest evidence that the courts can have of the intentions of the whole people.
If, therefore, the fact were historically well authenticated, that every man in the nation had publicly asserted, within one hour after the adoption of the constitution, (that is, within one hour after he had, in theory, agreed to it,) that he did not agree to it intending that any or all of the principles expressed by the instrument should be established as law, all those assertions would not be of the least legal consequence in the world; and for the very sufficient reason, that what they have said in the instrument is the law; and what they have said out of it is no part of it, and has no legal bearing upon it.
Such assertions, if admitted to be true, would only prove that the parties had lied when they agreed to the instrument; and if they lied then they may be lying now. If we cannot believe their first and formal assertion of their intentions, we cannot believe their second and informal one.
The parties cannot claim that they did not understand the language of the instrument; for if they did not understand the language then, when they agreed to it, how can we know that they understand it now, when they dissent from it? Or how can we know that they so much as understand the very language they are now using in making their denial? or in expressing their contrary intentions?
They cannot claim that they did not understand the rules, by which their language, used in the instrument, would be interpreted; for if they did not understand them then, how can we know that they understand them now? Or how do we know that they understand the rules, by which their present declarations of their intentions will be interpreted?
The consequence is, that every man must be presumed to understand a contract to which he agrees, whether he actually does understand it or not. He must be presumed to understand the meaning of its words; the rules by which its words will be interpreted; and the intentions, which its words, thus interpreted, express. Otherwise men can never make contracts that will be binding upon them; for a man cannot bind himself by a contract which he is not presumed to understand; and it can seldom, or never, be proved whether a man actually does understand his contract, or not. If, therefore, at any time, through ignorance, carelessness, mental reservations, or fraudulent designs, men agree to instruments that express intentions different from their own, they must abide the consequences. The instrument must stand, as expressing their intentions, and their adverse intentions must fail of effect.
Every one, therefore, when he agrees to a contract, judges for himself, and takes his own risk, whether he understands the instrument to which he gives his assent. It is plainly impossible to have constitutions established by contract of the people with each other on any other principle than this; for, on any other principle, it could never be known what the people, as a whole, had agreed to. If every individual, after he had agreed to a constitution, could set up his own intentions, his own understandings of the instrument, or his own mental reservations, in opposition to the intentions expressed by the instrument itself, the constitution would be liable to have as many different meanings as there were different individuals who had agreed to it. And the consequence would be, that it would have no obligation at all, as a mutual and binding contract, for, very likely, no two of the whole would have understood the instrument alike in every particular, and therefore no two would have agreed to the same thing.
Each man, therefore, before he agrees to an instrument, must judge for himself, taking his own risk whether he understands it. After he has agreed to it, he is estopped, by his own instrument, from denying that his intentions were identical with the intentions expressed by the instrument.
The constitution of the United States, therefore, until its language is altered, or the instrument itself abolished, by the people of the United States, must be taken to express the intentions of the whole people of the United States, whether it really do express their intentions or not. It is the highest evidence of their intentions. It is the only evidence which they have all agreed to furnish of their intentions. All other adverse evidence is, therefore, legally worthless and inadmissible. The intentions of the instrument, then, must prevail, as being the intentions of the people, or the constitution itself is at an end.
The second rule of interpretation is, that “the intention of the constitution must be collected from its words.”
This rule is, in reality, nearly synonymous with the preceding one; and its reason, like that of the other, is apparent; for why are words used in writing a law, unless it is to be taken for granted that when written they contain the law? If more was meant, why was not more said? If less was meant, why was so much said? If the contrary was meant, why was this said, instead of the contrary?
To go beyond the words of a law, (including their necessary or reasonable implications,) in any case, is equivalent to saying that the written law is incomplete: that it, in reality, is not a law, but only a part of one; and that the remainder was left to be guessed at, or rather to be made, by the courts.
It is, therefore, a violation of legal rules, to go beyond the words of a law, (including their necessary or reasonable implications,) in any case whatever.
To go contrary to the words of a law, is to abolish the law itself, by declaring its words to be false.
But it happens that the same words have such various and opposite meanings in common use, that there would be no certainty as to the meaning of the laws themselves, unless there were some rules for determining which one of a word’s various meanings was to be attached to it, when the word was found in a particular connection. Hence the necessity of rules of interpretation. Their office is to determine the legal meaning of a word, or, rather, to select the legal meaning of word, out of all the various meanings which the word bears in common use. Unless this selection were made, a word might have two or more different and contradictory meanings in the same place. Thus the law would be mere jargon, instead of being a certain and precise rule of action.
These rules of interpretation have never been specially enacted by statute, or constitutions, for even a statute or constitution enacting them would be unintelligible or uncertain, until interpreted by them. They have, therefore, originated in the necessity of the case; in the inability of words to express single, definite, and clear ideas, such as are indispensable to certainty in the law, unless some one of their several meanings be selected as the legal one.
Men of sense and honesty, who have never heard of these rules as legal ones, but who, nevertheless, assume that written laws and contracts are made for just and reasonable ends, and then judge of their meaning accordingly, unconsciously act upon these rules in so doing. Their perception of the fact, that unless the meaning of words were judged of in this manner, words themselves could not be used for writing laws and contracts, without being liable to be perverted to subserve all manner of injustice, and to defeat the honest intentions of the parties, forces upon them the conviction, that the legal meaning of the words must be such, and only such, as (it will hereafter be seen) these rules place upon them. The rules, then, are but the dictates of common sense and common honesty, applied to determining the meaning of laws and contracts. And common sense and common honesty are all that is necessary to enable one to judge of the necessity and soundness of the rules.
Rules of interpretation, then, are as old as the use of words, in prescribing laws, and making contracts. They are as necessary for defining the words as the words are for describing the laws and contracts. The words would be unavailable for writing laws and contracts, without the aid of the rules for interpreting them. The rules, then, are as much a part of the language of laws and contracts as are the words themselves. Their application to the words of laws and contracts is as much presumed to be understood, by all the parties concerned, as is the meaning of the words themselves. And courts have no more right to depart from, or violate, these rules, than to depart from, or contradict, the words themselves.
The people must always be presumed to understand these rules, and to have framed all their constitutions, contracts, &c., with reference to them, as much as they must be presumed to understand the common meanings of the words they use, and to have framed their constitutions and contracts with reference to them. And why? Because men’s contracts and constitutions would be no contracts at all, unless there were some rules of interpretation understood, or agreed upon, for determining which was the legal meaning of the words employed in forming them. The received rules of interpretation have been acted upon for ages; indeed, they must have been acted upon through all time, since men first attempted to make honest contracts with each other. As no other rules than these received ones can be presumed against the parties, and as these are the only ones that can secure men’s honestrights, under their honest contracts; and, as everybody is bound to know that courts must be governed by fixed rules, applying the same to all contracts whatsoever, it must always be presumed, in each particular case, that the parties intended their instruments should be construed by the same rules by which the courts construe all others.
Another reason why the people must be presumed to know these rules, at least in their application to cases where a question of right and wrong is involved, is, that the rules are but a transcript of a common principle of morality, to wit, the principle which requires us to attribute good motives and good designs to all the words and actions of our fellow-men, that can reasonably bear such a construction. This is a rule by which every man claims that his own words and actions should be judged. It is also a principle of law, as well as of morals, and one, too, of which every man who is tried for an offence claims the benefit. And the law accords it to him. So long as there be so much as “a reasonable doubt” whether his words or actions evince a criminal intent, the law presumes a good intent, and gives him the benefit of it. Why should not the same rule be observed, in inferring the intent of the whole community, from the language of their laws and constitutions, which is observed in inferring the intent of each individual of that community from his language and conduct? It should clearly require as strong proof to convict the whole community of a crime, (and an unjust law or constitution is one of the highest of all possible crimes,) as it does to convict a single individual. The principle, then, is the same in both cases; and the practice of those who infer a bad intent from the language of the constitution, so long as the language itself admits of a reasonable doubt whether such be its intent, goes the length of overthrowing an universally recognized principle of law, on which the security of every accused person is liable to depend.
For these, and perhaps other reasons, the people are presumed to understand the reason and justice of these rules, and therefore, to understand that their contracts will be construed by them. If, therefore, men ever frame constitutions or contracts with the intention that they shall be construed contrarily to these rules, their intention must be defeated; and for the same reason that they would have to be defeated if they had used words in a directly opposite sense to the common ones, such, for example, as using white when they meant black, or black when they meant white.
For the sake of having a case for the rules to apply to, we will take the representative clause, embracing the word “free,” (Art. 1, sec. 2,) which is the first and the strongest of all the clauses in the constitution that have been claimed as recognizing and sanctioning slavery. Indeed, unless this clause do recognize and sanction it, nobody would pretend that either of the other clauses do so. The same rules, if any, that prevent the representative clause and the word “free” from having any legal reference to slavery, will also have the same effect upon the other clauses. If, therefore, the argument for slavery, based upon the word “free,” falls to the ground, the arguments based upon the words “importation of persons,” “service and labor,” &c., must also fall; for they can stand, if at all, only by means of the support they obtain from the argument drawn from the word “free.”
A third rule is, that we are always, if possible, to give a word some meaning appropriate to the subject matter of the instrument itself.
This rule is indispensable, to prevent an instrument from degenerating into absurdity and nonsense.
In conformity with this rule, words which purport to describe certain classes of persons existing under the constitution, must be taken in a sense that will aptly describe such persons as were actually to exist under it, and not in a sense that will only describe those who were to have no existence under it.
It would, for instance, be absurd for the constitution to provide that, in every ten years, there should be “added to the whole number of free persons three fifths of all other persons,” if there were really to be no other persons than the free.
If, therefore, a sense correlative with slavery were given to the word free, it would make the word inappropriate to the subject matter of the constitution, unless there were really to be slaves under the constitution.
It is, therefore, inadmissible to say that the word free is used in the constitution as the correlative of slaves, until it be first proved that there were to be slaves under the constitution.
We must find out what classes of persons were to exist under the constitution, before we can know what classes of persons the terms used in the constitution apply to.
If the word free had but one meaning, we might infer, from the word itself, that such persons as that word would necessarily describe were to exist under the constitution. But since the word has various meanings, we can draw no certain inference from it alone, as to the class of persons to whom it is applied. We must, therefore, fix its meaning in the constitution, by ascertaining, from other parts of the instrument, what kind of “free persons,” and also what kind of “other persons,” were really to exist under the constitution. Until this is done, we cannot know the meaning of the word free, as it is used in the constitution.
Those who say that the word free is used, in the constitution, in a sense correlative with slavery, assume the very point in dispute; viz., that there were to be slaves under the constitution. This is the point to be proved, and cannot be assumed. And until it be proved, it is making nonsense of the constitution, to say that the word free is used as the correlative of slavery.
There is no language in the constitution, that expressly declares, or necessarily implies, that slavery was to exist under the constitution. To say, therefore, that the word free was used as the correlative of slaves, is begging the question that there were to be slaves; it is assuming the whole ground in dispute. Those who argue for slavery, must first prove, by language that can mean nothing less, that slavery was to be permitted under the constitution. Then they may be allowed to infer that the word free is used as its correlative. But until then, a different meaning must be given to the word, else the clause before cited is converted into nonsense.
On the other hand, in giving the word free the sense common at that day, to wit, a sense correlative with persons not naturalized, and not possessed of equal political privileges with others, we assume the existence of no class of persons except those whom the constitution itself especially recognizes, to wit, those possessing full political rights, as citizens, or members of the state, and those unnaturalized persons who will not possess full political rights. The constitution explicitly recognizes these two classes, because it makes a distinction between them in the matter of eligibility to certain offices, and it also explicitly authorizes Congress to pass laws for the naturalization of those who do not possess full rights as citizens.
If, then, we take the word free in the sense correlative with unnaturalized persons, the word has a meaning that is already appropriate to the subject matter of the instrument, and requires no illegal assumptions to make it so.
On the other hand, if we use the word in the sense correlative with slaves, we either make nonsense of the language of the constitution, or else we assume the very point in dispute, viz., that there were to be slaves under the constitution; neither of which have we any right to do.
This argument is sufficient, of itself, to overthrow all the arguments that were ever made in favor of the constitutionality of slavery.
Substantially the whole argument of the advocates of slavery is founded on the assumption of the very fact in dispute, viz., that there was to be slavery under the constitution. Not being able to prove, by the words of the constitution, that there was to be any slavery under it, they assume that there was to be slavery, and then use that assumption to prove the meaning of the constitution itself. In other words, not being able to prove slavery by the constitution, they attempt to prove the meaning of the constitution by slavery. Their whole reasoning on this point is fallacious, simply because the legality of slavery, under the constitution, is itself a thing to be proved, and cannot be assumed.
The advocates of slavery cannot avoid this dilemma, by saying that slavery existed at the time the constitution was adopted; for many things existed at the time, such as theft, robbery, piracy, &c., which were not therefore to be legalized by the constitution. And slavery had no better constitutional or legal existence than either of these crimes.
Besides, even if slavery had been legalized (as it was not) by any of the then existing state constitutions, its case would have been no better; for the United States constitution was to be the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. The constitution being the supreme law, operating directly upon the people, and securing to them certain rights, it necessarily annulled everything that might be found in the state constitutions that was inconsistent with the freedom of the people to enjoy those rights. It of course would have annulled the legality of slavery, if slavery had then had any legal existence; because a slave cannot enjoy the rights secured by the United States constitution.
Further. The constitution is a political instrument, treating of men’s political rights and privileges. Its terms must therefore be taken in their political sense, in order to be appropriate to the subject matter of the instrument. The word free, in its political sense, appropriately describes men’s political rank as free and equal members of the state, entitled, of right, to the protection of the laws. On the other hand, the word free, in the sense correlative with slavery, has no appropriateness to the subject matter of such an instrument—and why? Because slavery is not, of itself, a political relation, or a political institution; although political institutions may, and sometimes do, recognize and legalize it. But, of itself, it is a merely private relation between one man and another, created by individual force, and not by political authority. Thus a strong man beats a weaker one, until the latter will obey him. This is slavery, and the whole of it; unless it be specially legalized. The United States constitution does not specially legalize it; and therefore slavery is no part of the subject matter of that instrument. The word free, therefore, in the constitution, cannot be said to be used as the correlative of slavery; because that sense would be entirely inappropriate to anything that is the subject matter of the instrument. It would be a sense which no other part of the constitution gives any occasion or authority for.
A fourth rule is, that where technical words are used, a technical meaning is to be attributed to them.
This rule is commonly laid down in the above general terms. It is, however, subject to these exceptions, viz., that where the technical sense would be inconsistent with, or less favorable to, justice, or not consonant to the context, or not appropriate to the nature of the subject, some other meaning may be adopted. Subject to these exceptions, the rule is of great authority, for reasons that will hereafter appear.
Thus, in commercial contracts, the terms and phrases used in them are to be taken in the technical or professional sense common among merchants, if that sense be consonant to the context, and appropriate to the nature of the contracts.
In political contracts, the terms and phrases used in them are to be taken in the political and technical sense common in such instruments, if that sense be consonant to the context, and appropriate to the subject matter of the contracts.
Terms common and proper to express political rights, relations, and duties, are of course to be taken in the technical sense natural and appropriate to those rights, relations, and duties.
Thus, in political papers, such terms as liberty, allegiance, representation, citizenship, citizens, denizens, freemen, free subjects, free-born subjects, inhabitants, residents, people, aliens, allies, enemies, are all to be understood in the technical sense appropriate to the subject matter of the instrument, unless there be something else, in the instrument itself, that shows that some other meaning is intended.
Terms which, by common usage, are properly descriptive of the parties to, or members of, the compact, as distinguished from others, are to be taken in the technical sense, which describes them, as distinguished from others, unless there be, in the instrument itself, some unequivocal evidence that they are to be taken in a different sense.
The authority of this rule is so well founded in nature, reason, and usage, that it is almost strange that it should be questioned. It is a rule which everybody, by their common practice, admit to be correct; for everybody more naturally understands a word in its technical sense than in any other, unless that sense be inconsistent with the context.
Nevertheless, an attempt has been made by some persons to deny the rule, and to lay down a contrary one, to wit, that where a word has what they choose to call a common or popular meaning, and also a technical one, the former is to be preferred, unless there be something, in other parts of the instrument, that indicates that the technical one should be adopted.
The argument for slavery virtually claims, not only that this so called common and popular meaning of a word, (and especially of the word “free,”) is to be preferred to the technical one, but also that this simple preference is of sufficient consequence to outweigh all considerations of justice and injustice, and indeed all, or nearly all, the other considerations on which legal rules of interpretation are founded. Nevertheless I am not aware that the advocates of slavery have ever had the good fortune to find a single instance where a court has laid it down, as a rule, that any other meaning is, of itself, preferable to the technical one; much less that that preference was sufficient, in cases where right and wrong were involved, to turn the scale in favor of the wrong. And if a court were to lay down such a rule, every one is at liberty to judge for himself of its soundness.
But inasmuch as this pretended rule is one of the main pillars, if not the main pillar, in support of the constitutionality of slavery, it is entitled to particular consideration.
The falsehood of this pretended rule will be evident when it is considered that it assumes that the technical meaning of a word is not the common and popular one; whereas it is the very commonness, approaching to uniformity, with which a word is used in a particular sense, in relation to particular things, that makes it technical.
A technical word is a word, which in one profession, art, or trade, or in reference to particular subjects, is generally, or uniformly, used in a particular sense, and that sense a somewhat different one from those in which it is generally used out of that profession, art, or trade, or in reference to other subjects.
There probably is not a trade that has not its technical words. Even the cobbler has his. His ends are generally quite different things from the ends of other people. If we hear a cobbler speak of his ends, we naturally suppose he means the ends of his threads, because he has such frequent occasion to speak of and use them. If we hear other people speak of their ends, we naturally suppose that they mean the objects they have in view. With the cobbler, then, ends is a technical word, because he frequently or generally uses the word in a different sense from that in which it is used by other people.
Mechanics have very many technical words, as, for instance, to describe particular machines, parts of machines, particular processes of labor, and particular articles of manufacture. And when we hear a mechanic use one of these words, we naturally suppose that he uses it in a technical sense—that is, with reference to his particular employment, machinery, or production. And why do we suppose this? Simply because it is more common for him to use the word in that sense than in any other, especially if he is talking of anything in regard to which that sense would be appropriate. If, however, his talk is about some other subject, in relation to which the technical sense of the word would not be appropriate, then we conclude that he uses it, not in the technical sense appropriate to his art, but in some other sense more appropriate to the subject on which he is speaking.
So, if we were to hear a banker speak of “the days of grace having expired,” we should naturally attach a very different meaning to the words from what we should if we were to hear them from the pulpit. We should suppose, of course, that he used them in the technical sense appropriate to his business, and that he had reference only to a promissory note that had not been paid when due.
If we were to hear a banker speak of a check, we should suppose he used the word in a technical sense, and intended only an order for money, and not a stop, hindrance, or restraint.
So, if one farmer were to say of another, He is a good husband, we should naturally infer that he used the word husband in the technical sense appropriate to his occupation, meaning that he cultivated and managed his farm judiciously. On the other hand, if we were to hear lawyers, legislators, or judges, talking of husbands, we should infer that the word was used only in reference to men’s legal relations to their wives. The word would be used in a technical sense in both cases.
So, if we were to hear a man called a Catholic priest, we should naturally infer that the word Catholic was used in its technical sense, that is, to describe a priest of the Catholic persuasion, and not a priest of a catholic, liberal, and tolerant spirit.
These examples might be multiplied indefinitely. But it will be seen from those already given that, so far from the technical sense and the common sense of words being opposed to each other, the technical sense is itself the common sense in which a word is used with reference to particular subjects.
These examples also show how perfectly natural, instead of unnatural, it is for us to attribute the technical meaning to a word, whenever we are talking of a subject in relation to which that meaning is appropriate.
Almost every word of substantive importance, that is of frequent use in the law, is used in a technical sense—that is, in a sense having some special relation either to natural justice, or to men’s rights or privileges under the laws.
The word liberty, for instance, has a technical meaning in the law. It means, not freedom from all restraint, or obligation; not a liberty to trespass with impunity upon other men’s rights; but only that degree of liberty which, of natural right, belongs to a man; in other words, the greatest degree of liberty that he can exercise, without invading or immediately endangering the rights of others.
Unless nearly all words had a technical meaning in the law, it would be impossible to describe laws by words; because words have a great variety of meanings in common use; whereas the law demands certainty and precision. We must know the precise meaning of a word, before we can know what the law is. And the technical meaning of a word is nothing more than a precise meaning, that is appropriate, and commonly applied, to a particular subject, or class of subjects.
How would it be possible, for instance, to have laws against murder, unless the word murder, or some other word, were understood, in a technical sense, to describe that particular mode of killing which the law wishes to prohibit, and which is morally and legally distinguishable from all other modes of killing?
So indispensable are precision and certainty, as to the meaning of words used in laws, that where a word has not a technical meaning already known, the legislature frequently define the meaning they intend it shall bear in particular laws. Where this is not done, the courts have to give it a precise and definite meaning, before the law can be administered; and this precise meaning they have to conjecture, by reference to the context, and to the presumed object of all laws, justice.
What perfect chaos would be introduced into all our existing laws and contracts, if the technical meanings of all the words used in them were obliterated from our minds. A very large portion of the laws and contracts themselves would be substantially abolished, because all certainty as to their meaning would be extinguished. Suppose, for instance, the technical meanings of liberty, trial by jury, habeas corpus, grand jury, petit jury, murder, rape arson, theft, indictment, trial, oath, testimony, witness, court, verdict, judgment, execution, debt, dollar, bushel, yard, foot, cord, acre, rod, pound, check, draft, order, administrator, executor, guardian, apprentice, copartner, company, husband, wife, marriage, lands, goods, real estate, personal estate, highway, citizen, alien, subject, and an almost indefinite number of other words, as they now stand in our laws and contracts, were at once erased from our minds, and the legal meanings of the same words could only be conjectured by the courts and people from the context, and such other circumstances as might afford grounds for conjecture. Suppose all this, and where would be our existing laws and contracts, and the rights dependent upon them? We might nearly as well throw our statute-books, and all our deeds, notes, and other contracts, into the fire, as to strike out the technical meanings of the words in which they are written. Yet for the courts to disregard these technical meanings, is the same thing as to strike them out of existence.
If all our constitutions, state and national, were to be annulled at a blow, with all the statutes passed in pursuance of them, it would hardly create greater confusion as to men’s rights, than would be created by striking out from men’s minds all knowledge of the technical meanings of the words now used in writing laws and contracts. And the reconstruction of the governments, after such an abolition of them, would be a much less labor than the reconstruction of a legal language, in which laws and contracts could be written with the same conciseness and certainty as now. The former would be the work of years, the latter of centuries.
The foregoing considerations show in what ignorance and folly are founded the objections to the technical meanings of words used in the laws.
The real difference between the technical meaning of a word, and any other meaning, is just the difference between a meaning that is common, certain, and precise, and one that is, at best, less common, less certain, and less precise, and perhaps neither common, certain, nor precise.
The authorities in favor of the technical meaning, are given in the note, and are worthy of particular attention.
The argument, and the whole argument, so far as I know, in favor of what is called the common or popular meaning, is, that that meaning is supposed to be better known by the people, and therefore it is more probable they would use it, than the other.
But this argument, if not wholly false, is very shallow and frivolous; for everybody is presumed to know the laws, and therefore they are presumed to be familiar with the technical meanings of all the technical words that are of frequent use in writing the laws. And this presumption of law corresponds with the general fact. The mass of the people, who are not learned in the law, but who nevertheless have general ideas of legal matters, naturally understand the words of the laws in their legal senses, and attach their legal senses to them without being aware that the legal sense is a technical one. They have been in the habit of thinking that the technical meaning of words was something dark and recondite, (simply because some few technical terms are in another language than the English,) when in reality they themselves are continually using a great variety of words, indeed, almost all important words, in a technical or legal sense, whenever they are talking of legal matters.
But whether the advocates of slavery can, or cannot, reconcile themselves to the technical meaning of the word “free,” they cannot, on their own construction of the constitution, avoid giving the word a precise and technical sense, to wit, as the correlative of slavery, as distinguished from all other forms of restraint and servitude.
The word slaves, if it had been used in the constitution, (instead of the words “all other persons,”) would have itself been held to be used in a technical sense, to wit, to designate those persons who were held as chattels, as distinguished from serfs, villeins, apprentices, servants for years, persons under twenty-one years of age, prisoners of war, prisoners for debt, prisoners for crime, soldiers, sailors, &c., &c. The word slaves, then, being technical, the word free must necessarily have been taken in a technical sense, to wit, as the precise correlative of chattel slaves, and not as the correlative of persons held under any of these other forms of restraint or servitude. So that on the score of technicality, (even if that were an objection,) nothing would be gained by adopting the sense correlative with slaves.
But it is a wholly erroneous assumption that the use of the word “free,” in a sense correlative with slaves, was either a common or popular use of the word. It was neither common nor popular, if we may judge of that time by the present; for now such a use of it is seldom or never heard, unless made with special reference to the classification which it is assumed that the constitution has established on that point.
The common and popular classification of the people of this country, with reference to slavery, is by the terms, white, free colored, and slaves. We do not describe anybody as free, except the free colored. The term white carries with it the idea of liberty; and it is nearly or quite universally used in describing the white people of the South, as distinguished from the slaves.
But it will be said by the advocates of slavery, that the term white was not used in the constitution, because it would not include all the free; that the term free was used in order to include both white and free colored. But this assertion is but another wholly gratuitous assumption of the facts, that there were to be slaves under the constitution, and that representation and taxation were to be based on the distinction between the slaves and the free; both of which points are to be proved, not assumed.
If there were to be slaves under the constitution, and if representation and taxation were to be based upon the distinction between the slaves and the free, then the constitution undoubtedly used the word free, instead of white, in order to include both the white and free colored in the class of units. But if, as we are bound to presume until the contrary is proved, there were to be no slaves under the constitution, or if representation and taxation were not founded on the distinction between them and the free, then the constitution did not use the word free for such a purpose. The burden is upon the advocates of slavery to prove, first, that there were to be slaves under the constitution, and, secondly, that representation and taxation were to be based on the distinction between them and the free, before they can say that the word free was used for the purpose of including the white and free colored.
Now the whole argument, or rather assertion, which the advocates of slavery can offer in support of these points, which they are necessitated to prove, is, that the word free is commonly and popularly used as the correlative of slaves. That argument, or assertion, is answered by the fact that the word free is not commonly or popularly used as the correlative of slaves; that the terms white and free colored are the common terms of distinction between the free and the slaves. Now these last named facts, and the argument resulting from them, are not met at all, by saying that if there were to be slaves, and if representation and taxation were to be based on the distinction between them and the free, the word free would then have been used, in preference to any other, in order to include the free colored in the same class with the whites.
It must first be proved that there were to be slaves under the constitution, and that representation and taxation were to be based on the distinction between them and the free, before it can be said that the word free was used in order to include both white and free colored. Those points not being proved, the allegation, founded on the assumption of them, is good for nothing.
The use of the word free, then, in a sense correlative with slavery, not being the common and popular use of the word at the time the constitution was adopted, all the argument, founded on that assumption, falls to the ground.
On the other hand, the use of the word free, in a political sense, as correlative either with aliens, or with persons not possessed of equal political privileges with others, was the universal meaning of the word, in all documents of a fundamental and constitutional character, up to the time when the constitution of the United States was adopted—(that is, when it was used, as it is in the United States constitution, to describe one person, as distinguished from another living under the same government.) Such was the meaning of the word in the colonial charters, in several of the State constitutions existing in 1789, and in the articles of confederation Furthermore, it was a term that had very recently been in common use in political discussions, and had thus been made perfectly familiar to the people. For example, the discussions immediately preceding the revolution, had all, or nearly all, turned upon the rights of the colonists, as “free British subjects.” In fact, the political meaning of the word free was probably as familiar to the people of that day as the meaning of the word citizen is now; perhaps, indeed, more so, for there is some controversy as to the legal meaning of the word citizen. So that all the argument against the technical sense of the term, on the ground of its not being the common sense, is founded in sheer ignorance or fraud.
Finally; unless the word free be taken in the technical sense common at that day, it is wholly an unsettled matter what sense should be given to it, in the constitution. The advocates of slavery take it for granted that, if it be not taken in its common and technical sense, it must be taken in the sense correlative with slavery. But that is all gratuitous. There are many kinds of freedom besides freedom from chattel slavery; and many kinds of restraint besides chattel slavery; restraints, too, more legitimate in their nature, and better legitimated under the laws then existing, than slavery. And it may require a great deal more argument than some persons imagine, to settle the meaning of the word free, as used in the constitution, if its technical meaning be discarded.
I repeat, it is a wholly gratuitous assumption that, if the technical meaning of the word free be discarded, the sense correlative with slavery must be adopted. The word “free,” in its common and popular sense, does not at all imply, as its correlative, either property in man, or even involuntary service or labor. It, therefore, does not imply slavery. It implies, as its correlative, simply restraint. It is, of itself, wholly indefinite as to the kind of restraint implied. It is used as the correlative of all kinds of restraint, imprisonment, compulsion, and disability, to which mankind are liable. Nothing, therefore, can be inferred from the word alone, as to the particular kind of restraint implied, in any case. It is indispensable to know the subject matter, about which the word is used, in order to know the kind of restraint implied. And if the word had had no technical meaning appropriate to the subject matter of the constitution, and if no other part of the constitution had given us any light as to the sense of the word in the representative clause, we should have been obliged to conjecture its correlative. And slavery is one of the last correlatives that we should have been at liberty to adopt. In fact, we should have been obliged to let the implication remain inoperative for ambiguity, and to have counted all men as “free,” (for reasons given under rule seventh,) rather than have adopted slavery as its correlative.
A fifth rule of interpretation is, that the sense of every word, that is ambiguous in itself, must, if possible, be determined by reference to the rest of the instrument.
The importance of this rule will be seen, when it is considered that the only alternatives to it are, that we must go out of the instrument, and resort to conjecture, for the meaning of ambiguous words.
The rule is an universal one among courts, and the reasons of it are as follows:—
Vattel says, “If he who has expressed himself in an obscure or equivocal manner, has spoken elsewhere more clearly on the same subject, he is the best interpreter of himself. We ought to interpret his obscure and vague expressions, in such a manner, that they may agree with those terms that are clear and without ambiguity, which he has used elsewhere, either in the same treaty, or in some other of the like kind. In fact, while we have no proof that a man has changed his mind, or manner of thinking, it is presumed that his thoughts have been the same on the same occasions; so that if he has anywhere clearly shown his intention, with respect to anything, we ought to give the same sense to what he has elsewhere said obscurely on the same affair.”
—B. 2, ch. 17, sec. 284.
Also; “Frequently, in order to abridge, people express imperfectly, and with some obscurity, what they suppose is sufficiently elucidated by the things that preceded it, or even what they propose to explain afterwards; and, besides, the expressions have a force, and sometimes even an entirely different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is also another source of interpretation. We ought to consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signification it may receive initself, as that it ought to have from the thread and spirit of the discourse. This is the maxim of the Roman law: Incivile est, nist tota lege perspecta una aliqua particula ejus proposita, judicare, vel respondere.” (It is improper to judge of, or answer to, any one thing proposed in a law, unless the whole law be thoroughly examined.)
—Same, sec. 285.
Also; “The connection and relation of things themselves, serve also to discover and establish the true sense of a treaty, or of any other piece. The interpretation ought to be made in such a manner, that all the parts appear consonant to each other; that what follows agree with what went before; at least, if it does not manifestly appear, that by the last clauses, something is changed that went before. For it is presumed that the authors of the treaty have had an uniform and steady train of thought; that they did not desire things which ill agreed with each other, or contradictions; but rather that they have intended to explain one thing by another; and, in a word, that one and the same spirit reigns throughout the same work, or the same treaty.”
—Same, sec. 286.
The Sup. Court of Mass. says, “When the meaning of any particular section or clause of a statute is questioned, it is proper to look into the other parts of the statute; otherwise, the different sections of the same statute might be so construed as to be repugnant.”
—1 Pickering, 250.
Coke says, “It is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute.”
—Co. Lit., 381, b.
The foregoing citations indicate the absolute necessity of the rule, to preserve any kind of coherence or congruity between the different parts of an instrument.
If we were to go out of an instrument, instead of going to other parts of it, to find the meaning of every ambiguous word, we should be liable to involve the whole instrument in all manner of incongruities, contradictions, and absurdities. There are hardly three consecutive lines, of any legal instrument whatever, the sense of which can be understood without reference to other parts of the instrument.
To go out of an instrument, instead of going to other parts of it, to find the sense of an ambiguous word, is also equivalent to saying that the instrument itself is incomplete.
Apply this rule, then, to the word “free,” and the words “all other persons.” The sense of these words being ambiguous in themselves, the rest of the instrument must be examined to find the persons who may properly be denominated “free persons,” and “all other persons.” In making this examination, we shall find no classes mentioned answering to these descriptions, but the native and naturalized persons on the one hand, and those not naturalized on the other.
A sixth rule of interpretation, and a very important, inflexible, and universal one, applicable to contracts, is, that a contract must never, if it be possible to avoid it, be so construed, as that any one of the parties to it, assuming him to understand his rights, and to be of competent mental capacity to make obligatory contracts, may not reasonably be presumed to have consented to it.
If, for instance, two men were to form a copartnership in business, their contract, if its language will admit of any other possible construction, must not be so construed as to make it an agreement that one of the partners shall be the slave of the other; because such a contract would be unnatural, unreasonable, and would imply that the party who agreed to be a slave was incompetent to make a reasonable, and therefore obligatory, contract.
This principle applies to the constitution of the United States, and to all other constitutions that purport to be established by “the people;” for such constitutions are, in theory, but contracts of the people with each other, entered into by them severally for their individual security and benefit. It also applies equally to all statutes made in pursuance of such constitutions, because the statutes derive their authority from the constitutional consent or contract of the people that such statutes may be enacted and enforced. The authority of the statutes, therefore, as much rests on contract, as does the authority of the constitutions themselves. To deny that constitutions and statutes derive their authority from contract, is to found the government on arbitrary power.
By the rule laid down, these statutes and constitutions, therefore, must not be construed, (unless such construction be unavoidable,) so as to authorize anything whatever to which every single individual of “the people” may not, as competent men, knowing their rights, reasonably be presumed to have freely and voluntarily assented.
Now the parties to the contract expressed in the constitution of the United States, are “the people of the United States,” that is, the whole people of the United States. The description given of the parties to the constitution, as much includes those “people of the United States” who were at the time treated as slaves, as those who were not. The adoption of the constitution was not, in theory, the exercise of a right granted to the people by the State legislatures, but of the natural original right of the people themselves, as individuals. (This is the doctrine of the supreme court, as will presently appear.) The slaves had the same natural competency and right to establish, or consent to, government, that others had; and they must be presumed to have consented to it equally with others, if the language of the constitution implies it. We certainly cannot go out of the constitution to find the parties to it. And the constitution affords no legal ground whatever for separating the then “people of the United States” into two classes, and saying that one class were parties to the constitutional contract, and that the other class were not. There would be just as much reason in saying that the terms “the people” used in the constitutions of Massachusetts, Maine, New Hampshire, and Vermont, to describe the parties to those constitutions, do not include all “the people” of those States, as there is for saying that all “the people of the United States” are not included in the constitutional description of them, and are not, therefore, parties to the constitution of the United States.
We are obliged to take this term, “the people,” in its broadest sense, unless the instrument itself have clearly and palpably imposed some restriction upon it.
It is a universal rule of courts, that where justice will be promoted by taking a word in the most comprehensive sense in which it can be taken consistently with the rest of the instrument, it must be taken in that sense, in order that as much justice as possible may be accomplished. On the other hand, where a word is unfavorable to justice, it must be taken in its most restricted sense, in order that as little injustice as possible may be accomplished.
In conformity with this rule, the words, “the people of the United States,” would have to be taken in their most extensive sense, even though they stood but on an equal ground with other words in the instrument. But, in fact, they stand on privileged ground. Their meaning is to be determined before we proceed to the interpretation of the rest of the instrument. The first thing to be ascertained, in regard to an instrument, always is, who are the parties to it; for upon that fact may depend very many important things in the construction of the rest of the instrument. In short, the body of the instrument is to be interpreted with reference to the parties, and not the parties conjectured by reference to the body of the instrument. We must first take the instrument’s own declaration as to who the parties are; and then, if possible, make the body of the instrument express such, and only such, intentions, as all the parties named may reasonably be presumed to have agreed to.
Assuming, then, that all “the people of the United States” are parties to the constitutional contract, it is manifest, that it cannot reasonably be presumed that any, even the smallest, portion of them, knowing their natural rights, and being competent to make a reasonable contract of government, would consent to a constitution that should either make them slaves, or assist in keeping them in slavery. Such a construction, therefore, must not be put upon the contract, if the language admits of any other. This rule alone, then, is sufficient to forbid a construction sanctioning slavery.
It may, perhaps, be argued that the slaves were not parties to the constitution, inasmuch as they never, in fact, consented to it. But this reasoning would disfranchise half the population; for there is not a single constitution in the country—state, or national—to which one half of the people who are, in theory, parties to it, ever, in fact and in form, agreed. Voting for and under a constitution, are almost the only acts that can, with any reason at all, be considered a formal assent to a constitution. Yet a bare majority of the adult males, or about one tenth of the whole people, is the largest number of “the people” that has ever been considered necessary, in this country, to establish a constitution. And after it is established, only about one fifth of the people are allowed to vote under it, even where suffrage is most extended. So that no formal assent to a constitution is ever given by the people at large. Yet the constitutions themselves assume, and virtually assert, that all “the people” have agreed to them. They must, therefore, be construed on the theory that all have agreed to them, else the instruments themselves are at once denied, and, of course, invalidated altogether. No one, then, who upholds the validity of the constitution, can deny its own assertion, that all “the people” are parties to it. Besides, no one, unless it be the particular individuals who have not consented, can take advantage of the fact that they have not consented.
And, in practice, we do not allow even such individuals to take advantage of the fact of their non-consent, to avoid the burdens imposed by the instrument; and not allowing the individuals themselves to take advantage of it for that purpose, no other person, certainly, can be allowed to take advantage of it to shut them out from its protection and benefits.
The consent, then, of “the people” at large is presumed, whether they ever have really consented, or not. Their consent is presumed only on the assumption that the rights of citizenship are valuable and beneficial to them, and that if they understood that fact, they would willingly give their consent in form. Now, the slaves, if they understood that the legal effect of their consenting to the constitution would be “to secure the blessings of liberty to themselves and their posterity,” would doubtless all be as ready to give their actual assent to it, as any other portion of “the people” can be. Inasmuch, then, as such would be the legal effect of their consent, there is no other class of “the people of the United States,” whose consent to the constitution may, with so much reason, be presumed; because no other class have so much to gain by consenting to it. And since the consent of all is presumed, solely on the ground that the instrument is beneficial to them, regardless of their actual assent, there is no ground for excluding, or for not presuming, the consent of those, whose consent, on account of its beneficial operation upon their interests and rights, can be most reasonably and safely presumed.
But it may, perhaps, be said that it cannot reasonably be presumed that the slaveholders would agree to a constitution, which would destroy their right to their slave property.
One answer to this argument is, that the slaveholders had, at the time, no legal or constitutional right to their slaves, under their State constitutions, as has already been proved; and they must be presumed to have known that such was the fact, for every one is presumed to know the law.
A second answer is, that it is, in law, considered reasonable—as it is, in fact, one of the highest evidences of reason—for a man voluntarily to do justice, against his apparent pecuniary interests.
Is a man considered non compos mentis for restoring stolen property to its rightful owner, when he might have retained it with impunity? Or are all the men, who have voluntarily emancipated their slaves, presumed to have been fools? incompetent to make reasonable contracts? or even to have had less reason than those who refuse to emancipate? Yet this is the whole argument of those, who say that it cannot be supposed that the slaveholders would agree to a free constitution. The argument would have been good for nothing, even if the then existing State constitutions had authorized slavery.
There would be just as much reason in saying that it cannot be supposed that thieves, robbers, pirates, or criminals of any kind, would consent to the establishment of governments that should have authority to suppress their business, as there is in saying that slaveholders cannot be supposed to consent to a government that should have power to suppress slaveholding. If this argument were good for anything, we should have to apply it to the state constitutions, and construe them, if possible, so as to sanction all kinds of crimes which men commit, on the ground that the criminals themselves could not be supposed to have consented to any government that did not sanction them.
The truth is, that however great a criminal a man may have been, it is considered a very reasonable act for him to agree to do justice in future; and therefore, when communities establish governments for the purpose of maintaining justice and right, the assent of all the thieves, robbers, pirates, and slaveholders, is as much presumed, as is the assent of the most honest portion of community. Governments for the maintenance of justice and liberty could not be established by the consent of the whole people on any other ground.
It would be a delectable doctrine, indeed, for courts to act upon, in construing a constitution, to presume that it was intended to subserve the criminal purposes of a few of the greatest villains in community; and then to force all its honest words to yield to that presumption, on the ground that otherwise these villains could not be presumed to have agreed to it. Yet this is the doctrine practised upon by all who uphold the constitutionality of slavery. They know that the whole people, honest and dishonest, slaveholders and non-slaveholders alike, must be presumed to have agreed either to an honest or a dishonest constitution; and they think it more reasonable to presume that all the honest people agreed to turn knaves, than that all the knaves agreed to become honest. This presumption is the polar star of all their reasonings in favor of the constitutionality of slavery. If this presumption be a true guide in the interpretation of all other constitutions, laws, and contracts, it is, of course, a correct one for interpreting the constitution of the United States; otherwise not.
The doctrine, that an instrument, capable of an honest meaning, is to be construed into a dishonest one, merely because one in forty of the parties to it has been a dishonest man up to the time of making the agreement, (and probably not more than one in forty of “the people of the United States” were slaveholders,) would not only put it nearly or quite out of the power of dishonest men to make contracts with each other that would be held honest in the sight of the law, but it would even put it nearly or quite out of the power of honest men to make contracts with dishonest ones, that would be held honest in the sight of the law. All their contracts, susceptible of a dishonest meaning, would have to be so construed; and what contract is ever entered into by honest with dishonest men, that is not susceptible of such a construction, especially if we may go out of the contract, and inquire into the habits, character, and business of each of the parties, in order to find that one of them is a man who may be suspected of a dishonest motive, and this suspected motive of the one may then be attributed to the others as their true motive.
Such a principle of law would virtually cut off dishonest men from all right to make even honest contracts with their fellowmen, and would be a far greater calamity to themselves than the doctrine that holds all their contracts to be honest, that are susceptible of an honest construction; because it is indispensable to a dishonest man’s success and well-being in life that a large portion of his contracts should be held honest and valid.
Under a principle of law, that presumes everybody dishonest, and construes their constitutions, laws, and contracts accordingly, pandemonium would be established at once, in which dishonest men would stand no better chance than others; and would therefore have no more motive than others for sustaining the government.
In short, it is obvious that government would not, and could not, be upheld for an instant, by any portion of society, honest or dishonest, if such a presumption were to be adopted by the courts as a general rule for construing either constitutions, laws, or private contracts. Yet, let it be repeated, and never forgotten, that this presumption is indispensable to such a construction of the constitution as makes slavery constitutional. It is the sine qua non to the whole fabric of the slaveholding argument.
There is, then, no legal ground whatever for not presuming the consent of slaves, slaveholders, and non-slaveholders to the constitution of the United States, on the supposition that it prohibits slavery. Consequently, there is no legal ground for denying that the terms “the people of the United States,” included the whols of the then people of the United States. And if the whole of the people are parties to it, it must, if possible, be so construed as to make it such a contract as each and every individual might reasonably agree to. In short, it must, if possible, be so construed as not to make any of the parties consent to their own enslavement. Such a construction is possible, and being possible, is necessarily the true construction.
The constitution of the United States, therefore, would have abolished slavery, by making the slaves parties to it, even though the state constitutions had previously supported it.
The seventh rule of interpretation is the one that has been repeatedly cited from the supreme court of the United States, to wit:
“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”
The pith of this rule is, that any unjust intention must be “expressed with irresistible clearness,” to induce a court to give a law an unjust meaning.
The word “expressed” is a very important one, in this rule. It is necessary, therefore, for the benefit of the unprofessional reader, to define it.
In law, a thing is said to be “expressed,” only when it is uttered, or written out, embodied in distinct words, in contradistinction to its being inferred, implied, or gathered from evidence exterior to the words of the law.
The amount of the rule, then, is, that the court will never, through inference, nor implication, attribute an unjust intention to a law; nor seek for such an intention in any evidence exterior to the words of the law. They will attribute such an intention to the law, only when such intention is written out in actual terms; and in terms, too, of “irresistible clearness.”
The rule, it will be observed, does not forbid a resort to inference, implication, or exterior evidence, to help out the supposed meaning of, or to solve any ambiguities in, a law that is consistent with justice. It only forbids a resort to such means to help out the supposed meaning of, or to solve any ambiguities in, an unjust law. It virtually says that if an ambiguous law can possibly be interpreted favorably to justice, it shall be thus interpreted. But if it cannot be thus interpreted, it shall be suffered to remain inoperative—void for its ambiguity—rather than the court will help out its supposed meaning by inference, implication, or exterior evidence.
Is this rule a sound one? It is; and for the following reasons:
Certainty is one of the vital principles of law. Properly speaking, nothing is law that is uncertain. A written law is only what is written. It is not certain, any further than it is written. If, then, we go out of the written law, we necessarily go into the region of uncertainty. It must, also, generally be presumed, that the legislature intend nothing more than they have chosen to communicate. It is therefore straining matters, and going beyond strict legal principles, to go out of the words of a law, to find its meaning, in any case whatever, whether for a good purpose, or a bad one.
It will be asked, then, “Why resort to inference, implication, and exterior evidence, to solve the ambiguities in a just law?” The answer is this: Such is the variety of senses in which language is used by different persons, and such the want of skill in many of those who use it, that laws are very frequently left in some ambiguity. Men, nevertheless, act upon them, assuming to understand them. Their rights thus become involved in the efficacy of the law, and will be sacrificed unless the law be carried into effect. To save these rights, and for no other purpose, the courts will venture to seek the meaning of the law in exterior evidence, when the intent of the law is good, and the apparent ambiguity not great. Strictly speaking, however, even this proceeding is illegal. Nothing but the necessity of saving men’s rights, affords any justification for it. But where a law is ambiguous and unjust, there is no such necessity for going out of its words to settle its probable meaning, because men’s rights will not be saved, but only sacrificed, by having its uncertainty settled, and the law executed. It is, therefore, better that the law should perish, be suffered to remain inoperative for its uncertainty, than that its uncertainty should be removed, (or, rather, attempted to be removed, for it cannot be removed absolutely, by exterior evidence,) and the law carried into effect for the destruction of men’s rights.
Assuming, then, the rule of the court to be sound, are the rules laid down in the “Unconstitutionality of Slavery,” that have since been somewhat questioned, embraced in it? Those rules are as follows:
1. “One of them is, that where words are susceptible of two meanings, one consistent, and the other inconsistent, with justice and natural right, that meaning, and only that meaning, which is consistent with right, shall be attributed to them, unless other parts of the instrument overrule that interpretation.”
This rule is clearly embraced in the rule of the court; for the rule of the court requires the unjust meaning to be “expressed with irresistible clearness,” before it can be adopted; and an unjust meaning certainly cannot be said to be “expressed with irresistible clearness,” when it is expressed only by words, which, consistently with the laws of language, and the rest of the instrument, are susceptible of an entirely different—that is, a perfectly innocent—meaning.
2. “Another rule, (if, indeed, it be not the same,) is, that no language except that which is peremptory, and no implication, except one that is inevitable, shall be held to authorize or sanction anything contrary to natural right.”
This rule is also clearly embraced in the rule of the court; for the rule of the court requires that the unjust intention be “expressed,” that is, uttered, written out in terms, as distinguished from being inferred, or implied. The requirement, also, that it be “expressed with irresistible clearness,” is equivalent to the requirement that the language be “peremptory.”
3. “Another rule is, that no extraneous or historical evidence shall be admitted to fix upon a statute an unjust or immoral meaning, when the words themselves of the act are susceptible of an innocent one.”
This rule is also clearly embraced in the rule of the court; for the rule of the court requires, not only that the unjust intention be “expressed,” written out, embodied in words, as distinct from being inferred, implied, or sought in exterior historical evidence, but also that it be embodied in words of “irresistible clearness.” Now, words that express their intention with “irresistible clearness,” can of course leave no necessity for going out of the words, to “extraneous or historical evidence,” to find their intention.
But it is said that these rules are in conflict with the general rule, that where a law is ambiguous, the probable intent of the legislature may be ascertained by extraneous testimony.
It is not an universal rule, as has already been shown, that even where a law, as a whole, is ambiguous, the intentions of the legislature may be sought in exterior evidence. It is only where a just law is ambiguous, that we may go out of its words to find its probable intent. We may never do it to find the probable intent of an unjust one that is ambiguous; for it is better that an unjust law should perish for uncertainty, than that its uncertainty should be solved by exterior evidence, and the law then be executed for the destruction of men’s rights.
Where only single words or phrases in a law are ambiguous, as is the case with the constitution of the United States, the rule is somewhat different from what it is where the law, as a whole, is ambiguous. In the case of single words and phrases that are ambiguous, all the rules applicable to ambiguous words and phrases must be exhausted in vain, before resort can be had to evidence exterior to the law, or the words and phrases be set down as sanctioning injustice. For example; to settle the meaning of an ambiguous word or phrase, we must, before going out of the instrument, refer to all the other parts of the instrument itself, to its preamble, its general spirit and object, its subject matter, and, in the case of the constitution, to “the general system of the laws” authorized and established by it. And the ambiguous word or phrase must be construed in conformity with these, if possible, especially when these are favorable to justice. And it is only when all these sources of light have failed to suggest a just, reasonable, and consistent meaning, that we can go out of the instrument to find the probable meaning.
If, when a single word or phrase were ambiguous, we could at once go out of the instrument, (before going to other parts of it,) to find the probable intent of that single word or phrase, and could determine its intent, independently of its relation to the rest of the instrument, we should be liable to give it a meaning irrelevant to the rest of the instrument, and thus involve the whole instrument in absurdity, contradiction, and incongruity.
There are only four or five single words and phrases in the constitution, that are claimed to be ambiguous in regard to slavery. All the other parts of the instrument, its preamble, its prevailing spirit and principles, its subject matter, “the general system of the laws” authorized by it, all repel the idea of its sanctioning slavery. If, then, the ambiguous words and phrases be construed with reference to the rest of the instrument, there is no occasion to go out of the instrument to find their meaning.
But, in point of fact, the words of a law never are ambiguous, legally speaking, where the alternative is only between a meaning that is consistent, and one that is inconsistent, with natural right; for the rule that requires the right to be preferred to the wrong, is imperative and universal in all such cases; thus making the legal meaning of the word precisely as certain, as though it could, in no case, have any other meaning. It thus prevents the ambiguity, which, but for the rule, might have existed.
This rule, that a just, in preference to an unjust, meaning must be given to a word, wherever it is possible, consistently with the rest of the instrument, obviously takes precedence of the rule that permits a resort to exterior evidence; and for the following reasons:—
1. Otherwise, the rule in favor of the just meaning could seldom or never be applied at all, because when we have gone out of the words of the law, we have gone away from those things to which the rule applies. The exterior evidence which we should find, would not necessarily furnish any opportunity for the application of the rule. This rule, therefore, of preferring the just to the unjust meaning of a word, could hardly have had an existence, except upon the supposition that it was to be applied to the words given in the law itself. And if applied to the words given in the law itself, it of course settles the meaning, and there is then no longer any occasion to go out of the law to find its meaning.
2. Nothing would be gained by going out of a law to find evidence of the meaning of one of its words, when a good meaning could be found in the law itself. Nothing better than a good meaning could be expected to be found by going out of the law. As nothing could be gained, then, by going out of the law, the only object of going out of it would be to find an unjust meaning; but that, surely, is no sufficient reason for going out of it. To go out of a law to find an unjust meaning for its words, when a just meaning could be found in the law itself, would be acting on the principle of subverting all justice, if possible.
3. It would hardly be possible to have written laws, unless the legal meaning of a word were considered certain, instead of ambiguous, in such cases as this; because there is hardly any word used in writing laws, which has not more than one meaning, and which might not therefore be held ambiguous, if we were ever to lose sight of the fact, or abandon the presumption, that justice is the design of the law. To depart from this principle would be introducing universal ambiguity, and opening the door to universal injustice.
4. Certainty and right are the two most vital principles of the law. Yet certainty is always sacrificed by going out of the words of the law; and right is always liable to be sacrificed, if we go out of the words, with liberty to choose a bad meaning, when a good meaning can be found in the words themselves; while both certainty and right are secured by adhering uniformly to the rule of preferring the just to the unjust meaning of a word, wherever the two come in collision. Need anything more be said to prove the soundness of the rule?
The words of a law, then, are never ambiguous, legally speaking, when the only alternative is between a just and an unjust meaning. They are ambiguous only when both meanings are consistent with right, or both inconsistent with it.
In the first of these two cases, viz., where both meanings are consistent with right, it is allowable, for the sake of saving the rights dependent on the efficacy of the law, to go to extraneous history to settle the probable intention of the legislature. But in the latter case, viz., where both meanings are inconsistent with right, it is not allowable to go out of the words of the law itself, to ascertain the legislative intention. The law must rather be suffered to remain inoperative for its uncertainty.
The rule, quoted from the supreme court, comes fully up to these principles; for that rule requires, in order that an unjust law may be carried into effect, that the unjust intent be “expressed,” as distinguished from being inferred, implied, or sought in exterior evidence. It must also be “expressed with irresistible clearness.” If it be left in an uncertainty, the law will be construed in favor of the right, if possible; if not, it will be suffered to perish for its ambiguity.
Apply, then, this rule of the court, in all its parts, to the word “free,” and the matter will stand thus.
1. A sense correlative with aliens, makes the constitution consistent with natural right. A sense correlative with slaves, makes the constitution inconsistent with natural right. The choice must therefore be made of the former sense.
2. A sense correlative with aliens, is consistent with “the general system of the laws” established by the constitution. A sense correlative with slavery, is inconsistent with that system. The former sense then must be adopted.
3. If a sense correlative with aliens be adopted, the constitution itself designates the individuals to whom the word “free,” and the words “all other persons” apply. If a sense correlative with slaves be adopted, the constitution itself has not designated the individuals to whom either of these descriptions apply, and we should have to go out of the constitution and laws of the United States to find them. This settles the choice in favor of the former sense.
4.Even if it were admitted that the word “free” was used as the correlative of slaves, still, inasmuch as the constitution itself has not designated the individuals who may, and who may not, be held as slaves, and as we cannot go out of the instrument to settle any ambiguity in favor of injustice, the provision must remain inoperative for its uncertainty; and all persons must be presumed free, simply because the constitution itself has not told us who may be slaves.
Apply the rule further to the words “importation of persons,” and “service and labor,” and those words wholly fail to recognize slavery.
Apply the rule only to the word “free,” and slavery is unconstitutional; for the words “importation of persons,” and “service and labor,” can have no claims to be considered recognitions or sanctions of slavery, unless such a signification be first given to the word “free.”
An eighth rule of interpretation is, that where the prevailing principles and provisions of a law are favorable to justice, and general in their nature and terms, no unnecessary exception to them, or to their operation, is to be allowed.
It is a dictate of law, as of common sense—or rather of law, because of common sense—that an exception to a rule cannot be established, unless it be stated with at least as much distinctness and certainty as the rule itself, to which it is an exception; because otherwise the authority of the rule will be more clear and certain, and consequently more imperative, than that of the exception, and will therefore outweigh and overbear it. This principle may justly be considered a strictly mathematical one. It is founded simply on the necessary preponderance of a greater quantity over a less. On this principle, an exception to a general law cannot be established, unless it be expressed with at least as much distinctness as the law itself.
In conformity with this principle, it is the ordinary practice, in the enactment of laws, to state the exceptions with the greatest distinctness. They are usually stated in a separate sentence from the rest of the law, and in the form of a proviso, or exception, commencing with the words “Provided, nevertheless,” “Excepting, however,” or words of that kind. And the language of the proviso is generally even more emphatic than that of the law, as it, in reality, ought to be, to preponderate against it.
This practice of stating exceptions has been further justified, and apparently induced, by that knowledge of human nature which forbids us to understand a man as contradicting, in one sentence what he has said in another, unless his language be incapable of any other meaning. For the same reason, a law, (which is but the expression of men’s intentions,) should not be held to contradict, in one sentence, what it has said in another, except the terms be perfectly clear and positive.
The practice of stating exceptions in this formal and emphatic manner, shows also that legislators have usually, perhaps unconsciously, recognized, and virtually admitted, the soundness of the rule of interpretation, that requires an exception to be stated with at least as much clearness as the law to which it is an exception.
This practice of stating exceptions in a clear and formal manner, is common even where no violation of justice is involved in the exception; and where an exception therefore involves less violation of reason and probability.
This rule of interpretation, in regard to exceptions, corresponds with what is common and habitual, if not universal, in common life, and in ordinary conversation. If, for instance, a man make an exception to a general remark, he is naturally careful to express the exception with peculiar distinctness; thus tacitly recognizing the right of the other party not to notice the exception, and the probability that he will not notice it, unless it be stated with perfect distinctness.
Finally. Although an exception is not, in law, a contradiction, it nevertheless partakes so strongly of the nature of a contradiction—especially where there is no legitimate or rightful reason for it—that it is plainly absurd to admit such an exception, except upon substantially the same terms that we admit a contradiction, viz., irresistible clearness of expression.
The question now is, whether there is, in the constitution, any compliance with these principles, in making exceptions in favor of slavery? Manifestly there is none. There is not even an approach to such a compliance. There are no words of exception; no words of proviso; no words necessarily implying the existence or sanction of anything in conflict with the general principles of the instrument.
Yet the argument for slavery, (I mean that founded on the representative clause,) makes two exceptions—not one merely, but two—and both of the most flagitious and odious character—without the constitution’s having used any words of proviso or exception; without its having devoted any separate sentence to the exception; and without its having used any words which, even if used in a separate sentence, and also preceded by a “Provided, nevertheless,” would have necessarily implied any such exceptions as are claimed. The exceptions are claimed as having been established merely incidentally and casually, in describing the manner of counting the people for purposes of representation and taxation; when, what is worse, the words used, if not the most common and proper that could have been used, are certainly both common and proper for describing the people, where no exception to “the general system of the laws” established by the constitution is intended.
It is by this process, and this alone, that the argument for slavery makes two exceptions to the constitution; and both, as has already been said, of the most flagitious and odious character.
One of these exceptions is an exception of principle, substituting injustice and slavery, for “justice and liberty.”
The other is an exception of persons; excepting a part of “the people of the United States” from the rights and benefits, which the instrument professes to secure to the whole; and exposing them to wrongs, from which the people generally are exempt.
An exception of principle would be less odious, if the injustice were of a kind that bore equally on all, or applied equally to all. But these two exceptions involve not only injustice in principle, but partiality in its operation. This double exception is doubly odious, and doubly inadmissible.
Another insuperable objection to the allowance of these exceptions, is, that they are indefinite—especially the latter one. The persons who may be made slaves are not designated. The persons allowed to be made slaves being left in uncertainty, the exception must fail for uncertainty, if for no other reason. We cannot, for the reasons given under the preceding rule, go out of the instrument to find the persons, because it is better that the exception should fail for its uncertainty, than that resort should be had to exterior evidence for the purpose of subjecting men to slavery.
A ninth rule of interpretation is, to be guided, in doubtful cases, by the preamble.
The authority of the preamble, as a guide to the meaning of an instrument, where the language is ambiguous, is established. In fact, the whole object of the preamble is to indicate the objects had in view in the enacting clauses; and of necessity those objects will indicate the construction to be given to the words used in those clauses. Any other supposition would either make the preamble worthless, or, worse than that, deceitful.
If we are guided by the preamble in fixing the meaning of those clauses that have been claimed for slavery, it is plain that no sanction or recognition of slavery will be found in them; for the preamble declares the objects of the constitution to be, among other things, “justice” and “liberty.”
A tenth rule of interpretation is, that one part of an instrument must not be allowed to contradict another, unless the language be so explicit as to make the contradiction inevitable.
Now the constitution would be full of contradictions, if it tolerated slavery, unless it be shown that the constitution itself has established an exception to all its general provisions, limiting their operation and benefits to persons not slaves. Such an exception or limitation would not, legally speaking, be a contradiction. But I take it for granted that it has already been shown that no such exception can be made out from its words. If no such exception be made out from its words, such a construction must, if possible, be given to each clause of the instrument, as will not amount to a contradiction of any other clause. There is no difficulty in making such a construction; but when made it will exclude slavery.
An eleventh rule is one laid down by the supreme court of the United States, as follows:
“An act of congress” (and the rule is equally applicable to the constitution) “ought never to be construed to violate the law of nations, if any other possible construction remains.”
This rule is specially applicable to the clause relative to “the importation of persons.” If that clause were construed to sanction the kidnapping of the people of foreign nations, and their importation into this country as slaves, it would be a flagrant violation of that law.
A twelfth rule, universally applicable to questions both of fact and law, and sufficient, of itself alone, to decide, against slavery, every possible question that can be raised as to the meaning of the constitution, is this, “that all reasonable doubts must be decided in favor of liberty.”
All the foregoing rules, it will be observed, are little other than varied and partial expressions of the rule so accurately, tersely, comprehensively, and forcibly expressed by the supreme court of the United States, viz.:
“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”
A thirteenth rule, and one of great importance, is, that instruments must be so construed as to give no shelter or effect to fraud.
This rule is especially applicable for deciding what meaning we are to give to the word free in the constitution; for if a sense correlative with slavery be given to that word, it will be clearly the result of fraud.
We have abundant evidence that this fraud was intended by some of the framers of the constitution. They knew that an instrument legalizing slavery could not gain the assent of the north. They therefore agreed upon an instrument honest in its terms, with the intent of misinterpreting it after it should be adopted.
The fraud of the framers, however, does not, of itself, implicate the people. But when any portion of the people adopt this fraud in practice, they become implicated in it, equally with its authors. And any one who claims that an ambiguous word shall bear a sense inappropriate to the subject matter of the instrument, contrary to the technical and common meaning of the word, inconsistent with any intentions that all the parties could reasonably be presumed to agree to, inconsistent with natural right, inconsistent with the preamble, and the declared purpose of the instrument, inconsistent with “the general system of the laws” established by the instrument; any one who claims such an interpretation, becomes a participator in the fraud. It is as much fraudulent, in law, for the people of the present day to claim such a construction of the word free, as it was for those who lived at the time the instrument was adopted.
Vattel has laid down two very correct principles to be observed as preventives of fraud. They are these:
1. That it is not permitted to interpret what has no need of interpretation.
2. That if a party have not spoken plainly, when he ought to have done so, that which he has sufficiently declared, shall be taken for true against him.
Vattel’s remarks in support of, and in connection with, these principles, are so forcible and appropriate that they will be given somewhat at length. If he had had in his mind this very fraud which the slaveholders and their accomplices intended to perpetrate by means of the word free in the constitution, he could hardly have said anything better fitting the case.
He says, “That fraud seeks to take advantage even of the imperfection of language; that men designedly throw obscurity and ambiguity into their treaties, to obtain a pretence for eluding them upon occasion. It is then necessary to establish rules founded on reason, and authorized by the law of nature, capable of frustrating the attempts of a contracting power void of good faith. Let us begin with those that tend particularly to this end; with those maxims of justice and equity destined to repress fraud and prevent the effect of its artifices.
“The first general maxim of interpretation is, that it is not permitted to interpret what has no need of interpretation. When an act is conceived in clear and precise terms, when the sense is manifest and leads to nothing absurd, there can be no reason to refuse the sense which this treaty naturally presents. To go elsewhere in search of conjectures in order to restrain or extinguish it, is to endeavor to elude it. If this dangerous method be once admitted, there will be no act which it will not render useless. Let the brightest light shine on all the parts of the piece, let it be expressed in terms the most clear and determinate; all this shall be of no use, if it be allowed to search for foreign reasons in order to maintain what cannot be found in the sense it naturally presents.
“The cavillers who dispute the sense of a clear and determinate article, are accustomed to draw their vain subterfuges from the pretended intention and views of the author of that article. It would often be very dangerous to enter with them into the discussion of these supposed views, that are not pointed out in the piece itself. This rule is more proper to repel them, and which cuts off all chicanery; if he who can and ought to have explained himself clearly and plainly, has not done it, it is the worse for him; he cannot be allowed to introduce subsequent restrictions which he hasnot expressed. This is the maxim of the Roman law; Pactionem obscuram iis nocere, in quorum fuit potestate legem apertius conscribere. (The harm of an obscure compact shall fall upon those in whose power it was to write the rule plaiply.) The equity of this rule is extremely visible, and its necessity is not less evident. There can be no secure conventions, no firm and solid concession, if these may be rendered vain by subsequent limitations that ought to have been mentioned in the piece, if they were included in the intentions of the contracting powers.”—Vattel, b. 2, ch. 17, secs. 262, 263, 264.
“On every occasion when a person has, and ought to have shown his intention, we take for true against him what he hassufficientlydeclared. This is an incontestible principle applied to treaties; for if they are not a vain play of words, the contracting parties ought to express themselves with truth, and according to their real intentions. If the intention sufficiently declared, was not taken for the true intention of him who speaks and binds himself, it would be of no use to contract and form treaties.”—Same, sec. 266.
“Is it necessary, in an enlightened age, to say that mental reservations cannot be admitted in treaties? This is manifest, since by nature even of the treaty, the parties ought to declare the manner in which they would be reciprocally understood. There is scarcely a person at present, who would not be ashamed of building upon a mental reservation. What can be the use of such an artifice, if it was not to lull to sleep some other person under the vain appearance of a contract? It is, then, a real piece of knavery.”—Same, sec. 275.
“There is not perhaps any language that has not also words which signify two or many different things, or phrases susceptible of more than one sense. Thence arise mistakes in discourse. The contracting powers ought carefully to avoid them. To employ them with design, in order to elude engagements, is a real perfidy, since the faith of treaties obliges the contracting parties to express their intentions clearly. But if the equivocal term has found admission into a public treaty, the interpretation is to make the uncertainty produced by it disappear.
“This is the rule that ought to direct the interpretation in this case. We ought always to give to expressions the sense most suitable to the subject, or to the matter to which they relate. For we endeavor by a true interpretation, to discover the thoughts of those who speak, or of the contracting powers in a treaty. Now it ought to be presumed that he who has employed a word capable of many different significations, has taken it in that which agrees with the subject. In proportion as he employs himself on the matter in question, the terms proper to express his thoughts present themselves to his mind; this equivocal word could then only offer itself in the sense proper to express the thought of him who makes use of it, that is, in the sense agreeable to the subject. Itwould be to no purpose to object, that we sometimes have recourse to equivocal expressions, with a view of exhibiting something very different from what one has truly in the mind, and that then the sense which agrees with the subject is not that which answers to the intention of the man who speaks. We have already observed, that whenever a man can and ought to have made known his intention, we may take for true against him what he has sufficiently declared. And as good faith ought to preside in conventions, they are always interpreted on the supposition that it actually did preside in them.”—Same, sec., 279, 80.
“The reason of the law, or the treaty, that is, the motive which led to the making of it, and the view there proposed, is one of the most certain means of establishing the true sense, and great attention ought to be paid to it whenever it is required to explain an obscure, equivocal and undetermined point, either of a law, or of a treaty, or to make an application of them to a particular case. As soon as we certainly know the reason which alone has determined the will of him who speaks, we ought to interpret his words, and to apply them in a manner suitable to that reason alone. Otherwise he will be made to speak and act contrary to his intention, and in a manner opposite to his views.
But we ought to be very certain that we know the true and only reason of the law, the promise, or the treaty. It is not here permitted to deliver ourselves up to vague and uncertain conjectures, and to suppose reason and views where there are none certainly known. If the piece in question is obscure in itself; if in order to know the sense, there are no other means left but to search for the reason of the act, and the views of the author; we must then have recourse to conjecture, and in the want of certainty, receive for true, what is most probable. But it is a dangerous abuse to go, without necessity, in search of reasons and uncertain views, in order to turn, restrain, or destroy, the sense of a piece that is clear enough in itself, and that presents nothing absurd; this is to offend against this incontestible maxim, that it is not permitted to interpret what has no need of interpretation. Much less is it permitted, when the author of a piece has himself there made known his reasons and motives, to attribute to him some secret reason, as the foundation to interpret the piece contrary to the natural sense of the terms. Though he had really the view attributed to him, if he has concealed it, and made known others, the interpretation can only be founded upon these, and not upon the views which the author has not expressed; we take for true against him what he has sufficiently expressed.”—Same, sec. 287.
In addition to the foregoing particular rules of interpretation, this general and sweeping one may be given, to wit, that we arenever unnecessarily to impute to an instrument any intention whatever which it would be unnatural for either reasonable or honest men to entertain. Such intention can be admitted only when the language will admit of no other construction.
Law is “a rule of conduct.” The very idea of law, therefore, necessarily implies the ideas of reason and right. Consequently, every instrument, and every man, or body of men, that profess to establish a law, impliedly assert that the law they would establish is reasonable and right. The law, therefore, must, if possible, be construed consistently with that implied assertion.
The rules already given (unless perhaps the fourth) take precedence of all the rules that can be offered on the side of slavery; and, taking that precedence, they decide the question without reference to any others.
It may, however, be but justice to the advocates of slavery, to state the rules relied on by them. The most important are the following:
One rule is, that the most common and obvious sense or a word is to be preferred.
This rule, so far as it will apply to the word free in the constitution, is little or nothing more than a repetition of the rule before given, (under rule fourth,) in favor of the technical meaning of words. It avails nothing for slavery; and for the following reasons:
1. In determining, in a particular case, what is “the most common and obvious meaning” of a word, reference must be had not alone to the sense in which the word is most frequently used in the community, without regard to the context, or the subject to which it is applied; but only to its most common meaning, when used in a similar connection, for similar purposes, and with reference to the same or similar subjects. For example. In a law relative to vessels navigating Massachusetts Bay, or Chesapeake Bay, we must not understand the word bay in the same sense as when we speak of a bay horse, a bay tree, or of a man standing at bay. Nor in a law regulating the rate of discount, or the days of grace, on checks, notes, drafts and orders, must we understand the word check in the same sense as when we speak of a man’s being checked in his career; nor the word note in the same sense as when we speak of notes in music, or of a man of note; nor the word draft in the same sense as when we speak of a ship’s draft of water, or of a sketch, plan, or drawing on paper; nor the word order in the same sense as when we speak of a military order, or orders in architecture, or of different orders of men, as the order of dukes, the order of knights, the order of monks, the order of nuns, &c., &c.
All can see that the meanings of the same words are so different when applied to different subjects, and used in different connections, that written laws would be nothing but jargon, and this rule utterly ridiculous, unless, in determining the most common and obvious meaning of a word, in any particular case, reference be had to its most common use in similar connections, and when applied to similar subjects, and with similar objects in view.
To ascertain, then, the most “common and obvious meaning” of the word “free,” in such a connection as that in which it stands in the constitution, we must first give it a meaning that appropriately describes a class, which the constitution certainly presumes will exist under the constitution. Secondly, a meaning which the whole “people of the United States,” (slaves and all,) who are parties to the constitution, may reasonably be presumed to have voluntarily agreed that it should have. Thirdly, we must give it a meaning that will make the clause in which it stands consistent with the intentions which “the people,” in the preamble, declare they have in view in ordaining the constitution, viz., “to establish justice,” and “secure the blessings of liberty to themselves, (the whole people of the United States,) and their posterity.” Fourthly, we must give it a meaning harmonizing with, instead of contradicting, or creating an exception to, all the general principles and provisions of the instrument. Fifthly, such a meaning must be given to it as will make the words, “all other persons,” describe persons who are proper subjects of “representation” and of taxation as persons. No one can deny that, at the time the constitution was adopted, the most “common and obvious meaning” of the word “free,” when used by the whole people of a state or nation, in political instruments of a similar character to the constitution, and in connection with such designs, principles, and provisions as are expressed and contained in the constitution, was such as has been claimed for it in this argument, viz., a meaning describing citizens, or persons possessed of some political franchise, as distinguished from aliens, or persons not possessed of the same franchise. Nobody can deny this. On the contrary, everybody who argues that it describes free persons, as distinguished from slaves, admits, and is obliged to admit, that this meaning is either in conflict with, or an exception to, the professed intent, and all the general principles and provisions of the instrument.
If the constitution had purported to have been instituted by a part of the people, instead of the whole; and for purposes of injustice and slavery, instead of “justice and liberty;” and if “the general system of the laws” authorized by the constitution, had corresponded with that intention, there would then have been very good reason for saying that “the most common and obvious meaning” of the word “free,” in such a connection, was to describe free persons as distinguished from slaves. But as the constitution is, in its terms, its professed intent, and its general principles and provisions, directly the opposite of all this; and as the word “free” has a “common and obvious meaning,” that accords with these terms, intent, principles, and provisions, its most “common and obvious meaning,” in such a connection, is just as clearly opposite to what it would have been in the other connection, as its most common and obvious meaning, in the other connection, would be opposite to the meaning claimed for it in this. This position must either be admitted, or else it must be denied that the connection in which a word stands has anything to do with fixing its most “common and obvious meaning.”
Again. It has already been shown that the most common, and the nearly or quite universal meaning, given to the word free, both in this country and in England, when used in laws of a fundamental character, like the constitution, or, indeed, in any other laws, (for the purpose of designating one person, as distinguished from another living under the same laws,) was not to designate a free person, as distinguished from a slave, but to distinguish a citizen, or person possessed of some franchise, as distinguished from aliens, or persons not possessed of the same franchise. The authority of this rule, then, so far as it regards the most “common” meaning of this word in the law, is entirely in favor of the argument for freedom, instead of the argument for slavery.
2. But the rule fails to aid slavery for another reason. As has before been remarked, the word “free” is seldom or never used, even in common parlance, as the correlative of slaves, unless when applied to colored persons. A colored person, not a slave, is called a “free colored person.” But the white people of the south are never, in common parlance, designated as “free persons,” but as white persons. A slaveholder would deem it an insult to be designated as a “free person,” that is, using the word free in a sense correlative with slavery, because such a designation would naturally imply the possibility of his being a slave. It would naturally imply that he belonged to a race that was sometimes enslaved. Such an implication being derogatory to his race, would be derogatory to himself. Hence, where two races live together, the one as masters, the other as slaves, the superior race never habitually designate themselves as the “free persons,” but by the appropriate name of their race, thus avoiding the implication that they can be made slaves.
Thus we find, that the use of the word “free” was “common,” in the law, to describe those who were citizens, but it was not “common,” either in the law, or in common parlance, for describing the white people of the south, as distinguished from their slaves. The rule, then, that requires the most common and obvious meaning of the word to be preferred, wholly fails to give to the word free, as used in the constitution, a meaning correlative with slaves.
3. But in point of fact, the rule that requires us to prefer the most “common and obvious meaning,” is of a wholly subordinate and unauthoritative character, when compared with the rules before laid down, except so far as it is necessary to be observed in order to preserve a reasonable connection and congruity of ideas, and prevent the laws from degenerating into nonsense. Further than this, it has no authority to give an unjust meaning to a word that admits of a just one, or to give to a word a meaning, inconsistent with the preamble, the general principles, or any other provisions, of an instrument. In short, all the rules previously laid down, (unless, perhaps, the fourth, which is nearly or quite synonymous with this,) take precedence of this, and this is of no consequence, in comparison with them, (except as before mentioned,) when they come in conflict. In this case, however, of the word free, there is no conflict. And the same may be said of the words, “held to service or labor,” and “the importation of persons.” Neither of these two latter forms of expression had probably ever been used in the country, either in law or in common parlance, to designate slaves or slavery. Certainly there had been no common use of them for that purpose; and such, therefore, cannot be said to be either their common or their obvious meaning. But even if such were their common and obvious meaning, it would not avail against the rule in favor of liberty or right, or any of the other rules before laid down.
That the other rules take precedence of this, is proved by the fact, that otherwise those rules could never have had an existence. If this rule took precedence of those, it would invariably settle the question; no other rule of interpretation would ever be required; because, it is not a supposable case, that there can ever be two meanings, without one being more common or obvious than the other. Consequently, there could never be any opportunity to apply the other rules, and they, therefore, could never have had an existence.
If this rule took precedence of the others, all legal interpretation would be resolved into the simple matter of determining which was the most common and obvious meaning of words in particular connections. All questions of written law would thus be resolved into a single question of fact; and that question of fact would have to be decided by a judge, instead of a jury. And a very slight preponderance of evidence, as to the senses in which words are most commonly understood, would often have to determine the question. The judge, too, would have to be presumed omniscient as to the most common and obvious meaning of words, as used by the people at large, each one of whom is known to often use words in different senses, and with different shades of meaning, from all others. And the slightest preponderance of evidence on this point, that should appear to the judge’s mind alone, would be sufficient to overrule all those palpable principles of liberty, justice, right, and reason, which the people at large, (who cannot reasonably be presumed to be very critical or learned plilologists,) have in view in establishing government and laws. In short, courts, acting on such a principle, would in practice be little or nothing more than philological, instead of legal, tribunals.
Government and laws being established by the people at large, not as philologists, but as plain men, seeking only the preservation of their rights, the words they use must be made to square with that end, if possible, instead of their rights being sacrificed to nice philological criticisms, to which the people are strangers. Not that, in interpreting written laws, the plain and universal principles of philology are to be violated, for the sake of making the laws conform to justice; for that would be equivalent to abolishing all written laws, and abolishing the use of words as a means of describing the laws. But the principle is, that great latitude must be allowed in matters of philology, in accommodation of the various senses in which different men use and understand the same word in the same circumstances; while a severe and rigid adherence is required to principles of natural right, which are far more certain in their nature, and in regard to which all men are presumed to be agreed, and which all are presumed to have in view in the establishment of government and laws. It is much more reasonable to suppose—because the fact itself is much more common—that men differ as to the meaning of words, than that they differ as to the principles which they try to express by their words.
No two men, in drawing up the same law, would do it in the same words, owing to their different tastes, capacities, and habits, in the use of language. And yet a law, when written, must, in theory, mean the same to all minds. This necessity of having the law mean the same to all minds, imposes upon courts the necessity of disregarding men’s different tastes and habits in the matter of words, and of construing the words of all laws so as to make them conform as nearly as possible to some general principle, which all men are presumed to have in view, and in regard to which all are presumed to be agreed. And that general principle is justice.
The result, then, is, that justice and men’s rights—the preservation of which is the great object of all the government and laws to which it is a supposable case that the whole people can have agreed—must not be staked on the decision of such a nice, frivolous, and uncertain point, as is the one, whether this or that meaning of a word is the more common one in the community, or the more obvious one to the generality of minds, in particular cases, when, in fact, either meaning is grammatically correct, and appropriate to the subject. Instead of such folly and suicide, any meaning, that is consonant to reason in the connection in which the word stands, and that is consistent with justice, and is known and received by society, though less common or obvious than some others, must be adopted, rather than justice be sacrificed, and the whole object of the people in establishing the government be defeated.
So great is the disagreement, even among scholars and lexicographers, as to the meaning of words, that it would be plainly impossible for the most acute scholars to agree upon a code of written laws, having in view the preservation of their natural rights, unless they should also expressly or impliedly agree, that, out of regard to the different senses in which the different individuals of their number might have understood the language in which the laws were written, the courts, in construing those laws, should be allowed very great latitude whenever it should be necessary, for the purpose of finding a sense consistent with justice. And if this latitude would be required in construing an instrument agreed to only by scholars and critics, how much more is it required in construing an instrument agreed to by mankind at large.
This rule, then, that prefers the most common and obvious meaning of words, is a very insignificant and unimportant one, compared with the previous ones; and it can legally be resorted to, only where the prior ones, (unless, perhaps, the fourth,) are either inapplicable to, or have failed to determine the question; as, for instance, in cases where there is involved no question of right or wrong, or of consistency or inconsistency with the preamble, the general principles, or other particular provisions of an instrument; where nothing more than questions of expediency or convenience are concerned. And even a clear case of serious inconvenience only, is sufficient to set aside the rule, unless the language be very explicit.
This rule, in favor of the most common and obvious meaning of words, has never, so far as I am aware, been laid down as decisive, by the Supreme Court of the United States, in any cases where any question of right, consistency, or of great and manifest convenience, was involved. I think it has generally been cited as authoritative, in constitutional questions, only where the doubt was, whether a particular constitutional power had been vested in the general government, or reserved to the states. In such cases, where the power was admitted to be in one government or the other, and where no question of right, of consistency with other parts of the instrument, or of manifest convenience, was involved, the court, very properly assuming that the power might be as rightfully vested in one government as in the other, at the discretion of the people, have held that the doubt should be determined by taking the language of the constitution to have been used in its most common and obvious sense. But such a decision of a mere question as to which of two governments is the depository of a particular power, which is conceded to be vested in one or the other, has nothing to do with cases where a question of right or wrong is involved, or of consistency with other parts of the instrument, or even where a serious and clear question of inconvenience is concerned.
If, however, that court have, at any time, laid greater stress upon the rule, they are not sustained, either by the reason of things, or by the practice of other courts; nor are they consistent or uniform in the observance of it themselves.
A second rule of interpretation, relied upon by the advocates of slavery, is that where laws are ambiguous, resort may be had to exterior circumstances, history, &c., to discover the probable intention of the law-givers.
But this is not an universal rule, as has before been shown, (under rule seventh,) and has no application to a question that can be settled by the rules already laid down, applicable to the words themselves. It is evident that we cannot go out of the words of a law, to find its meaning, until all the rules applicable to its words have been exhausted. To go out of a law to find the meaning of one of its words, when a meaning, and a good meaning, can be found in the law, is assuming gratuitously that the law is incomplete; that it has been but partially written; that, in reality, it is not a law, but only a part of a law; and that we have a right to make any additions to it that we please.
Again. When we go out of the words of the law, we necessarily go into the regions of conjecture. We therefore necessarily sacrifice certainty, which is one of the vital principles of the law. This cannot be done for any bad purpose. It can only be done to save rights, (not to accomplish wrongs,) depending on the efficacy of the law.
To go out of a law to find a bad meaning, when a good meaning can be found in the law, is also to sacrifice right, the other vital principle of law. So that both certainty and right would be sacrificed by going out of the constitution to find the meaning, or application, of the word free; since an appropriate and good meaning is found in the instrument itself.
Further. It has before been shown, (under rule seventh,) that a word is not, legally speaking, “ambiguous,” when the only question is between a just and an unjust meaning; because the rule, which requires the right to be preferred to the wrong, being uniform and imperative, makes the meaning always and absolutely certain; and thus prevents the ambiguity that might otherwise have existed.
It is true that, in a certain sense, such a word may be called “ambiguous,” but not in a legal sense. Almost every word that is used in writing laws, might be called ambiguous, if we were allowed to lose sight of the fact, or unnecessarily abandon the presumption, that the law is intended for purposes of justice and liberty.
But this point has been so fully discussed in the former part of this chapter, (under rule seventh,) that it need not now be discussed at length.
It is not to be forgotten, however, that even if we go out of the constitution to find the meaning of the word free, and resort to all the historical testimony that is of a nature to be admissible at all, we shall still be obliged to put the same construction upon it as though we take the meaning presented by the constitution itself. The use of the word in all laws of a similar character, and even of a dissimilar character, to the constitution, fixes this meaning. The principles of liberty, prevailing in the country generally, as evidenced by the declaration of independence, and the several State constitutions, and constituting at least the paramount, the preponderating, law, in every State of the Union, require the same meaning to be given to the word.
The fact, that this prevailing principle of liberty, or this general principle of law, was, at that time, violated by a small portion, (perhaps one fortieth,) of the community, (the slaveholders,) furnishes no legal evidence against this construction; because the constitution, like every other law, presumes everybody willing to do justice, unless the contrary explicitly appear in the instrument itself. This is a reasonable presumption, both in fact and in law, as has before been suggested, (under rule sixth.) What court ever laid down the rule that an instrument was “ambiguous,” or that an unjust meaning must be given to it, because its just meaning was more just than the parties, or some few of the parties, could reasonably be presumed to have intended the instrument should be? If this idea were admissible, as a rule of interpretation, all our most just and equitable laws are liable to be held ambiguous, and to have an unjust construction put upon them, (if their words will admit of it,) on the ground of their present construction being more just than some portion of the community, for which they were made, could be presumed to desire them to be. The slaveholders, then, must be presumed to have been willing to do justice to their slaves, if the language of the constitution implies it, whether they were really willing or not. No unwillingness to do justice can be presumed on the part of the slaveholders, any more than on the part of any other of the parties to the constitution, as an argument against an interpretation consistent with liberty.
Again. The real or presumed intentions of that particular portion of the “people,” who were slaveholders, are of no more legal consequence towards settling ambiguities in the constitution, than are the real or presumed intentions of the same number of slaves; for both slaves and slaveholders, as has been shown, (under rule sixth,) were, in law, equally parties to the constitution. Now, there were probably five or ten times as many slaves as slaveholders. Their intentions, then, which can be presumed to have been only for liberty, overbalance all the intentions of the slaveholders. The intentions of all the non-slaveholders, both north and south, must also be thrown into the same scale with the intentions of the slaves—the scale of liberty.
But further. The intentions of all parties, slaves, slaveholders, and non-slaveholders, throughout the country, must be presumed to have been precisely alike, because, in theory, they all agreed to the same instrument. There were, then, thirty, forty, or fifty, who must be presumed to have intended liberty, where there was but one that intended slavery. If, then, the intentions, principles, and interests, of overwhelming majorities of “the people,” who “ordained and established the constitution,” are to have any weight in settling ambiguities in it, the decision must be in favor of liberty.
But it will be said that, in opposition to this current of testimony, furnished by the laws and known principles of the nation at large, we have direct historical evidence of the intentions of particular individuals, as expressed by themselves at or about the time.
One answer to this argument is, that we have no legal evidence whatever of any such intentions having been expressed by a single individual in the whole nation.
Another answer is, that we have no authentic historical evidence of such intentions having been expressed by so many as five hundred individuals. If there be such evidence, where is it? and who were the individuals? Probably not even one hundred such can be named. And yet this is all the evidence that is to be offset against the intentions of the whole “people of the United States,” as expressed in the constitution itself, and in the general current of their then existing laws.
It is the constant effort of the advocates of slavery, to make the constitutionality of slavery a historical question, instead of a legal one. In pursuance of this design, they are continually citing the opinions, or intentions, of Mr. A, Mr. B, and Mr. C, as handed down to us by some history or other; as if the opinions and intentions of these men were to be taken as the opinions and intentions of the whole people of the United States; and as if the irresponsible statements of historians were to be substituted for the constitution. If the people of this country have ever declared that these fugitive and irresponsible histories of the intentions and sayings of single individuals here and there, shall constitute the constitutional law of the country, be it so; but let us be consistent, burn the constitution, and depend entirely upon history. It is nothing but folly, and fraud, and perjury, to pretend to maintain, and swear to support, the constitution, and at the same time get our constitutional law from these irresponsible sources.
If every man in the country, at the time the constitution was adopted, had expressed the intention to legalize slavery, and that fact were historically well authenticated, it would be of no legal importance whatever—and why? Simply because such external expressions would be no part of the instrument itself.
Suppose a man sign a note for the payment of money, but at the time of signing it declare that it is not his intention to pay it, that he does not sign the note with such an intention, and that he never will pay it. Do all these declarations alter the legal character of the note itself, or his legal obligation to pay? Not at all—and why? Because these declarations are no part of that particular promise which he has expressed by signing the note. So if every man, woman, and child in the Union, at the time of adopting the constitution, had declared that it was their intention to sanction slavery, such declarations would all have been but idle wind—and why? Because they are no part of that particular instrument, which they have said shall be the supreme law of the land. If they wish to legalize slavery, they must say so in the constitution, instead of saying so out of it. By adopting the constitution, they say just what, and only what, the constitution itself expresses.
A third rule of interpretation, resorted to for the support of slavery, is the maxim that “Usage is the best interpreter of laws.”
If by this rule be meant only that the meaning to be applied to a word in a particular case ought to be the same that has usually been applied to it in other cases of a similar nature, we can, of course, have no objection to the application of the rule to the word “free;” for usage, as has already been shown, will fix upon it a meaning other than as the correlative of slaves.
Or if by this rule be meant that all laws must be interpreted according to those rules of interpretation which usage has established, that is all that the advocates of liberty can desire, in the interpretation of the constitution.
But if the rule requires that after a particular law has once, twice, or any number of times, been adjudicated upon, it must always be construed as it always has been, the rule is ridiculous; it makes the interpretation given to a law by the courts superior to the law itself; because the law had a meaning of its own before any “usage” had obtained under it, or any judicial construction had been given to it.
It is the original meaning of the constitution itself that we are now seeking for; the meaning which the courts were bound to put upon it from the beginning; not the meaning they actually have put upon it. We wish to determine whether the meaning which they have hitherto put upon it be correct. To settle this point, we must go back to the rules applicable to the instrument itself, before any judicial constructions had been given to it. All constructions put upon it by the courts or the government, since the instrument was adopted, come too late to be of any avail in settling the meaning the instrument had at the time it was adopted—certainly unless it be impossible to settle its original meaning by any rules applicable to the instrument itself.
We charge the courts with having misinterpreted the instrument from the beginning; with having violated the rules that were applicable to the instrument before any practice or usage had obtained under it. This charge is not to be answered by saying that the courts have interpreted it as they have, and that that interpretation is now binding, on the ground of usage, whether it were originally right or wrong. The constitution itself is the same now that it was the moment it was adopted. It cannot have been altered by all the false interpretations that may have been put upon it.
If this rule were to be applied in this manner to the constitution, it would deserve to be regarded as a mere device of the courts to maintain their own reputations for infallibility, and uphold the usurpations of the government on which they are dependent, rather than a means of ascertaining the real character of the constitution.
But perhaps it will be said, that by usage is meant the practice of the people. It would be a sufficient answer to this ground to say, that usage, against law and against right, can neither abolish nor change the law, in any case. And usage is worth nothing in the exposition of a law, except where the law is so uncertain that its meaning cannot be settled by the rules applicable to its words. Furthermore, it is only ancient usage that is, in any case, of any considerable importance.
This whole matter of usage is well disposed of in the note.
A fourth rule of interpretation, relied on for the support of slavery, is that the words of a law must be construed to subserve the intentions of the legislature. So also the words of a contract must be construed to subserve the intentions of the parties. And the constitution must be construed to subserve the intentions of “the people of the United States.”
Those who quote this rule in favor of slavery, assume that it was the intention of “the people of the United States” to sanction slavery; and then labor to construe all its words so as to make them conform to that assumption.
But the rule does not allow of any such assumption. It does not supersede, or at all infringe, the rule that “the intention of the legislature is to be collected from the words they have used to convey it.” This last rule is obviously indispensable to make written laws of any value; and it is one which the very existence of written laws proves to be inflexible; for if the intentions could be assumed independently of the words, the words would be of no use, and the laws of course would not be written.
Nor does this rule, that words are to be construed so as to subserve intentions, supersede, or at all infringe, the rule, that the intentions of the legislature are to be taken to be just what their words express, whether such be really their intentions or not.
The two rules, that “words must be construed to subserve intentions,” and that “intentions must be collected from the words,” may, at first view, appear to conflict with each other. There is, however, no conflict between them. The rule, that words must be construed to subserve intentions, applies only to ambiguous words; to those words which, on account of their ambiguity, need to be construed; and it assumes that the intentions of the law have been made known by other words, that are not ambiguous. The whole meaning of the rule, then, is, that the intentions ofambiguouswords must be construed in conformity with the intentions expressed in those words that are explicit.
Where no intentions are explicitly revealed, the court will presume the best intentions of which the words, taken as a whole, are capable; agreeably to the rule cited from the Supreme Court of Massachusetts, viz., “It is always to be presumed that the legislature intend the most beneficial construction of their acts, when the design of them is not apparent.”—4 Mass., 537.
This rule, then, that the ambiguous words of an instrument must be construed to subserve the intentions expressed by other words, that are explicit, requires that the ambiguous words in the constitution (if there are any such) be construed in favor of liberty, instead of slavery.
Thus have been stated and examined all the rules of interpretation, (with the exception of one, to be named hereafter,) that occur to me as being of any moment in this discussion. And I think the soundness and permanent authority of those that make for liberty and justice, if indeed they do not all make for liberty and justice, have been shown.
But of the reason and authority of all these rules, the reader must of necessity judge for himself; for their whole authority rests on their reason, and on usage, and not on any statute or constitution enacting them.And the way for the reader to judge of their soundness, is, for him to judge whether they are the rules by which he wishes his own contracts, and the laws on which he himself relies for protection, to be construed. Whether, in fact, honest contracts, honest laws, and honest constitutions, can be either agreed upon, or sustained, by mankind, if they are to be construed on any other principles than those contained in these rules.
If he shall decide these questions in favor of the rules, he may then properly consider further, that these were the received rules of legal interpretation at the time the constitution was adopted, and had been for centuries. That they had doubtless been the received rules of interpretation from the time that laws and contracts were first formed among men; inasmuch as they are such as alone can secure men’s rights under their honest contracts, and under honest laws, and inasmuch also as they are such as unprofessional and unlearned men naturally act upon, under the dictates of common sense, and common honesty.
If it now be still objected that the people, or any portion of them, did not intend what the constitution, interpreted by the preceding rules, expresses, the answer is this.
We must admit that the constitution, of itself, independently of the actual intentions of the people, expresses some certain, fixed, definite, and legal intentions; else the people themselves would express no intentions by agreeing to it. The instrument would, in fact, contain nothing that the people could agree to. Agreeing to an instrument that had no meaning of its own, would only be agreeing to nothing.
The constitution, then, must be admitted to have a meaning of its own, independently of the actual intentions of the people. And if it be admitted that the constitution has a meaning of its own, the question arises, What is that meaning? And the only answer that can be given is, that it can be no other than the meaning which its words, interpreted by sound legal rules of interpretation, express. That, and that alone, is the meaning of the constitution. And whether the people who adopted the constitution really meant the same things which the constitution means, is a matter which they were bound to settle, each individual with himself, before he agreed to the instrument; and it is therefore one with which we have now nothing to do. We can only take it for granted that the people intended what the constitution expresses, because, by adopting the instrument as their own, they declared that their intentions corresponded with those of the instrument. The abstract intentions, or meaning, of the instrument itself, then, is all that we have now any occasion to ascertain. And this we have endeavored to do, by the application of the foregoing rules of interpretation.
It is perfectly idle, fraudulent, and futile, to say that the people did not agree to the instrument in the sense which these rules fix upon it; for if they have not agreed to it in that sense, they have not agreed to it at all. The instrument itself, as a legal instrument, has no other sense, in which the people could agree to it. And if the people have not adopted it in that sense, they have not yet adopted the constitution; and it is not now, and never has been, the law of the land.
There would be just as much reason in saying that a man who signs a note for the payment of five hundred dollars, does not sign it in the legal sense of the note, but only in the sense that he will not pay, instead of the sense that he will pay, so much money, as there is in saying that the people did not agree to the constitution in its legal sense, but only in some other sense, which slaveholders, pirates, and thieves might afterwards choose to put upon it.
Besides, does any one deny that all the rest of the constitution, except what is claimed for slavery, was agreed to in the sense which these rules put upon it? No decent man will make such a denial. Well, then, did not the people intend that all parts of the same instrument should be construed by the same rules? Or do the advocates of slavery seriously claim that three or four millions of people, thinly scattered over thirteen states, and having no opportunity for concert, except by simply saying yea, or nay, to the instrument presented to them, did, nevertheless, at the time of agreeing to the instrument, agree, also, by means of some mysterious, invisible, miraculous intercourse, that the slave clauses, as they are called, should be construed by directly opposite rules from all the rest of the instrument? Even if they did so agree, such agreement would be no part of the constitution; but if they did not, they certainly did not agree to sanction slavery. No matter what any, or all, of them said before, or after, or otherwise than by, the adoption of the instrument. What they all said by the single act of adoption, is all that had any effect in establishing the constitutional law of the country.
Certainly, the whole instrument must be construed by uniform rules of interpretation. If, then, the slave clauses, as they are called, are construed so as to sanction slavery, all the rest of the instrument must be construed to sanction all possible iniquity and injustice of which its words can be made to insinuate a sanction. More than this. “The laws passed in pursuance of the constitution,” must of course be construed by the same rules as the constitution itself. If, then, the constitution is to be construed as adversely as possible to liberty and justice, all “the laws passed in pursuance of it” must be construed in the same manner. Such are the necessary results of the arguments for slavery.
Nothing can well be more absurd than the attempt to set up the real or pretended intentions of a few individuals, in opposition to the legal meaning of the instrument the whole people have adopted, and the presumed intentions of every individual who was a party to it. Probably no two men, framers, adopters, or any others, ever had the same intentions as to the whole instrument; and probably no two ever will. If, then, one man’s actual intentions are of any avail against the legal meaning of the instrument, and against his presumed intentions, any and every other man’s actual intentions are of equal importance; and consequently, in order to sustain this theory of carrying into effect men’s actual intentions, we must make as many different constitutions out of this one instrument, as there were, are, or may be, different individuals who were, are, or may be, parties to it.
But this is not all. It is probable that, as matter of fact, four fifths, and, not unlikely, nine tenths, of all those who were legally parties to the constitution, never even read the instrument, or had any definite idea or intention at all in regard to the relation it was to bear, either to slavery, or to any other subject. Every inhabitant of the country, man, woman, and child, was legally a party to the constitution, else they would not have been bound by it. Yet how few of them read it, or formed any definite idea of its character, or had any definite intentions about it. Nevertheless, they are all presumed to have read it, understood it, agreed to it, and to have intended just what the instrument legally means, as well in regard to slavery as in regard to all other matters. And this presumed intention of each individual, who had no actual intention at all, is of as much weight in law, as the actual intention of any of those individuals, whose real or pretended intentions have been so much trumpeted to the world. Indeed the former is of altogether more importance than the latter, if the latter were contrary to the legal meaning of the instrument itself.
The whole matter of the adoption of the constitution is mainly a matter of assumption and theory, rather than of actual fact. Those who voted against it, are just as much presumed to have agreed to it, as those who voted for it. And those who were not allowed to vote at all, are presumed to have agreed to it equally with the others. So that the whole matter of the assent and intention of the people, is, in reality, a thing of assumption, rather than of reality. Nevertheless, this assumption must be taken for fact, as long as the constitution is acknowledged to be law; because the constitution asserts it as a fact, that the people ordained and established it; and if that assertion be denied, the constitution itself is denied, and its authority consequently invalidated, and the government itself abolished.
Probably not one half, even, of the male adults ever so much as read the constitution, before it was adopted. Yet they are all presumed to have read it, to have understood the legal rules of interpreting it, to have understood the true meaning of the instrument, legally interpreted, and to have agreed to it in that sense, and that only. And this presumed intention of persons who never actually read the instrument, is just as good as the actual intention of those who studied it the most profoundly; and better, if the latter were erroneous.
The sailor, who started on a voyage before the constitution was framed, and did not return until after it was adopted, and knew nothing of the matter until it was all over, is, in law, as much a party to the constitution as any other person. He is presumed to have read it, to have understood its legal meaning, and to have agreed to that meaning, and that alone; and his presumed intention is of as much importance as the actual intention of George Washington, who presided over the convention that framed it, and took the first presidential oath to support it. It is of altogether more consequence than the intention of Washington, if Washington intended anything different from what the instrument, legally interpreted, expresses; for, in that case, his intention would be of no legal consequence at all.
Men’s presumed intentions were all uniform, all certainly right, and all valid, because they corresponded precisely with what they said by the instrument itself; whereas their actual intentions were almost infinitely various, conflicting with each other, conflicting with what they said by the instrument, and therefore of no legal consequence or validity whatever.
It is not the intentions men actually had, but the intentions they constitutionally expressed, that make up the constitution. And the instrument must stand, as expressing the intentions of the people, (whether it express them truly or not,) until the people either alter its language, or abolish the instrument. If “the people of the United States” do not like the constitution, they must alter, or abolish, instead of asking their courts to pervert it, else the constitution itself is no law.
Finally. If we are bound to interpret the constitution by any rules whatever, it is manifest that we are bound to do it by such rules as have now been laid down. If we are not bound to interpret it by any rules whatever, we are wholly without excuse for interpreting it in a manner to legalize slavery. Nothing can justify such an interpretation but rules of too imperative a character to be evaded.
The constitution (Art. 1, Sec. 2) requires that the popular basis of representation and taxation be made up as follows, to wit:
“By adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.”
If the word free, in this clause, be used as the correlative of slaves, and the words “all other persons” mean slaves, the words “including those bound to service for a term of years” are sheer surplusage, having no legal force or effect whatever; for the persons described by them would of course have been counted with the free persons, without the provision. If the word free were used as the correlative of slaves at all, it was used as the correlative of slaves alone, and not also of servants for a term of years, nor of prisoners, nor of minors under the control of their parents, nor of persons under any other kind of restraint whatever, than the simple one of chattel slavery.
It was, therefore, wholly needless to say that “persons bound to service for a term of years” should not be counted in the class with slaves, for nobody, who understood the word free as the correlative of slaves, would have imagined that servants for a term of years were to be included in the class with slaves. There would have been nearly or quite as much reason in saying that minors under the control of their parents, persons under guardianship, prisoners for debt, prisoners for crime, &c., should not be counted in the class with slaves, as there was in saying that servants for a term of years should not be counted in that class. In fact, the whole effect of the provision, if it have any, on the slave hypothesis, is to imply that all other persons under restraint, except “those bound to service for a term of years,” shall be counted in the class with slaves; because an exception of particular persons strengthens the rule against all persons not excepted. So that, on the slave hypothesis, the provision would not only be unnecessary in favor of the persons it describes, but it would even be dangerous in its implications against persons not included in it.
But we are not allowed to consider these words even as surplusage, if any reasonable and legal effect can be given them. And under the alien hypothesis they have such an effect.
Of the “persons bound to service for a term of years” in those days, large numbers were aliens, who, but for this provision, would be counted in the three fifths class. There was, nevertheless, a sound reason why they should be distinguished from other aliens, and be counted as units, and that was, that they were bound to the country for a term of years as laborers, and could not, like other aliens, be considered either a transient, unproductive, or uncertain population. Their being bound to the country for a term of years as laborers, was, to all practical purposes, equivalent to naturalization; for there was little or no prospect that such persons would ever leave the country afterwards, or that, during their service, they would recognize the obligations of any foreign allegiance.
On the alien hypothesis, then, the words have an effect, and a reasonable one. On the slave hypothesis, they either have no effect at all, or one adverse to all persons whatsoever that are under any kind of restraint, except servants for a term of years.
The injustice to the North that is involved in allowing slaves, who can have no rights in the government, who can owe it no allegiance, who are necessarily its enemies, and who therefore weaken, instead of supporting it—the injustice and inequality of allowing such persons to be represented at all in competition with those who alone have rights in the government, and who alone support it, is so palpable and monstrous, as utterly to forbid any such construction being put upon language that does not necessarily mean it. The absurdity, also, of such a representation, is, if possible, equal to its injustice. We have no right—legal rules, that are universally acknowledged, imperatively forbid us—unnecessarily to place upon the language of an instrument a construction, that either stultifies the parties to it to such a degree as the slave construction does the people of the North, or that makes them consent to having such glaring and outrageous injustice practised upon them.
But it will be said in reply to these arguments, that, as a compensation to the North for the injustice of slave representation, all direct taxes are to be based on population; that slaves are to be counted as three fifths citizens, in the apportionment of those taxes; and that the injustice of the representation being thus compensated for, by a corresponding taxation, its absurdity is removed.
But this reply is a mere assumption of the fact that the constitution authorizes slave taxation; a fact, that, instead of being assumed, stands only on the same evidence as does the slave representation, and therefore as much requires to be proved by additional evidence, as does the representation itself. The reply admits that the slave representation is so groundless, absurd, unequal, and unjust, that it would not be allowable to put that construction upon the clause, if it had provided only for representation. Yet it attempts to support the construction by alleging, without any additional evidence, that the direct taxation, (if there should ever be any direct taxation,) was to be on the same absurd principle. But this is no answer to the objection. It only fortifies it; for it accuses the constitution of two absurdities, instead of one, and does it upon evidence that is admitted to be insufficient to sustain even one. And the argument for slavery does, in reality, accuse the constitution of these two absurdities, without bringing sufficient evidence to prove either of them. Not having sufficient evidence to prove either of these absurdities, independently of the other, it next attempts to make each absurdity prove the other. But two legal absurdities, that are proved only by each other, are not proved at all. And thus this whole fabric of slave representation and slave taxation falls to the ground.
Undoubtedly, if the clause authorizes slave representation, it also authorizes slave taxation; or if it authorizes slave taxation, it undoubtedly authorizes slave representation. But the first question to be settled is, whether it authorizes either? And this certainly is not to be answered in the affirmative, by simply saying that, if it authorizes one, it authorizes the other.
If any one wishes to prove that the clause authorizes slave representation, he must first prove that point independently of the taxation, and then he may use the representation to prove the taxation; or else he must first prove the slave taxation, and then he may use the taxation to prove the representation. But he cannot use either to prove the other, until he has first proved one independently of the other; a thing which probably nobody will ever undertake to do. No one certainly will ever undertake to prove the representation independently of the taxation; and it is doubtful whether any one will ever undertake to prove the taxation, independently of the representation. The absurdity and incongruity of reckoning one single kind of property as persons, in a government and system of taxation founded on persons, are as great as would be that of valuing one single class of persons as property, in a government and system of taxation founded on property. The absurdity and incongruity in each case would be too great to be allowable, if the language would admit, (as in this case it does admit,) of another and reasonable construction.
Nevertheless, if any one should think that this slave taxation is not a thing so absurd or unjust as to forbid that construction, still, the fact that, if that construction be established, the absurd and unjust representation will follow as a consequence from it, is a sufficient reason why it cannot be adopted. For we are bound to make the entire clause harmonious with itself, if possible; and, in doing so, we are bound to make it reasonable throughout, if that be possible, rather than absurd throughout.
I have thus far admitted, for the sake of the argument, the common idea, that the taxation, which the slave construction of this clause would provide for, would be some compensation to the North, for the slave representation. But, in point of fact, it would not necessarily be any compensation at all; for it is only direct taxes that are to be apportioned in this manner, and the government is not required to lay direct taxes at all. Indeed, this same unjust representation, which it is claimed that the clause authorizes, may be used to defeat the very taxation which it is said was allowed as an equivalent for it. So that, according to the slave argument, the unjust representation is made certain, while the compensating taxation is made contingent; and not only contingent, but very likely contingent upon the will of the unjust representation itself. Here, then, are another manifest and gross absurdity and injustice, which the slave construction is bound to overcome, before it can be adopted.
But suppose the taxation had been made certain, so as to correspond with, and compensate for, the representation—what then? The purport of the clause would then have been, that the North said to the South, “We will suffer you to govern us, (by means of an unequal representation,) if you will pay such a portion, (about one sixth,) of our taxes.” Certainly no construction, unless an unavoidable one, is allowable, that would fasten upon the people of the north the baseness and the infamy of having thus bargained away their equal political power for money; of having sold their freedom for a price. But when it is considered how paltry this price was, and that its payment was not even guarantied, or likely ever to be made, such a construction of the contract would make the people of the North as weak and foolish, as infamous and despicable. Is there a man in the whole northern states, that would now consent to such a contract for himself and his children? No. What right, then, have we to accuse all our fathers, (fathers too who had proved their appreciation of liberty by risking life and fortune in its defence,) of doing what none of us would do? No legal rules of interpretation, that were ever known to any decent tribunal, authorize us to put such a construction upon their instrument as no reasonable and honorable man would ever have agreed to. There never lived a man in the northern states, who would have consented to such a contract, unless bribed or moved to it by some motive beyond his proportionate share in such a price. Yet this price is all the motive that can be legally assigned for such a contract; for the general benefits of the Union must be presumed to have been equal to each party. If any difference were allowable in this respect, it must have been in favor of the North, for the South were the weaker party, and needed union much more than the north.
This question has thus far been treated as if the South had really made some pretence, at least, of paying more than her share of taxation. But this is by no means the true mode of presenting the question; because these persons, it must be remembered, whom it is claimed were to be represented and taxed only as three fifths of a person each, were legally free by the then existing State constitutions; and, therefore, instead of being slaves, not entitled to be represented or taxed at all as persons, were really entitled to be represented, and liable to be taxed, as units, equally with the other people of the United States. All this the North must be presumed to have known. The true mode of presenting the question, therefore, is this, viz., 1. Whether the South, for the privilege of enslaving a portion of her people, of holding them in slavery under the protection of the North, and of saving two fifths of her direct taxation upon them, agreed to surrender two fifths of her representation on all she should enslave? and, 2. Whether the North, in order to secure to herself a superiority of representation, consented to the enslavement of a portion of the Southern people, guarantied their subjection, and agreed to abate two fifths of the direct taxation on every individual enslaved? This is the true mode of presenting the subject; and the slave construction of the clause answers these questions in the affirmative. It makes the North to have purchased for herself a superior representation, and to have paid a bounty on slavery, by remitting taxes to which the South would have been otherwise liable; and it makes the South to have chartered away her equal representation, her equal political power—makes her, in fact, to have sold her own liberties to the North, for a pitiful amount of taxation, and the privilege of enslaving a part of her own people.
Such is the contract—infamous on the part of both North and South, and base, suicidal, and servile on the part of the South—which the slave construction would make out of this provision of the constitution. Such a contract cannot be charged upon political communities, unless it be “expressed with irresistible clearness.” Much less can it be done on the evidence of language, which equally well admits of a construction that is rational, honorable, and innocent, on the part of both.
The construction which legal rules require, to wit, that “free persons” mean the citizens, and “all other persons” the aliens, avoids all these obstacles in the way of making this clause an honorable, equal, and reasonable contract.
There are both justice and reason in a partial representation, and a partial taxation, of aliens. They are protected by our laws, and should pay for that protection. But as they are not allowed the full privileges of citizens, they should not pay an equal tax with the citizens. They contribute to the strength and resources of the government, and therefore they should be represented. But as they are not sufficiently acquainted with our system of government, and as their allegiance is not made sufficiently sure, they are not entitled to an equal voice with the citizens, especially if they are not equally taxed.
But it has been argued that aliens were likely to be in about equal numbers in all the States, in proportion to the citizens; and that therefore no great inequality would have occurred, if no separate account had been taken of them. But it is not true that aliens were likely to be in equal numbers in the several States in proportion to the citizens. Those States whose lands were already occupied, like Connecticut, Rhode Island, and Massachusetts, (exclusive of Maine,) and who could not expect to retain even so much as their natural increase of population, could not expect to receive the same additions to it by the immigration of foreigners as New York, Pennsylvania, and other States, that still had immense bodies of unoccupied lands. And none of the old thirteen States could expect long to have the same proportion of aliens as the new States that were to be opened in the west. And even those new States, that were then about to be opened, would soon become old, and filled with citizens, compared with other States that were to be successively opened still further west.
This inequality in the proportion of aliens in the respective States, was then, and still is, likely to be for centuries an important political element; and it would have been weak, imprudent, short-sighted, and inconsistent with the prevailing notions of that time, of all previous time, and of the present time, for the constitution to have made no provision in regard to it. And yet, on the slave hypothesis, the constitution is to be accused of all this weakness, imprudence, short-sightedness, and inconsistency; and, what is equally inadmissible, is to be denied all the credit of the intentions, which, on the alien hypothesis, the clause expresses; intentions, the wisdom, justice, and liberality of which are probably more conspicuous, and more harmoniously blended, than in any other provision in regard to aliens, that any nation on earth ever established, before or since.
It is as unnatural and absurd, in the interpretation of an instrument, to withhold the credit of wise and good intentions, where the language indicates them, as it is to attribute bad or foolish ones, where the language does not indicate them. And hence the positive merits of this clause, on the alien hypothesis, are entitled to the highest consideration; and are moreover to be contrasted with its infamous demerits, on the slave hypothesis.
The preceding view of this clause is strongly confirmed by other parts of the constitution. For example: The constitution allows aliens, equally with the citizens, to vote directly in the choice of representatives to congress, and indirectly for senators and president, if such be the pleasure of the State governments. Yet they are not themselves eligible to these three offices, although they are eligible to all other offices whatsoever under the constitution. All that is required of them is simply the official oath to support the constitution; the same oath that is required of citizens.
Again. The constitution of the United States lays no restraint upon their holding, devising, and inheriting real estate, if such should be the pleasure of the State governments. And in many, if not all, the States, they are allowed to hold, devise, and inherit it.
Now the facts, that they are not restrained by the constitution from holding, devising, and inheriting real estate; that they have the permission of the constitution to vote, (if the State governments shall please to allow them to do so;) and that they are eligible to a part of the offices, but not to all, show that the constitution regards them not as aliens, in the technical sense of that term,but as partial citizens. They indicate that the constitution intended to be consistent with itself throughout, and to consider them, in reality, what this argument claims that it considers them in respect of representation and taxation, viz., as three fifths citizens.
The same reason that would induce the constitution to make aliens eligible to all offices, except the three named, (to wit, those of representative, senator, and president,) and to allow them the right of voting, would also induce it to allow them some right of being counted in making up the basis of representation. On the other hand, the same reasons which would forbid their eligibility, as representatives, senators, and presidents, would forbid their being reckoned equal to citizens, in making up the basis of representation; and would also forbid their votes for those officers being counted as equal to the votes of citizens. Yet a single vote could not be divided so as to enable each alien to give three fifths, or any other fraction, of a vote. Here then was a difficulty. To have allowed the separate States full representation for their aliens, as citizens, while it denied the aliens themselves the full rights of citizenship, (as, for instance, eligibility to the legislative and highest executive offices of the government,) would have been inconsistent and unreasonable. How, then, was this matter to be arranged? The answer is, just as this argument claims that it was arranged, viz., by allowing the aliens full liberty of voting, at the discretion of the State governments, yet at the same time so apportioning the representation among the States, that each State would acquire no more weight in the national government, than if her aliens had each given but three fifths of a vote, instead of a full vote.
In this manner all the inconsistency of principle, which, it has been shown, would have otherwise existed between the different provisions of the constitution, relative to aliens, as compared with citizens, was obviated. At the same time justice was done to the States, as States; also to the citizens, as citizens; while justice, liberality, and consistency were displayed towards the aliens themselves. The device was as ingenious, almost, as the policy was wise, liberal, and just.
Compare now the consistency and reason of this arrangement with the inconsistency and absurdity of the one resulting from the slave hypothesis. According to the latter, the States are allowed the full weight of their aliens, as citizens, in filling those departments of the government, (the legislative and highest executive,) which aliens themselves are not allowed to fill. 2. Aliens are allowed full votes with the citizens in filling offices, to which, (solely by reason of not being citizens,) they are not eligible. 3. And what is still more inconsistent, absurd, and atrocious even, half the States are allowed a three fifths representation for a class of persons, whom such States have made enemies to the nation, and who are allowed to fill no office, are allowed no vote, enjoy no protection, and have no rights in, or responsibility to, the government.
If legal rules require us to make an instrument consistent, rather than inconsistent, with itself, and to give it all a meaning that is reasonable and just, rather than one that is unjust and absurd, what meaning do they require us to give to the constitution, on the point under consideration?
The only imperfection in the constitution on this point seems to be, that it does not secure the elective franchise to aliens. But this omission implies no disfavor of aliens, and no inconsistency with the actual provisions of the constitution; nor is it any argument against the theory here maintained; for neither does the constitution secure this franchise to the citizens, individually, as it really ought to have done. It leaves the franchise of both citizens and aliens at the disposal of the State governments separately, as being the best arrangement that could then be agreed upon, trusting, doubtless, that the large number of aliens in each State would compel a liberal policy towards them.
From this whole view of the subject, it will be seen that the constitution does not, in reality, consider unnaturalized persons as aliens, in the technical sense of that term. It considers them as partial citizens, that is, as three fifths citizens, and two fifths aliens. The constitution could find no single term by which to describe them, and was therefore obliged to use the phrase, “all other persons” than “the free,” that is, “all other persons” than those entitled to full representation, full rights of eligibility to office, and full rights of citizenship generally. The term “alien” would have been a repulsive, unfriendly, and wholly inappropriate one, by which to designate persons who were in fact members of the government, and allowed to participate in its administration on a footing so near to an equality with the citizens. As the word had acquired a technical meaning, indicative of exclusion from office, from suffrage, from the basis of representation, and from the right of holding real estate, its use in the constitution would have served to keep alive prejudices against them, and would have been made a pretext for great illiberality and injustice towards them. Hence the constitution nowhere uses the word.
How much more reasonable in itself, and how much more creditable to the constitution and the people, is this mode of accounting for the use of the words “all other persons,” than the one given by the advocates of slavery, viz., that the people had not yet become sufficiently shameless to avow their treason to all the principles of liberty for which they had been distinguished, and, therefore, instead of daring to use the word “slaves,” they attempted to hide their crime and infamy under such a fig-leaf covering as that of the words “all other persons.” But the law knows nothing of any such motives for using unnatural and inappropriate terms. It presumes that the term appropriate for describing the thing is used when that term is known—as in this case it was known, if the things intended to be described were slaves.
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.
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:—
“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 those bound to service for a term of years, and excluding Indians not taxed,) three fifths of all other persons.”
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.
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.
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.
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.
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.
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.
It is a common assertion that the general government has no power over slavery in the States. If by this be meant that the States may reduce to slavery the citizens of the United States within their limits, and the general government cannot liberate them, the doctrine is nullification, and goes to the destruction of the United States government within the limits of each State, whenever such State shall choose to destroy it.
The pith of the doctrine of nullification is this, viz., that a State has a right to interpose between her people and the United States government, deprive them of its benefits, protection, and laws, and annul their allegiance to it.
If a State have this power, she can of course abolish the government of the United States at pleasure, so far as its operation within her own territory is concerned; for the government of the United States is nothing, any further than it operates upon the persons, property, and rights of the people. If the States can arbitrarily intercept this operation, can interpose between the people and the government and laws of the United States, they can of course abolish that government. And the United States constitution, and the laws made in pursuance thereof, instead of being “the supreme law of the land,” “anything in the constitution or laws of any State to the contrary notwithstanding,” are dependent entirely upon the will of the State governments for permission to be laws at all.
A State law reducing a man to slavery, would, if valid, interpose between him and the constitution and laws of the United States annul their operation, (so far as he is concerned,) and deprive him of their benefits. It would annul his allegiance to the United States; for a slave can owe no allegiance to a government that either will not, or cannot protect him.
If a State can do this in the case of one man, she can do it in the case of any number of men, and thus completely abolish the general government within her limits.
But perhaps it will be said that a State has no right to reduce to slavery the people generally within her limits, but only to hold in slavery those who were slaves at the adoption of the constitution, and their posterity.
One answer to this argument is, that, at the adoption of the constitution of the United States, there was no legal or constitutional slavery in the States. Not a single State constitution then in existence, recognized, authorized, or sanctioned slavery. All the slaveholding then practised was merely a private crime committed by one person against another, like theft, robbery, or murder. All the statutes which the slaveholders, through their wealth and influence, procured to be passed, were unconstitutional and void, for the want of any constitutional authority in the legislatures to enact them.
But perhaps it will be said, as is often said of them now, that the State governments had all power that was not forbidden to them. But this is only one of those bald and glaring falsehoods, under cover of which, even to this day, corrupt and tyrannical legislators enact, and the servile and corrupt courts, who are made dependent upon them, sustain, a vast mass of unconstitutional legislation, destructive of men’s natural rights. Probably half the State legislation under which we live is of this character, and has no other authority than the pretence that the government has all power except what is prohibited to it. The falsehood of the doctrine is apparent the moment it is considered that our governments derive all their authority from the grants of the people. Of necessity, therefore, instead of their having all authority except what is forbidden, they can have none except what is granted.
Everybody admits that this is the true doctrine in regard to the United States government; and it is equally true of the State governments, and for the same reason. The United States constitution, (amendment 10,) does indeed specially provide that the U. S. government shall have no powers except what are delegated to it. But this amendment was inserted only as a special guard against usurpation. The government would have had no additional powers if this amendment had been omitted. The simple fact that all a government’s powers are delegated to it by the people, proves that it can have no powers except what are delegated. And this principle is as true of the State governments, as it is of the national one; although it is one that is almost wholly disregarded in practice.
The State governments in existence in 1789 purported to be established by the people, and are either declared, or must be presumed, to have been established for the maintenance of justice, the preservation of liberty, and the protection of their natural rights. And those governments consequently had no constitutional authority whatever inconsistent with these ends, unless some particular powers of that kind were explicitly granted to them. No power to establish or sustain slavery was granted to any of them. All the slave statutes, therefore, that were in existence in the States, at the adoption of the United States constitution, were unconstitutional and void; and the people who adopted the constitution of the United States must be presumed to have known this fact, and acted upon it, because everybody is presumed to know the law. The constitution of the United States, therefore, can be presumed to have made no exceptions in favor of the slavery then existing in the States.
But suppose, for the sake of the argument, that slavery had been authorized by the State constitutions at the time the United States constitution was adopted, the constitution of the United States would nevertheless have made it illegal; because the United States constitution was made “the supreme law of the land,” “anything in the constitution or laws of any State to the contrary notwithstanding.” It therefore annulled everything inconsistent with it, then existing in the State constitutions, as well as everything that should ever after be added to them, inconsistent with it. It of course abolished slavery as a legal institution, (supposing slavery to have had any legal existence to be abolished,) if slavery were inconsistent with anything expressed, or legally implied, in the constitution.
Slavery is inconsistent with nearly everything that is either expressed or legally implied in the constitution. All its express provisions are general, making no exception whatever for slavery. All its legal implications are that the constitution and laws of the United States are for the benefit of the whole “people of the United States,” and their posterity.
The preamble expressly declares that “We the people of the United States” establish the constitution for the purpose of securing justice, tranquillity, defence, welfare, and liberty, to “ourselves and our posterity.” This language certainly implies that all “the people” who are parties to the constitution, or join in establishing it, are to have the benefit of it, and of the laws made in pursuance of it. The only question, then, is, who were “the people of the United States?”
We cannot go out of the constitution to find who are the parties to it. And there is nothing in the constitution that can limit this word “people,” so as to make it include a part, only, of “the people of the United States.” The word, like all others, must be taken in the sense most beneficial for liberty and justice. Besides, if it did not include all the then “people of the United States,” we have no legal evidence whatever of a single individual whom it did include. There is no legal evidence whatever in the constitution, by which it can be proved that any one man was one of “the people,” which will not also equally prove that the slaves were a part of the people. There is nothing in the constitution that can prove the slaveholders to have been a part of “the people,” which will not equally prove the slaves to have been also a part of them. And there is as much authority in the constitution for excluding slaveholders from the description, “the people of the United States,” as there is for excluding the slaves. The term “the people of the United States” must therefore be held to have included all “the people of the United States,” or it can legally be held to have included none.
But this point has been so fully argued already, that it need not be dwelt upon here.
The United States government, then, being in theory formed by, and for the benefit of, the whole “people of the United States,” the question arises, whether it have the power of securing to “the people” the benefits it intended for them? Or whether it is dependent on the State governments for permission to confer these benefits on “the people?” This is the whole question. And if it shall prove that the general government has no power of securing to the people its intended benefits, it is, in no legal or reasonable sense, a government.
But how is it to secure its benefits to the people? That is the question.
The first step, and an indispensable step, towards doing it, is to secure to the people their personal liberty. Without personal liberty, none of the other benefits intended by the constitution can be secured to an individual, because, without liberty, no one can prosecute his other rights in the tribunals appointed to secure them to him. If, therefore, the constitution had failed to secure the personal liberty of individuals, all the rest of its provisions might have been defeated at the pleasure of the subordinate governments. But liberty being secured, all the other benefits of the constitution are secured, because the individual can then carry the question of his rights into the courts of the United States, in all cases where the laws or constitution of the United States are involved.
This right of personal liberty, this sine qua non to the enjoyment of all other rights, is secured by the writ of habeas corpus. This writ, as has before been shown, necessarily denies the right of property in man, and therefore liberates all who are restrained of their liberty on that pretence, as it does all others that are restrained on grounds inconsistent with the intended operation of the constitution and laws of the United States.
Next after providing for the “public safety, in cases of rebellion and invasion,” the maintenance of courts for dispensing the privileges of this writ is the duty first in order, and first in importance, of all the duties devolved upon the general government; because, next after life, liberty is the right most important in itself; it is also indispensable to the enjoyment of all the other rights which the general government is established to secure to the people. All the other operations of government, then, are works of mere supererogation until liberty be first secured; they are nothing but a useless provision of good things for those who cannot partake of them.
As the government is bound to dispense its benefits impartially to all, it is bound, first of all, after securing “the public safety, in cases of rebellion and invasion,” to secure liberty to all. And the whole power of the government is bound to be exerted for this purpose, to the postponement, if need be, of everything else save “the public safety, in cases of rebellion and invasion.” And it is the constitutional duty of the government to establish as many courts as may be necessary, (no matter how great the number,) and to adopt all other measures necessary and proper, for bringing the means of liberation within the reach of every person who is restrained of his liberty in violation of the principles of the constitution.
We have thus far, (in this chapter,) placed this question upon the ground that those held in slavery are constitutionally a part of “the people of the United States,” and parties to the constitution. But, although this ground cannot be shaken, it is not necessary to be maintained, in order to maintain the duty of Congress to provide courts, and all other means necessary, for their liberation.
The constitution, by providing for the writ of habeas corpus, without making any discrimination as to the persons entitled to it, has virtually declared, and thus established it as a constitutional principle, that, in this country, there can be no property in man; for the writ of habeas corpus, as has before been shown, necessarily involves a denial of the right of property in man. By declaring that the privilege of this writ “shall not be suspended, unless when, in cases of rebellion or invasion the public safety may require it,” the constitution has imposed upon Congress the duty of providing courts, and if need be, other aids, for the issuing of this writ in behalf of all human beings within the United States, who may be restrained on claim of being property. Congress are bound by the constitution to aid, if need be, a foreigner, an alien, an enemy even, who may be restrained as property. And if the people of any of the civilized nations were now to be seized as slaves, on their arrival in this country, we can all imagine what an abundance of constitutional power would be found, and put forth, too, for their liberation.
Without this power, the nation could not sustain its position as one of the family of civilized nations; it could not fulfil the law of nations, and would therefore be liable to be outlawed in consequence of the conduct of the States. For example. If the States can make slaves of anybody, they can certainly make slaves of foreigners. And if they can make slaves of foreigners, they can violate the law of nations; because to make slaves of foreigners, is to violate the law of nations. Now the general government is the only government known to other nations; and if the States can make slaves of foreigners, and there were no power in the general government to liberate them, any one of the States could involve the whole nation in the responsibility of having violated the law of nations, and the nation would have no means of relieving itself from that responsibility by liberating the persons enslaved; but would have to meet, and conquer or die in, a war brought upon it by the criminality of the State.
This illustration is sufficient to prove that the power of the general government to liberate men from slavery, by the use of the writ of habeas corpus, is of the amplest character; that it is not confined to the cases of those who are a part of “the people of the United States,” and so parties to the constitution; that it is limited only by the territory of the country; and that it exists utterly irrespective of “anything in the constitution or laws of any State.”
This power, which is bound to be exerted for the liberation of foreigners, is bound to be exerted also for the liberation of persons born on the soil, even though it could be proved, (which it cannot,) that they are not legally parties to the constitution. The simple fact of their not being parties to the constitution, (if that fact were proved,) would no more alter the power or duty of Congress in relation to securing them the privilege of the writ of habeas corpus, than the same fact does in the case of foreigners, who confessedly are not parties to the constitution; unless, indeed, their coming into the country under the guaranty afforded by the habeas corpus clause of the constitution makes them, so far, parties to it. But this clause could operate as no guaranty of liberty to foreigners, unless it guarantied liberty to all born on the soil; for, there being no distinction of persons made, it certainly could not be claimed that it guarantied greater privileges to foreigners than to the least favored of those born on the soil. So that it will still result that, unless the constitution, (as it may be executed by the general government alone,) guaranties personal liberty to all born in the country, it does not guaranty it to foreigners coming into the country; and if it do not guaranty it to foreigners coming into the country, any single State, by enslaving foreigners, can involve the whole nation in a death struggle in support of such slavery.
If these opinions are correct, it is the constitutional duty of Congress to establish courts, if need be, in every county and township even, where there are slaves to be liberated; to provide attorneys to bring the cases before the courts; and to keep a standing military force, if need be, to sustain the proceedings.
In addition to the use of the habeas corpus, Congress have power to prohibit the slave trade between the States, which, of itself, would do much towards abolishing slavery in the northern slaveholding States. They have power also to organize, arm, and discipline the slaves as militia, thus enabling them to aid in obtaining and securing their own liberty.
[The following article was first published in 1850, as an appendix to an argument, entitle: “A Defence for Fugitive Slaves,against the Acts of Congress of February, 12, 1793 and September 18, 1850. ByLysander Spooner.” It repeats some ideas already advanced in the preceding pages; but, as it is mostly new, it has been thought worthy of preservation by being included in this volume.]
In the preceding chapters it has been admitted, for the sake of the argument, that the constitution, and 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 fulfilment 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 anything,—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 anything “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 they do 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 slave.
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. I. 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 anybody and everybody, 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 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, everybody, 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 include also 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 deseription 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 strong 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 reëxaminable. 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 parole 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 statesmen, 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., 287 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. Sherman 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 and Mr. Randolph 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 four men—Madison, Randolph, 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 afterward, 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 forty-second 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 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, agreeably 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.—Respublica 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 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 1817 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 and 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 the 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 service or labor 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 recognitionsof 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” became 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,” says 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 prohibited 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.
Those who believe that slavery is unconstitutional, are the only persons who propose to abolish it. They are the only ones who claim to have the power to abolish it. Were the entire North to become abolitionists, they would still be unable to touch the chain of a single slave, so long as they should concede that slavery was constitutional. To say, as many abolitionists do, that they will do all they constitutionally can towards abolishing slavery, is virtually saying that they will do nothing, if they grant, at the same time, that the constitution supports slavery. To suppress the slave trade between the States, as some propose, is certainly violating the spirit, and probably the law, of the constitution, if slavery be constitutional. To talk of amending the constitution, by the action of three fourths of the States, so as to abolish slavery, is to put off the matter to some remote and unknown period. While abolitionists are amusing themselves with these idle schemes for abolishing slavery without the agency of any adequate means, slaves are doubling in numbers every twenty-five years, and the slave power is rapidly increasing in numbers, wealth, and territory. To concede that this power is entrenched behind the constitution, is, in the minds of practical men, to concede the futility of all efforts to destroy it. And its effect is to dissuade the great body of the North from joining in any efforts to that end. The mass of men will insist upon seeing that a thing can be done, before they will leave the care of their other interests to assist in doing it. Hence the slow progress of all political movements based on the admission that slavery is constitutional. What sense would there be in placing the political power of the country in the hands of men, who can show nothing that they can do with it towards accomplishing the end for which they ask it? Abolitionists, therefore, who ask political power, and yet concede slavery to be constitutional, stand in the attitude of men asking for power for their own gratification, and not for any great practical good that they can do with it. Let them but show that they can abolish slavery, and they can then consistently ask that the government be intrusted to their hands.
The North, with no very important exceptions, although not enthusiastic in the matter, are abolitionists at heart. It is a slander on human nature to assert that they are not. To suppose that a people, themselves the freest in the world, having no pecuniary interests that bind them to slavery, inheriting all the principles of English liberty, and living for the last seventy years under the incessant teachings of the truth that all men are born free and equal—to suppose that such a people, as a people, are not opposed to slavery, is equivalent to supposing that they are naturally incapable of such a sentiment as the love of liberty, or the hatred of oppression. If the supposition were correct, it would furnish an argument against all further effort of any kind; for the task of radically changing human nature, for the purpose of abolishing slavery, is one quite too chimerical for rational men to engage in.
If the North love slavery, why did they unite to abolish the slave trade? or to exclude slavery from the north-western States? And why do they not have slaves themselves?
The people of the North want simply to know if they can do anything for the abolition of slavery, without violating their constitutional faith. For this alternative they are not prepared, (as I admit they ought to be, if they had ever pledged themselves to the support of slavery;) but they are prepared for almost anything short of that. At any rate, they are prepared to stand by the constitution, if it supports liberty. If it he said that they are not, the speediest process by which to bring them to that state of preparation, is to prove to them that slavery is unconstitutional, and thus present to them the alternative of overthrowing the constitution for the support of slavery, or of standing by it in support of freedom.
In a speech at Charleston, on the 9th of March last, (1847,) Mr. Calhoun gave the following estimate of popular feeling at the North, on the subject of slavery:—
He said, “They, (the people of the North,) may, in reference to the subject under consideration, be divided into four classes. Of these, the abolitionists proper—the rabid fanatics, who regard slavery as a sin, and thus regarding it, deem it their highest duty to destroy it, even should it involve the destruction of the constitution and the Union—constitute one class. It is a small one, not probably exceeding five per cent. of the population of those States. They voted, if I recollect correctly, about fifteen thousand, or, at most, twenty thousand votes in the last test of their strength, in the State of New York, out of about four hundred thousand votes, which would give about five per cent. Their strength in that State, I would suppose, was fully equal to their average strength in the non-slaveholding States generally.
“Another class consists of the great body of the citizens of those States, constituting at least seven tenths of the whole, who, while they regard slavery as an evil, and as such, are disposed to aid in restricting and extirpating it, when it can be done consistently with the constitution, and without endangering the peace and prosperity of the country, do not regard it as a sin to be put down by all and every means.
“Of the two others, one is a small class, perhaps, not exceeding five per cent. of the whole, who view slavery as we do, more as an institution, and the only one, by which two races, so dissimilar as those inhabiting the slaveholding States, can live together in equal numbers, in peace and prosperity, and that its abolition would end in the expatriation of one or the other race. If they regard it as an evil, it is in the abstract, just as government and all its burdens, labor with all its toils, punishment with all its inflictions, and thousands of other things, are evils, when viewed in the abstract, but far otherwise when viewed in the concrete, because they prevent a greater amount of evil than what they inflict, as is the case with slavery as it exists with us.
“The remaining class is much larger, but still relatively a small one, less, perhaps, than twenty per cent. of the whole, but possessing great activity and political influence in proportion to its numbers. It consists of the political leaders of the respective parties, and their partisans and followers. They, for the most part, are perfectly indifferent about abolition, and are ready to take either side, for or against, according to the calculation of the political chances, their great and leading object being to carry the elections, especially the presidential, and thereby receive the honors and emolument, incident to power, both in the Federal and State governments.”
This estimate is probably sufficiently accurate for all practical purposes. Adopting it as correct, it shows that five per cent. only of the North sympathize with the South; that the other ninety-five per cent., (seventy-five per cent. acting from principle, and twenty per cent. for spoils,) “are disposed to aid in restricting and extirpating slavery, when it can be done consistently with the constitution, and without endangering the peace and prosperity of the country.”
The South has long been teaching the North, (and more of late than ever,) how much the maintenance of slavery has to do with promoting “the peace and prosperity of the country.” The lesson is learned. The only other point is the constitution. The North have but to have their eyes opened to the great constitutional fraud that has been perpetrated upon the country, to be found, ninety-five per cent. of them, on the side of liberty. When the North are united, they will control the national legislation, and the appointment of the national judiciary. Of course they will then abolish slavery. Does not this prove that the only labor the abolitionists really have to perform, is to spread the truth in regard to the constitution? And should they not adopt such measures as will compel public attention to, and a speedy decision of, that question?
How shall they do this? Probably, the most speedy and effectual mode of awaking the whole nation to the question is, by stirring up discussions of it in the national and State legislatures, by means of petitions.
The subject admits of petitions of a variety of kinds. To some of them the signatures of a very large portion of the people of the North might now be obtained: while others would be signed only by the more thoroughgoing abolitionists.
Who would not sign a petition praying Congress to inform the people whether slavery had any constitutional existence in the States at the time the United States constitution was adopted?
Who would not sign a petition praying Congress to inform the people what was the meaning of the word “free,” in the English law? In the colonial charters? In the State constitutions, existing in 1789, in the States of Georgia, South Carolina, North Carolina, Delaware, and in the Articles of Confederation? And whether Congress and the courts were not bound to give it the same meaning in the representative clause of the constitution of the United States?
Who would not sign a petition praying Congress to inform the people whether any person, born in the country since the adoption of the constitution of the United States, can, consistently with that constitution, be held as a slave?
Who would not sign a petition praying Congress to inform the people whether the Supreme Court of the United States have ever given any, and if any, what, valid reasons for holding slavery to be constitutional?
Other petitions would be signed by smaller numbers of the people, such as the following:—
1. Petitions praying Congress to establish courts throughout the slaveholding States, in such numbers, and aided by such agents and attorneys, as may be necessary to bring the privileges of the writ of habeas corpus within the reach of every slave.
2. Petitions for the suppression of the slave trade between the States.
3. Petitions for organizing, arming, and disciplining the slaves as militia.
4. Petitions for having the next census distinguish the respective numbers of citizens and unnaturalized persons, and for basing the next representation upon them, counting the citizens as units, and the unnaturalized persons as three fifths units.
5. Petitions for the abolition of indirect taxation, and the apportionment of direct taxation among the States, counting the citizens as units, and the unnaturalized persons as three fifths.
The general question of the unconstitutionality of slavery should also be pressed upon the consideration of the State legislatures, by means of petitions. The opinions of these legislatures are important for these reasons:
1. The State legislatures choose the U. S. senators, and thus have a voice in the national legislation, and in the appointment of the national judiciary.
2. The free States, so called, are not free. They are liable to the incursions of the slave-hunter. They should be made free.
3. Several of the nominally free States have, on their statute-books, what are called “Black Laws,” which are all unconstitutional.
It is not very infrequent for legislative bodies to ask the opinions of their co-ordinate judiciaries on important questions of law. Let the State legislatures be petitioned to ask the opinions of the State judges, that we may have the opinions of the entire judiciary of the North, on this question of the constitutionality of slavery; each judge being requested to give his opinion separately, and independently of precedents.
If only a small number should at first give their opinions in favor of liberty, it would awaken universal interest in the question.
If any considerable number, influential for their talents and integrity, should give their opinions in favor of liberty, it would change the opinions of the North on this question, as it were, instantaneously.
If they should give their opinions in favor of slavery, and should give their reasons for their opinions, their reasons will be likely to pass for what they are worth. If sound, they will stand; if false, they will expose the weakness of their position, and will speedily be swept away.
If they should give their opinions in favor of slavery, and should give no reasons for their opinions, they will thereby disclose their own characters, and indicate the falsehood of their assumptions for slavery.
In order that these appeals to Congress, the State legislatures, and the courts, may be effectual, all representatives, senators, and judges should be furnished with all the evidence on which abolitionists rely for proving slavery unconstitutional.
Senators, representatives, and judges are but the servants of the people. They all swear to support the constitution of the United States. The people have a right to know how these servants understand that constitution; and to know specifically their reasons, if they have any, for officially conceding that it legalizes slavery. They are especially responsible for the freedom of their own States, and should be held to that responsibility. These agents, then, have no right to complain at having these questions addressed to them. Should they complain of it, or refuse to answer, they will thereby furnish evidence of the necessity there was for asking the questions.
Another reason why these public servants ought not to be embarrassed at having these questions addressed to them, is, that in making their answers, they will have the benefit of all the reasons ever given in support of the constitutionality of slavery, by the Supreme Court of the United States, if they can find them.
Some timid persons may imagine that if this question be pressed to a decision, and that decision should be against slavery, the result will be a dissolution of the Union. But this is an ignorant and ridiculous fear. The actual slaveowners are few in number, compared with the slaves and non-slaveholders of the South. The supposed guaranty of the constitution to slavery is the great secret of their influence at home, as well as at the North. It is that that secures their wealth and their political power. The simple agitation of the question of the unconstitutionality of slavery will strike a blow at their influence, wealth, and power, that will be felt throughout the South, and tend to separate the non-slaveholders from them. It is idle to suppose that the non-slaveholders of the South are going to sacrifice the Union for the sake of slavery. Many of them would hail as the highest boon a constitutional deliverance from slaveholding oppressions. And when the question shall be finally settled against the constitutionality of slavery, the slaveholders will find themselves deserted of all reliable support; the pecuniary value of their slaves will have vanished before the prospect of a compulsory emancipation; and this slave power, that has so long strode the country like a colossus, will sink into that contempt and insignificance, both at home and abroad, into which tyrants, so mean and inhuman, always do sink, when their power is broken. They will hardly find a driver on their plantations servile enough, or fool enough, to go with them for a dissolution of the Union.