Works of Lysander Spooner vol. 3

A Few friends of freedom, who believe the Constitution of the United States to be a sufficient warrant for giving liberty to all the people of the United States, make the following appeal against any support being given to the Republican Party at the ensuing election.

NOTE TO SECOND EDITION.

Although this address was published previous to the late presidential election, and was designed to have an effect upon it, it nevertheless contains constitutional opinions, which are deemed of permanent importance, and worthy of preservation. The opinions it expresses in regard to the Republican party will also be pertinent so long as that party shall occupy the grounds it has hitherto done.

I.

The real question, that is now convulsing the nation, is not—as the Republican party would have us believe—whether slaves shall be carried from the States into the Territories? but whether anywhere, within the limits of the Union, one man shall be the property of another?

Whether a man, who is confessedly to be held as property, shall be so held in one place, rather than in another? in a State, rather than in a Territory? is a frivolous and impertinent question, in which the man himself can have no interest, and which is unworthy of a moment’s consideration at this time, if not at all times. If he is to be a slave at all, the locality in which he is to be held, is a matter of no importance to him, and of little or no importance to the nation at large, or any of its people.

If there are to be slaves in the country, a humane man, instead of feeling himself degraded by their presence, would desire to have them in his neighborhood, that he might give them his sympathy, and if possible ameliorate their condition. And the man, who, like the Republican party, consents to the existence of slavery, so long as the slaves are but kept out of his sight, is at heart a tyrant and a brute. And if, at the same time, like the more conspicuous members of that party, he makes loud professions of devotion to liberty and humanity, he thereby just as loudly proclaims himself a hypocrite. And those Republican politicians, who, instead of insisting upon the liberation of the slaves, maintain, under the name of State Rights, the inviolability Edition: current; Page: [4] of the slaveholder’s right of property in his slaves, in the States, and yet claim to be friends of liberty, because they cry, “Keep the slaves where they are;” “No removal of them into the Territories;” “Bring them not into our neighborhood,”—are either smitten with stupidity, as with a disease, or, what is more probable, are nothing else than selfish, cowardly, hypocritical, and unprincipled men, who, for the sake of gaining or retaining power, are simply making a useless noise about nothing, with the purpose of diverting men’s minds from the true issue, and of thus postponing the inevitable contest, which every honest and brave man ought to be ready and eager to meet at once.

II.

We repeat, that the true issue before the country—the one which sooner or later must be met—is nothing less than this: Shall any portion of the people of the United States be held as property at all?

So far as the practical solution of this question depends upon existing political institutions, it depends mainly upon the constitution of the United States.

If the constitution of the United States—“the supreme law of the land”—declares A to be a citizen of the United States (we use the term citizen in its technical sense) then, constitutionally speaking, he is a citizen of the United States everywhere throughout the United States,—“any thing in the constitution or laws of any State to the contrary notwithstanding;” and no State law or constitution can depose him from that status, or deprive him of the enjoyment of the least of those rights, which the national constitution guarantees to the citizens of the United States.

If, on the other hand, that same “supreme law” declares him to be property, then, constitutionally speaking, he is property everywhere under that law; and his owner may, by virtue of that law, carry him, as property, into any and every State in the Union, and there hold him as a slave forever,—“any thing in the constitutions or laws of such States to the contrary notwithstanding.”

There can, therefore, be no such distinction made between the States, as that of free and slave States. All are alike free, or all are alike slave, States. They must all necessarily be either the one or the other; since the constitution of the United States, being “the supreme law” over all alike, must necessarily determine, in all alike, the status of each individual therein, relative to that “supreme law.” In other words, the constitution of the United States, and not any constitutions or laws of the States, must determine, in the case of each and every individual, whether he be a citizen of the United States, and entitled to the benefits and protection of the national government, or not. If it determines that any particular person is a citizen of the United States, entitled to the benefits and protection of the national government, then certainly he cannot be deprived of such citizenship, or of the protection and benefits which that citizenship implies, by any subordinate or State government; for, in that case, the constitution of the United States would not be “the supreme law of the land.” If, on the contrary, the constitution of the United States determines that any particular individual (native or naturalized) is not a citizen of the United States, nor entitled to the benefits and protection of the national government, it can do so only because it has itself declared him to be property; since that is the only cause that can prevent his being a citizen of the United States, and entitled, as such citizen, to the benefits and protection of the government of the United States. The declaration of no subordinate law, that he is property, can break the force of that “supreme law,” which declares everybody (native and naturalized) a citizen, whom it does not itself declare to be a slave.

The government of the United States cannot act directly upon the State governments, as governments, requiring them to do this, and forbidding them to do that. It must, therefore, act directly upon individuals; else it cannot act at all. It is practically a government only so far as it does operate upon individuals. It must necessarily know, by virtue of the United States constitution, the individuals upon whom it is to operate; otherwise it would be in the situation of a government not knowing its own citizens, and consequently not knowing to whom its own duties were due.

The rights, which the general government secures to the people, are as much personal rights, and come home to each separate individual as directly and fully as do the rights secured to them by the State governments. And the rights secured to the people by the national government, as much imply personal liberty, on the part of the people, as do the rights secured to them by the State governments; for, without personal liberty, the former rights can no more be enjoyed than the latter. Hence the indispensable necessity that the general government should know, for itself, independently of the State governments, who are, and who are not (if any are not) citizens of the United States; for otherwise, we repeat, it cannot know to whom its own duties are due.

To say that it rests with the State governments to decide upon whom the United States government shall act, or upon whom it shall confer its protection or benefits, is equivalent to saying that “the supreme law” is dependent upon the arbitrary will of subordinate laws, for permission to operate at all as a law. It is consequently equivalent to saying that the subordinate law may nullify the supreme law, and exclude it from a State altogether, by simply declaring that no persons whatever, within the State, shall be citizens of the United States; and consequently that there shall be no persons, within the State, upon whom the supreme law can operate, or upon whom it shall confer its benefits.

We repeat the proposition, that, if the State constitutions or laws can determine who may, and who may not, be citizens of the United States, and enjoy the benefits of the United States government, each State may nullify the constitution, government, and laws of the United States, within such State, by declaring that there shall be, within the State, no citizens of the United States, to enjoy those benefits, or upon whom the laws of the United States shall operate.

It is, therefore, indispensable to the existence and operation of the government of the United States, that the constitution of the United States shall itself determine upon whom the United States government shall operate, and who are its citizens, “any Edition: current; Page: [7] thing in the constitutions or laws of the States to the contrary notwithstanding;” and that the State laws and constitutions shall be allowed to have nothing to do with the matter.

To say that a State can make a man a slave, is only another mode of saying that a State can deprive the United States of a citizen, and abolish the government of the United States, so far as that citizen is concerned. And to say that a State can deprive the United States of one citizen, is equivalent to saying that a State can deprive the government of the United States of all its citizens, within the State. And to say that a State can deprive the government of the United States of all its citizens, within the State, is equivalent to saying that the State can entirely abolish the United States government, within such State. This is the necessary conclusion of the doctrine, that the States can make a slave of any individual, who would otherwise be a citizen of the United States.

If all the people of the States were made slaves, plainly the United States government would have no citizens, upon whom it could operate; and it would, therefore, be virtually abolished. And, in just so far as the people of the United States are made slaves, in just so far is the United States government abolished.

This whole theory, therefore, that the States have a right to make slaves of the people of the United States, is nothing less than a theory that the States have the right to abolish the government of the United States, by withdrawing individuals from the operation of its laws.

To say, as is constantly done, that the United States constitution “recognizes,” as slaves, those whom the States may declare to be slaves, is equivalent to charging the constitution with the absurdity of recognizing the right of the States to make slaves of the citizens of the United States. And to say that the constitution of the United States recognizes the right of the States to make slaves of the citizens of the United States, is equivalent to charging it with the absurdity of actually recognizing the right of each separate State to abolish the government of the United States, within such State.

It therefore results that the constitution of the United States, Edition: current; Page: [8] “the supreme law of the land,” must necessarily fix the status of every individual relatively to that law; and that, in fixing the status of each and every individual, relatively to that law—that is, in determining whether an individual shall be a citizen of the United States or not,—it necessarily fixes his status as a freeman, or a slave.

And it necessarily does this independently of, and in defiance of, any subordinate or State law; for otherwise it could not be “supreme.”

To say that the national constitution is “the supreme law of the land,” and yet that it depends upon each of thirty-three State governments to say upon whom that supreme law shall operate, or whom it shall protect, is as absurd as it would be to say that one man is an absolute monarch over thirty-three States, and yet that he is wholly dependent upon the consent of thirty-three subordinate princes, for permission to rule over his own subjects.

If the constitution, laws, and government of the United States are to be limited, in their operation within each State, to such individuals as the States respectively may designate, then each State may, so far as its own territory is concerned, determine who may, and who may not, send and receive letters by the United States mail; who may, and who may not, go into a United States custom-house for purposes of commerce; who may, and who may not, go into a United States court-house; and so on. If this were the true relation between our general and State governments, then the United States constitution, instead of declaring that “this constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding,” ought to have declared that this constitution, and the laws and treaties made by the United States in pursuance thereof, shall have effect, within each State, only so far as such State shall consent, or only upon such individuals as such State shall designate.

III.

Another proof that the general government must determine for itself, independently of the State governments, who are, and who are not, citizens of the United States, is found in that provision of the constitution, which declares that “the United States shall guarantee to every State of this Union a republican form of government.”

Although the constitution presumes that the State governments will be representative governments, yet this provision for “a republican form of government” certainly requires that the United States shall guarantee to the States something more than a mere representative government; for a government may be a representative government, and yet the constituent body—or the body enjoying the right of suffrage—be so small, and the principles of the government so exclusive and arbitrary, as to make the government a perfect tyranny, as to the great body of the people. A guaranty, therefore, of a representative government simply, would have been of no practical value to the people.

It is plain, too, from another part of the constitution, that the constitution does not mean to imply that a representative form of government is necessarily a republican form of government; because if it did, it would have made some specific provision as to the extent of the suffrage to be enjoyed by the constituent body. Whereas it leaves that matter to be regulated at the discretion of the States respectively.*

It is certain, therefore, that the “republican form of government,” which the United States are bound to guarantee to the States, is something essentially different from, and more than, a representative government, representing such portions only of the whole people as may chance to get the power of a State into their hands, wielding it arbitrarily for their own purposes.

What, then, is implied in this “republican form of government?” Edition: current; Page: [10] This certainly, if no more, is implied—for this must necessarily be implied in the very terms, “a republican form of government,”—viz., that at least all the members of the republic shall enjoy the protection of the laws.

Whatever other disagreements there may be in men’s minds, as to the essential requisites of “a republican form of government,” certainly no man in his senses can deny so self-evident a proposition as this,—that such a government necessarily implies that all the acknowledged members of the republic must be under the protection of the laws.

This being admitted, it follows that the United States must guarantee to each State a government, that shall give the protection of the laws to all the acknowledged members or citizens of the State.

But who are the acknowledged members or citizens of a State? We answer, that, whomsoever else they may, or may not, include, they must certainly include all the citizens of the United States, within the State. This must necessarily be so; because it would be absurd to suppose that those people, in the various States, who united to form the national government, and thereby made themselves citizens of the United States, would also unite to guarantee a republican form of government for each of the separate States, unless they themselves were personally to have the benefit of this guaranty. It certainly cannot be supposed that they would be so foolish and suicidal as to unite to guarantee to others a government within the States, the benefits of which could be denied to themselves, or the power of which could be turned against themselves for purposes of oppression.

This guaranty, then, on the part of the United States, of a “republican form of government” for each State, is a guaranty of a government, under which at least all the citizens of the United States, within the State, shall have the protection of the laws.

From this proposition it follows inevitably that the United States government must determine, independently of the State government, who are the citizens of the United States, within a State; for, otherwise, it could not know when it had fulfilled this guaranty to them of the protection of a republican form of government. Edition: current; Page: [11] The guaranty itself might be wholly or partially defeated, at the pleasure of the State government, if it were left to the State government itself to determine who were, and who were not, among those citizens of the United States, within the State, for whose benefit this guaranty had been made. And the State government might very likely have great motive to defeat the guaranty, either in whole or in part.

It must be borne in mind that this guaranty of a republican form of government to the citizens of the United States, within a State, is a guaranty against the oppressions of any anti-republican form of government, that may succeed in obtaining power in a State. Yet clearly the United States could not protect its own citizens against such anti-republican government within the States, unless it could determine, independently of the State governments, who its own citizens, within the States, were.

We insist that this argument is entirely conclusive to prove that the United States Government must determine, for itself, who are its own citizens within the respective States; and that the constitutions and laws of the States themselves can have nothing whatever to do with the matter.

IV.

Still further proof that the constitution of the United States, and not the constitution or laws of the States, controls the citizenship of every person born in the country, is found in the fact that a simple act of congress is acknowledged by all to be sufficient, in defiance of all State laws and constitutions, to confer the privilege of United States citizenship upon persons of foreign birth. It would certainly be very absurd to give to congress such a power in regard to foreigners, if neither the United States constitution, nor the United States government had any similar power in regard to the natives of the country; for, in that case, the constitution would do more for foreigners than for natives.

V.

We therefore hold it demonstrable, at least, if not self-evident, that the constitution of the United States, “the supreme Edition: current; Page: [12] law of the land,” must, simply by virtue of its supremacy, fix the status of every individual in the United States, independently of the State governments; that it must operate directly upon each and every individual, native or naturalized, declaring him entitled, as a citizen of the United States, to the protection and benefits of the national government, or declaring him to be property, subject only to the will of his owner, and therefore entitled to no personal protection at all, either from the general or State governments.

VI.

If it rests with the State governments to say whether the natives of the country shall be citizens of the United States, and have the protection of the national government, or be property, subject only to the will of their owners, then certainly it rests equally with the State governments to say whether naturalized persons shall be citizens or slaves; for naturalization by the United States government can at most but put the persons naturalized on a level with the natives. And that is all that the principle of naturalization implies.

This question therefore, as to the power of the States to convert men into property, is not one that concerns the natives of the country alone. It concerns all immigrants as well; since the general government can certainly have no more power to protect immigrants against being reduced to property, than it has to protect those born on the soil.

VII.

There are, then, three decisive proofs that the United States government must determine for itself, independently of the State governments, who are, and who are not (if any are not) citizens of the United States.

The first of these proofs is, that otherwise the United States government could not know its own citizens, or consequently know to whom its own proper and ordinary duties were due.

The second proof is, that otherwise the United States government could not know when it had fulfilled its guaranty of “a republican form of government” to the citizens of the United States, within the States respectively.

The third proof is, that otherwise the United States constitution and laws could either do more for foreigners (by naturalization) than they can do for those born on the soil; or else naturalization itself, by the United States government, would be an utterly useless process for protecting the persons naturalized against being reduced to property by the State government.

VIII.

Assuming it now to be settled, that the constitution of the United States fixes the status of every person, as a citizen or a slave; and that it does so, “any thing in the constitution or laws of any State to the contrary notwithstanding;” let us ascertain what its decision on this point is. To do so, we have only to ascertain by and for whom the constitution of the United States was established. This the instrument itself has explicitly informed us. It declares itself to have been established by “the people of the United States,” for the benefit of “themselves and their posterity.” From this declaration of the constitution itself there can be no appeal. And the instrument is to be interpreted throughout consistently with this declaration. Thus interpreted, it implies that all the then “people of the United States,” with their “posterity,” were to be citizens of the United States, and, as such, to have the benefit and protection of the general government; and consequently that none of them could be lawfully reduced to the condition of property. It also authorizes congress to naturalize all persons of foreign birth, coming into the country, without discriminating between those that may come in voluntarily, and those that may be brought in against their will. It also authorizes Congress “to punish offences against the law of nations;” and thus authorizes the punishment of all attempts to enslave the people of other nations, whether they come here voluntarily, or are brought here Edition: current; Page: [14] by force. It also, without making any discrimination as to persons, authorizes the writ of habeas corpus, which denies the right of property in man. It also requires the United States to “guarantee to every State in the Union a republican form of government;” under which at least all the citizens of the United States, within the State, shall have the protection of the laws. In these various ways, the constitution of the United States, “the supreme law of the land,” has made the principle of property in man impossible anywhere within the United States; and has empowered the general government to maintain that principle, in opposition to any subordinate or State government.

We are aware that the supreme court of the United States, in the Dred Scott case, have asserted that the phrase, “the people of the United States,” did not mean all the people, but only all the white people, of the United States. And they attempt to fortify this opinion by saying that the Declaration of Independence itself did not mean to assert that “all men were created equal,” but only that all white men were created equal. To this view of the case we will, at this time, offer no other answer than this: that, if this famous clause of the Declaration of Independence is to be interpreted according to this opinion of the supreme court, the whole instrument must also be interpreted in accordance with it; and the necessary consequence would then be, that the Declaration of Independence absolved only the white people of the country from their allegiance to the English crown, leaving the black people still subject to that allegiance, and entitled to corresponding protection. Thus Queen Victoria would have now, in our midst, four millions of subjects, whose rights she ought at once to take care of, as she would undoubtedly be very willing to do.

We are also aware, that, although “the idea that there could be property in man” was studiously excluded from the constitution itself, it is nevertheless historically known that an understanding existed, outside of the constitution, among some of the framers, and other politicians of that day, that, if the honest character of the instrument itself should be successful in securing its adoption by the people, these framers and others would then use Edition: current; Page: [15] their influence to give to the instrument an interpretation favorable to the maintenance of slavery. And we are aware that it is now claimed that this outside understanding ought to be substituted, as it hitherto has been, for the instrument itself, and acknowledged as the real constitution, so far as slavery is concerned.

Our answer on this point is,—that this outside understanding could have existed among but a small portion of the whole people; that they dared not incorporate it in the constitution itself; that, instead of being any part of the constitution itself, it was but a traitorous conspiracy against the very constitution, which they, with others, induced the people of the United States to adopt; that it could have had no legal effect or validity, even among those who were actually parties to it; and that we, of this day, would not only be slaves, but idiots, if we were to allow the criminal purposes of these men to be substituted for the constitution; and thus suffer ourselves, in effect, to be governed by a set of dead traitors and tyrants, who no longer have any rights in this world; who, when living, dared put only honest purposes into the constitution; and who, if now living, would deserve to be punished for their treason and their crimes, rather than reverenced as patriots and statesmen, and taken as authority as to the true meaning of the constitution.

The fraudulent interpretation given to the constitution at large, in respect to slavery, has been accomplished mainly by means of the fraudulent interpretation given to the one word “free,” in the clause relative to representation and direct taxation. The conspirators against freedom, with their dupes, have, from the foundation of the government, claimed that this word was used to describe a free person, as distinguished from a slave. Where as it had been used in England for centuries, and in this country from its first settlement, to describe a native or naturalized person, as distinguished from an alien. Thus our colonial charters guaranteed that persons born in the colonies should “be free and natural subjects, as if born in the realm of England.” When the troubles arose between this and the mother country, in regard to taxation, our fathers insisted that they were “free Edition: current; Page: [16] British subjects,” and therefore could not be taxed without their consent. And, up to the Revolution, the words free and freemen, if not the only words used, were the words principally used, to designate native or naturalized persons, as distinguished from aliens.

After the Revolution, the word “free” continued to be used in this political sense, through the country generally. And, at the time the constitution of the United States was adopted, it was so used in the constitution of Georgia, Art. XI.; in the general naturalization law of Georgia, passed Feb. 7, 1785, Sec. 2; in a statute of Georgia, passed Feb. 22, 1785, granting lands to the Count D’Estaing, and making him “a free citizen” of the State; in the constitution of South Carolina, Sec. 13; in a statute of South Carolina, passed March 27, 1787, naturalizing Hugh Alexander Nixon; in the constitution of North Carolina, Sec. 40; in the constitution of Pennsylvania, Sec. 42; in numerous acts of the legislature of Massachusetts, from the year 1784 to 1789, naturalizing the individuals named in them; in the charters of Rhode Island and Connecticut, then continued in force as constitutions; in the Articles of Confederation, Art. IV., Sec. 1; and in the Ordinance of 1787. The statutes and constitutions of several of the States used the words freeman and freemen in a nearly similar, if not in precisely the same, sense.

Usage, therefore,—even the usage of the then strongest slaveholding States themselves—and all legal rules of interpretation applicable to the case—and especially that controlling rule, which requires a meaning favorable to justice, rather than injustice, to be given to the words of all legal instruments whatsoever—required that the word “free,” in the constitutional provision relative to representation and direct taxation, should be understood in this political sense, to distinguish the native and naturalized inhabitants of the country from aliens, and not to distinguish free persons from slaves.

But slavery, which can be maintained only by force and fraud, has hitherto succeeded in palming off upon the country a false interpretation of the word “free.” And it is only by giving a Edition: current; Page: [17] fraudulent meaning to the word “free,” that men have been made to believe that the constitution recognized the legality of slavery. Without the aid of this fraud, the other clauses, now held to refer to slaves, could probably never have had such a meaning fastened upon them; since there is nothing in their language that justifies such a meaning.

If we wish to enjoy any liberty ourselves, or do any thing for the liberation of others, it is time for us to emancipate ourselves from our intellectual and moral bondage to the frauds and crimes of dead slaveholders and their accomplices, and either read and execute our constitution as it is, or tear it in pieces. If the language of our constitution is not to be considered as conveying its true meaning, nor interpreted by the same rules by which all our other legal instruments are interpreted; if it is to be presumed, as it ever heretofore has been, that neither honest men, nor honest motives could have had any part in the formation or adoption of the constitution; but we are to search, outside of the instrument, for the private motives of every robber, kidnapper, hypocrite, scoundrel, and tyrant, who lived at the time it was adopted, and accept those motives, in place of those written in the instrument itself, as the only lawful principles of the government,—if such is the true mode of ascertaining the legal import of written constitutions, the sooner they are all given to the flames, the better it will be for the liberties of mankind, and the better we shall vindicate our own claims to the possession of common honesty and common sense. If we dare not correct the frauds of the past, and interpret our constitution by the same rules by which it ought to have been interpreted from the first,—if, in other words, we dare not decide for ourselves what the true principles of our constitution are, and whether those principles have been obeyed or violated by those appointed to administer it—we are ourselves wretched cowards and slaves, fit to be used as instruments for enslaving each other.

But, independently of the constitution of the United States, we know that slavery has never had any constitutional existence in this country, for these reasons:—

1. The colonial charters, the constitutional law of the colonies, Edition: current; Page: [18] required the legislation of the colonies to “be consonant to reason, and conformable, as nearly as circumstances would allow, to the laws, customs, and rights of the realm of England.” This made slavery illegal up to the time of the Revolution.

2. Of all the State constitutions established and existing in 1787 or 1789, when the constitution of the United States was framed and adopted, not one established or authorized slavery. It was, therefore, impossible that the slavery then existing could have been legal.

3. Even of the statute law of the States, on the subject of slavery, in 1787 and 1789 (admitting such statute law to be, as it really was not, constitutional), none described the persons to be enslaved with such accuracy as that many, if indeed any, individuals could ever have been identified by it as slaves.

On the 19th of August, 1850, Senator Mason, of Virginia, confessed, in the Senate of the United States, that, so far as he knew, slavery had never been established by positive law in a single State in the Union. And in the United States House of Representatives, on the 14th day of March last, Mr. Curry, of Alabama, said,—

He also, in the same speech, said,—

And he made no denial of the truth of this statement.

Thus we have abundant evidence that slavery had never had any legal existence in the country, up to the adoption of the constitution of the United States. And, if it had no legal existence at the time of the adoption of the United States constitution, that constitution necessarily made citizens of all the then people of the United States; for there can be no question that it made citizens of all, unless of such as were then legally held in bondage.

But, even if the constitutions and statute-books of every State had legalized slavery in the most unequivocal manner, the constitution of the United States would nevertheless have given freedom to all; because it made “the people of the United States,” without discrimination, citizens of the United States; and was thenceforth to be “the supreme law of the land,” “any thing” then existing in, as well as ever afterwards to be incorporated into, “the constitution or laws of any State to the contrary notwithstanding.”

The adoption of a new constitution is a revolution; and the object of revolutions is to get rid of, and not to perpetuate, old abuses and wrongs. All new constitutions, therefore, should be construed as favorably as possible for the accomplishment of that end. For this reason, in construing the constitution of the United States, no notice can be taken of (with the view of perpetuating) any abuses or crimes tolerated, or even authorized, by the then existing State governments.

What excuse, then, has any one for saying, that, constitutionally speaking, our country is not a free one? free for the whole human race? and especially for all born on the soil?

IX.

The palpable truth is, that the four millions of human beings now held in bondage in this country are, in the view of the constitution of the United States, full citizens of the United States, entitled, without any qualification, abatement, or discrimination whatever, to all the rights, privileges, and protection which that constitution guarantees to the white citizens of the United States, and that their citizenship has been withheld from them only by ignorance, and fraud, and force.

Such being the truth in regard to this portion of the citizens of the United States, it is the constitutional duty of both the general and State governments to protect them in their personal liberty, and in all the other rights which those governments secure to the other citizens of the United States.

It is as much the constitutional duty of the general government, Edition: current; Page: [20] as of the State governments, to protect the citizens of the United States in their personal liberty; for if it cannot secure to them their personal liberty, it can secure to them no other of the rights or privileges which it is bound to secure to them.

To enable the general government to secure to the people their personal liberty, it is supplied with all necessary powers. It is authorized to use the writ of habeas corpus, which of itself is sufficient to set at liberty all persons illegally restrained. It is authorized to arm and discipline the people as militia, and thus enable them to do something towards defending their own liberty. It is authorized “to make all laws which shall be necessary and proper for carrying into execution” the powers specifically enumerated. That is to say, it is authorized “to make all laws which shall be necessary and proper for carrying” home to each individual every right and every privilege which the constitution designs to secure to him; and the United States courts are required to take cognizance “of all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” In other words, they are authorized to take cognizance of all cases in which the question to be tried is the right which any individual has under the constitution, laws, or treaties of the United States. The United States are also bound to guarantee to all the citizens of the United States, within the States, the benefits of a republican form of government. There is, then, obviously no lack of powers delegated to the general government, to secure the personal liberty of all its citizens.

That it is as much the duty of the general, as of the State, governments to secure the personal liberty of the people of the United States, will be obvious from the following considerations:—

The people of the United States live under, and are citizens of, two governments, the general and the State governments. These two governments are mainly independent of each other; having, for the most part, distinct powers, distinct spheres of action, and owing distinct duties to the citizen. The purpose of the general Edition: current; Page: [21] government is to secure to the individual the enjoyment of a certain enumerated class of rights and privileges; and the object of the State governments is to secure him in the enjoyment of certain other rights and privileges. But both governments have at least one duty in common, viz., that of securing personal liberty to the citizen. This must necessarily be a duty common to both governments, because the enjoyment of each of the classes of rights and privileges before mentioned, to wit, those that are to be secured by the general government, and those that are to be secured by the State governments, necessarily imply the possession of personal liberty on his part; since without this liberty, none of the other rights or privileges to be secured to him by either government, can be enjoyed. It is necessary, therefore, that each government should have the right to secure his liberty to him, else it cannot secure to him the other rights and privileges which it is bound to secure to him. It is as necessary that the general government should have power to secure to him personal liberty, in order that he may enjoy all the other rights and privileges which the general government is bound to secure to him, as it is that the State governments should have power to secure his personal liberty, in order that he may enjoy all the other rights and privileges which it is the duty of the State governments to secure to him. It would be absurd to say that the general government is bound to secure to him certain rights and privileges, which implied the possession of personal liberty on his part, as an indispensable pre-requisite to his enjoyment of them, and yet that it had no power of its own to secure his liberty; for that would be equivalent to saying that the general government could not perform its own duties to the citizen, unless the State governments should have first placed him in a condition to have those duties performed,—a thing which the State governments might neglect or refuse to do.

The State governments have evidently no more right to interfere to prevent the citizen’s enjoyment of the rights and privileges intended to be secured to him by the general government, than the general government has to interfere to prevent his enjoyment of the rights and privileges intended to be secured Edition: current; Page: [22] to him by the State governments. For example, the State governments have no more right to prevent his going into the post-offices, custom-houses, and court-houses, which the general government has provided for his benefit, than the general government has to prevent his travelling on the highways, or going into the schools, or court-houses, which the State governments have provided for his benefit.

This proposition seems to us so manifestly true as to need no elaboration. And yet, if either of these governments can reduce him to slavery, it can deprive him of all the rights and privileges which the other government is designed to secure to him. In other words, it can deprive that other government of a citizen, and thus abolish that other government itself, so far as that citizen is concerned. Certainly a State government has no more power to do this wrong towards the national government, than the national government has to do a similar wrong towards a State government. In short, neither government has any constitutional power to deprive the other of a citizen, by making him a slave.

Furthermore, each of these two governments has an equal right to defend their common citizens against being enslaved by the other. If, for example, the general government were to attempt to enslave its citizens within a State, the State government would clearly have the right to defend them against such enslavement; because they are its citizens as well as citizens of the United States. And, for the same reason, if a State government attempt to enslave its citizens within the United States, the general government clearly has the same right to resist such enslavement, that the State government would have in the other case; because they are citizens of the United States, as well as of the State.

This power of each government to resist the enslavement of their common citizens by the other, is clearly a power necessary for its self-preservation; a power that must, of necessity, belong to every government that has the power of maintaining its own existence. It must, therefore, as much belong to the general as to the State governments.

Still further: The principal, if not the sole object of our having two governments for the same citizen, would be entirely defeated, if each government had not an equal right to defend him against enslavement by the other. What is the grand object of having two governments over the same citizen? It is, that, if either government prove oppressive, he may fly for protection to the other. This right of flying from the oppression of one government to the protection of the other, makes it more difficult for him to be oppressed, than if he had no alternative but submission to a single government. This certainly is the only important, if not the only possible, advantage of our double system of government. Yet if either of these two governments can enslave their common citizen, and the other has no right to interfere for his protection, the principal, if not the only, benefit of our having two governments, is lost.

But our governments, instead of regarding this great and primary motive for their separate existence, have hitherto ignored it, and acted upon the theory, that it is the duty of each to go to the assistance of the other, when the latter finds its own strength inadequate to the accomplishment of its tyrannical purposes. This we see in the case of fugitive slaves. When a citizen of the United States, reduced to slavery by a State government, or by a private individual with the consent and co-operation of the State government, makes his escape beyond the jurisdiction and power of the State government, the United States government pursues him, recaptures him, and restores him to his tyrants. Thus the citizen, instead of finding his security in the double system of government under which he lives, finds in it only a double power of oppression united against him. What grosser violation of all the rational and legitimate purposes of our double system of government can be conceived of than this?

If these views are correct, it is just as much the constitutional duty, and just as clearly the constitutional right, of the general government to protect the people of the United States against enslavement by the State governments, as it is the constitutional duty and right of the State governments, to protect the same people against enslavement by the general government. Edition: current; Page: [24] The general government is as much set as a guard and a shield against enslavement by the State governments, as the latter are as guards and shields against enslavement by the former.

This view, too, of the object to be accomplished by our double system of government,—viz., the greater security of the citizen against the oppression of his government,—presents, more clearly perhaps than has before been done, the necessity that the general government should determine for itself, independently of the State governments, who are its own citizens, and who are entitled to its protection; for otherwise the general government could have power to protect against a State government only those whom the State government should consent to have thus protected against itself. It would be an absurdity to say that the general government was established to protect the people against the State governments, and yet that it is left to the State governments themselves to say whom the general government may thus protect. To allow the State governments the power to say whom the general government may, and whom it may not, protect against themselves (the State governments), would be depriving the general government of all power to protect any. It would be like allowing a man to protect, against a wolf, all lambs except those whom the wolf should choose to devour.

The conclusion necessarily is, that the general government must determine for itself, independently of the State governments, who are its citizens, and whom it will protect; and, if the general government makes this determination, it can, under the constitution of the United States, make no other determination than that all the native and naturalized inhabitants of the United States are its citizens, and entitled to its protection.

X.

There is still another point of great practical importance to be considered. It is this: If those now held in bondage in this country are, in the view of “the supreme law of the land,” citizens of the United States, entitled to the full privileges of citizenship equally with all the other citizens of the United States, Edition: current; Page: [25] then it is not only the constitutional right and duty of both the general and State governments to protect them in the enjoyment of all their rights as citizens, but it is also not merely a moral duty, but a strictly legal and constitutional right, of all the other citizens of the country to go, in their private capacity as individuals, to the rescue of those enslaved.

It is as much a legal right of one citizen to rescue another from the hands of a kidnapper, as to rescue him or her from a robber, ravisher, or assassin. And all the force necessary for the accomplishment of the object may be lawfully used.

When the government fails to protect the people against robbers, kidnappers, ravishers, and murderers, it is not only a legal right, but an imperative moral duty, of the people to take their mutual defence into their own hands. And the constitution recognizes this right, when it declares that “the right of the people to keep and bear arms shall not be infringed;” for “the right of the people to keep and bear arms” implies their right to use them when necessary for their protection.*

We claim it as a legal and constitutional right to travel in all parts of our common country, and to perform the common offices of humanity towards all whom we may find needing them. And if, in our travels, we chance to see a fellow-man in the hands of a kidnapper or slaveholder, we claim the right to rescue him, at any necessary cost to the kidnapper. And, if any part of our country be unsafe for single travellers, or small companies of travellers, we claim the right to go in companies numerous enough to make ourselves safe, and to enable us to rescue all whom we may find needing our assistance.

And it is the legal duty of both the United States and all Edition: current; Page: [26] State courts—judges and juries—to protect us in the exercise of these rights.

XI.

We call particular attention to the duties of juries in this matter. We believe in that noblest, and incomparably most valuable, of all the judicial opinions ever rendered by the Supreme Court of the United States, in which they declared, by the mouth of John Jay, the first, and great, and honest Chief-Justice, that even in civil suits (as well as criminal) juries have a right to judge of the law as well as the fact.*

We also believe with the United States House of Representatives, who, in 1804, by a vote of 73 yeas to 32 nays, resolved to impeach Samuel Chase, one of the Justices of the Supreme Court of the United States, for, as they said, “endeavoring [in the trial of John Fries for treason] to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict, which they were required to give,” and declared such conduct “irregular,” and “as dangerous to our liberties as Edition: current; Page: [27] it is novel to our laws and usages;” and that on “the rights of juries [to determine the law, as well as the fact] ultimately rest the liberty and safety of the American people.”

We believe more than this. We believe that jurors, under our constitution, not only have the right to judge what the laws are, and whether they are consistent with the constitution, but that they have all the ancient and common-law right of jurors to judge of the justice of all laws whatsoever, which they are called upon to assist in enforcing, and to hold all of them invalid which conflict with their own ideas of justice. And that they are under no legal or moral obligation to hold valid every iniquitous statute, which they may suppose the letter of the constitution can possibly be interpreted to cover. It is their duty, as it is the duty of congresses and judges, to strive to see how much justice, and not how much injustice, the constitution can be made to authorize.

We believe that juries, and not congresses and judges, are the palladium of our liberties. We do not at all admit, as is now almost universally assumed to be the fact, that the people of this nation have ever given their rights and liberties into the sole keeping of legislators and judges. We hold that the assumption of the supreme court of the United States to decide, authoritatively for the people of this country, what their rights and liberties are, and what is the true meaning of the constitution, is an assumption of absolute power—an entire and flagrant usurpation—authorized by no word or syllable of the constitution; and that it should not be submitted to for a moment, unless we all of us design to be slaves.

We believe, too, that the practice of selecting jurors by judges and marshals, the servile and corrupt instruments of the government, who will of course select only those known to be favorable to the tyrannical measures of the government, is as utterly unconstitutional, as it necessarily must be destructive of liberty. We believe that juries should be, in fact, what they are in theory, viz., a fair epitome or representation of “the country,” or people at large; and that to make them so, they must be selected by lot, or otherwise, from the whole body of Edition: current; Page: [28] male adults, without any choice or interference by the government, or any of its officers; and that when selected, no judge or other officer of the government can have any authority to question them as to whether they are in favor of, or opposed to, the laws that are to be put in issue.

In short, we believe it to be the purpose of our systems of government to maintain in force only those principles of justice which the people generally can understand, and in which they are agreed; and not to invest one portion of the people, either minority or majority, with unlimited power over the others.

Evidently the only tribunal known to our constitution, and to be relied on for the maintenance of such principles, is the jury.

We, therefore, hold that all legislative enactments and judicial opinions should be held subordinate to that general public conscience, which is presumed to be represented in the jury-box, by twelve men, taken indiscriminately from the whole people, and capable of giving judgments against persons or property only when they act with entire unanimity. And we believe it to be the primary and capital object of our constitutions thus “to get twelve honest men into a jury-box,” to do justice, according to their own notions of it, between man and man, and to see that only such measures of government shall be enforced as they shall all deem just and proper.

We believe that, under this system of trial by jury, it will be safe for one human being to go to the rescue of another from the hands of kidnappers, ravishers, and slaveholders. We believe, also, that a government, so powerful and so tyrannical as to restrain men from the performance of these primary duties of humanity and justice, ought not to be suffered to exist.

XII.

Turning now from our constitution, as it is in theory, and looking at our government, as it is in practice, what do we find? Do we find our national government securing to all its citizens the rights which it is constitutionally bound to secure to them? No. It does not know, nor even profess to know, for Edition: current; Page: [29] itself, who its own citizens are. It does not even profess to have any citizens, except such as the separate States may see fit to allow it to have. It dares not perform the first political duty towards the people of the United States individually, without first humbly asking the permission of the State governments. It ventures timidly, and hat in hand, within each State, as if fearful of being treated as an intruder, and obsequiously inquires if the State government will be pleased to allow “the supreme law of the land” the privilege of having a few citizens within the State, to save it from falling into contempt, and becoming a dead letter? Shamefacedly confessing its own barrenness, it simply offers itself as a dry nurse to any political children whom the States may see fit to commit partially to its care. Some of the States, confiding in its subserviency and desire to please, graciously suffer the forlorn and harmless creature to busy itself in various subordinate services, such as carrying letters, &c., for all their citizens. Others, less gracious towards it, or less disposed to allow their citizens the luxury of such a servant, give it strict orders to do nothing for these, those, and the others of their people—the exceptions amounting, in some States, to one half of the whole population. And the submissive creature follows these instructions to the letter, living, as it does, in perpetual fear lest the slightest transgression, on its part, should be followed by its summary dismissal from the political household. The only dignity left it is its name. It still calls itself the United States Government; fancies it has citizens of its own, whom it protects; plumes itself, in the eyes of the world, on its greatness and strength; talks contemptuously, and even indignantly, of those governments that suffer their subjects to be oppressed; and ostentatiously proffers its protection to those of all lands who will accept it. Yet all the while the affrighted and imbecile thing sees its own citizens snatched away from it, at the rate of a hundred thousand per annum, by the State governments, and dares neither lift its finger, nor raise its voice, to save one of them from the auctioncer’s block, the slave-driver’s whip, the ravisher’s lust, the kidnapper’s rapacity, or the ruffian’s violence. The number of its living citizens (to say nothing of the dead) of Edition: current; Page: [30] whom it has thus been robbed, amounts at this day to some four millions; and the number doubles in every twenty-five years. Nevertheless, its greatest anxiety still is lest its servility and acquiescence shall not be so complete as to satisfy these kidnappers of its citizens. The only symptom of courage it dares ever exhibit, as against a State, is when it attempts some rapacious or unequal taxation, or commits the unnatural crime of pursuing its own flying citizens, not to protect them, but to subject them again to the tyranny from which they have once escaped.

XIII.

While the government of the nation is thus prostrate and degraded, the people of the nation—at least that portion of them who show themselves in political organizations—instead of being alive to the authority of “the supreme law of the land,” and the rights of the people under it, are divided into four wretched, infamous factions, all of whom agree in the political absurdity, that the status of a man, relative to “the supreme law of the land,” is fixed by some subordinate law; that the rights of a man under the constitution of the United States are fixed by the constitutions and laws of the separate States. All of them agree, therefore, that the States may convert at least four millions citizens of the United States into property, with their posterity through all time. All of them agree in, and proclaim, the inviolability of property in man, within the United States, where alone the United States government has any jurisdiction of the question; and disagree with each other only as to the inviolability of property in man, outside of the United States, where the United States have no political jurisdiction at all.

XIV.

We repeat that the United States has no political jurisdiction at all, outside of the United States. By this we mean that it has no political jurisdiction over people inhabiting the new countries west of the United States, which the United States has hitherto Edition: current; Page: [31] assumed to govern, under the name of “Territories.” And we feel bound to make this assertion good.

Where does the constitution grant congress any power to govern any other people than those of the United States? Even the war-making power would not authorize us to hold a conquered people in subjection indefinitely, but only so long as they should remain enemies, or refuse to do justice. The treaty-making power is no power to make treaties adverse to the natural rights of mankind. It, therefore, includes no power to buy and sell mankind, with the territories on which they live. It no more implies a power, on our part, to purchase foreign people, and govern them as subjects, than it implies a power to sell a part of our own people to another nation, to be governed as subjects.

The only other power which can be claimed as authorizing such a government, is granted in the following words:

“The congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory [land] or other property, belonging to the United States.”

Here is no grant of general political power over people, either within or without the United States; but only a power to control and dispose of, as property, the land—for “territory” is but land—and other property, belonging to the United States.

To make this idea more evident, let us divide the provision into two parts, and read them separately as follows:

1. “The congress shall have power to dispose of the territory [land] or other property, belonging to the United States.”

Here plainly is no grant of political power over people.

2. “The congress shall have power to make all needful rules and regulations respecting the territory [land] or other property belonging to the United States.”

Here is plainly no more grant of political power in connection with the land, than in connection with any “other property” belonging to the United States.

The power to “make all needful rules and regulations respecting land or other property belonging to the United States,” is no grant of general political power over people.

The power granted is only such a degree of power over land Edition: current; Page: [32] and other property belonging to the United States, as may be necessary to secure such land and other property to the uses of the United States.

That this power is not one to establish any organized government over people, is proved by the fact that the power is certainly as ample in regard to “territory and other property,” within any of the United States, as to territory and other property, outside of the United States. If, therefore, the power included a power to set up an organized government or territory outside of the United States, it would equally include a power to set up an organized government within each State, to the exclusion of the State authority, wherever the United States had “territory or other property” within a State. But nobody ever dreamed that the power authorized any such political monstrosity as this.

There is nothing in the language of the constitution, that implies that the land or other property spoken of, is outside of the United States. And as ours is distinctly a government of the United States, and not of other countries, the legal presumption is that the land and other property—more especially the land—belonging to the United States, is to be found within the United States, and not in other countries.

The United States have no rightful ownership of the unoccupied lands west of the United States. It is against the law of nature, and therefore impossible, that they should have any such ownership. Land is a part of the natural wealth of the world, created for the sustenance of mankind, and offered by the Creator as a free gift to those, and those only, who take actual possession of it. And actual possession means either actually living upon it, or improving it, by cutting down the trees, breaking up the soil, throwing a fence around it, or bestowing other useful labor upon it. Nothing short of this actual possession can give any one a rightful ownership of wilderness lands, or justify him in withholding it from those who wish to occupy it. Governments, which are but associations of individuals, can no more acquire any rightful ownership in wild lands, without this actual possession, than single individuals can do so. Until such lands are wanted Edition: current; Page: [33] for actual use, they must remain free and open for anybody and everybody, who chooses, to take possession of, and occupy them. Governments have no more right to assume the ownership of these lands, and demand a price for them, than they have to assume the ownership of the atmosphere, or the sunshine, and demand a price for them. They have no more right to claim the ownership of such lands, than of the birds and quadrupeds that inhabit them; or than they have to claim property in the ocean, and to demand a price of all who either sail upon it, or take fish out of it.

It is no answer to say that our government bought these lands of France or Mexico, for neither France nor Mexico had any rightful property in them, and could, therefore, convey no rightful title to them. Even in lands purchased of the Indians, the United States acquire no rightful property, except only in such as the latter actually cultivated, or occupied as habitations. Those which they merely roamed over in search of game, they had no exclusive property in, and could accordingly convey none.

The United States, therefore, have no rightful property in wild lands, even within the United States. Still less, if possible, have they any such property in wild lands outside of the United States.

There is nothing in the constitution that implies that the United States have any property in wild lands, either within or without the United States. “The territory [land] or other property belonging to the United States,” spoken of in the constitution, must be presumed to be such land and other property as the United States can rightfully own; and not such as they may simply assume to own, in violation of the law of nature, and the natural rights of mankind.

There is just as much authority given to congress, by the constitution, to assume the ownership of the atmosphere, both within and without the United States, and “to dispose of, and make all needful rules and regulations respecting” it, as there is for their assuming such a power over wild lands, either within or without the United States.

This power granted to congress must be construed consistently, and only consistently, with the law of nature, if that be possible, and with the general purposes of the government. It Edition: current; Page: [34] must, therefore, if possible, be construed as applying to occupied, instead of wild lands, and to those lying within, rather than to those lying beyond, the geographical limits of the United States. And this is possible. “The power to dispose of, and make all needful rules and regulations respecting the territory [land] and other property belonging to the United States,” and lying and being within the United States, is a power constantly needed in carrying on the daily operations of the government. It is needed in regard to every post-office, court-house, custom-house, or other real or personal property, whether absolutely owned, or temporarily occupied, by the United States. The power applies as well to lands and buildings temporarily leased, as to those absolutely owned; because a lease is a partial ownership.

The constitution specially provides that “over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings, congress shall have power to exercise exclusive legislation.” But inasmuch as the States might not give their consent—and could not even be expected to give their consent—to this “exclusive legislation” over all the “places” which the United States might purchase (or lease) for post-offices, court-houses, and “other needful buildings,” it was necessary that congress, instead of a “power to exercise exclusive legislation” over such “places,” should have power—without excluding the general jurisdiction of the States—“to make all needful rules and regulations respecting the territory [land, “places”] or other property” thus owned or occupied by the United States, in order to secure them to the uses, for which the United States designed them. Without such a power, the United States eould not establish even a post-office, without first getting the consent of the legislature of the State in which it was to be established.

We have, therefore, no need—in order to find “territory” [land, “places”] for this power to apply to—to assume that the United States, in violation of the law of nature, are the owners of wild lands, either within or without the United States. Still less have we need to assume that our government has power to Edition: current; Page: [35] exercise absolute political authority over peoples outside of the United States, in violation of the natural right of all men to govern themselves.

Peoples living outside of the United States, are, to us, foreign nations, to all intents and purposes. And it is of no importance whether those peoples are many or few; whether those countries are thinly or densely populated; whether the countries are contiguous to, or distant from the United States. In either case they are alike independent of us. Whether they are well, or ill governed, or have no government at all, is, politically speaking, no concern of ours.

Peoples settling on the lands west of the United States, are therefore, so far as we are concerned, independent nations, over whom we have no more political jurisdiction, than over the people of Canada, or England, or France, or Japan. Whether they have any organized governments at all, is no affair of ours, any more than whether the Indian tribes have, or have not, organized governments.

The fact that any of these peoples were once citizens of the United States, does not affect the question. We acknowledge and maintain the natural right of all men to renounce their country. And when our people leave their country, by making their permanent homes beyond its limits, they do renounce it. And if they ever wish to come into the Union, they must be admitted as States, the same as any other nation, that should wish to come into the Union, would have to do.

For these reasons we have, constitutionally, no political jurisdiction whatever over those countries west of the United States, which we are in the habit of governing under the name of “Territories.”*

XV.

If any of our citizens are carried off by force into those countries, and there held as slaves, we have the right, by force of arms, if need be, to compel their restoration, the same as if they Edition: current; Page: [37] had been carried into any other country. And that is all the political power which our constitution gives us over slavery in those countries. We have no more power to assume general Edition: current; Page: [38] political jurisdiction there, in order to prevent our people being carried there as slaves, than we have to assume similar jurisdiction over any other parts of the earth, in order to prevent our people being carried into them as slaves.

XVI.

Whether, therefore, property in man be, or be not, lawful in the United States, we have no general political jurisdiction over it outside of the United States. And we have no more jurisdiction over it in the territories, or countries west of the United States, than we have in any other territories or countries in the world, outside of the United States.

XVII.

If any portion of our people are, in the view of our constitution, lawful property within the United States, then, constitutionally speaking, their owners have the right to carry them out of the United States into any other part of the world, and there hold them, or lose them, according to the laws that prevail there. If, on the other hand, no part of our people are, in the view of the constitution, lawful property within the United States, then, constitutionally speaking, we are bound to prevent any of them being carried out of the country as slaves, no matter what part of the world they may be carried to. And this is all we have to do with slavery outside of the United States.

XVIII.

Neither has congress any authority to determine the question whether new States shall be admitted into the Union as slaveholding or as non-slaveholding States. All new States admitted into the Union must come into it subject to the constitution of the United States as “the supreme law.” If this “supreme law” declares one man to be the property of another, then, constitutionally speaking, he is and must be such property as Edition: current; Page: [39] much in the new States as in the old; and congress has no power to prevent it. If, on the other hand, that supreme law declares that there is no property in man, then congress has no power to set aside this supreme law in favor of any new State, any more than in favor of any of the old ones.

XIX.

Finally, even if it were admitted that congress has power under the constitution to govern countries outside of the United States, under the name of “territories,” still the law of property, as established by the constitution within the United States, would necessarily be the law of those territories; for the constitution would be as much the supreme law of the territories as it is of the United States. If, therefore, the constitution makes a man property within the United States, it would necessarily make him property in the territories. If, on the other hand, the constitution makes every man free within the United States, it would necessarily make every man free in the territories.

XX.

Whether, therefore, we have or have not political jurisdiction over the “territories,” so called, the whole question of slavery, so far as our government is concerned, must be settled by determining whether the constitution of the United States, “the supreme law of the land,” does or does not make a man a slave within the United States. If it does make him a slave anywhere within the United States, it makes him a slave everywhere within the United States—in old States and new States—and also in the territories, if our government has political jurisdiction over the territories. If, on the other hand, the constitution makes everybody free within the United States, it makes everybody free also in the territories, if our government has jurisdiction there.

XXI.

In short, we have one “supreme law” on this point, extending over all the States, and over any other countries (if any others there be) subject to the jurisdiction of the constitution. And when we shall have determined whether that supreme law makes a man property or not, either in Massachusetts or Carolina, we shall have determined it for all other localities, whether States or territories, within which the constitution now is, or ever shall be, the “supreme law.”

XXII.

There is, therefore, no room or basis under the constitution for the four different factions that now exist in this country, in regard to slavery, either in the States, or in the territories. There is room only for this single question, viz.: Does the Constitution of the United States, “the supreme law of the land,” make one man the property of another? All who take the affirmative of this question, and intend to live up to that principle, are bound, in consistency, to unite for the maintenance of it in all the States, and in all the territories (if the government has jurisdiction in the territories). All those who take the negative of the same question, and intend to live up to that principle, are bound, in consistency, to unite their forces for carrying that principle into effect throughout the United States, and throughout the territories (if congress has jurisdiction over the territories). And there is no middle ground whatever, on which any man can consistently stand, between these two directly antagonistic positions.

We ask all the people of the United States to take their position distinctly on the one side or the other of this question, at the ensuing election; and not to waste their energies or influence upon any of the frivolous and groundless issues, which divide the four different factions now contending for possession of the government.

XXIII.

Of all these factions, the Republican is the most thoroughly senseless, baseless, aimless, inconsistent, and insincere. It has no constitutional principles to stand upon, and it lives up to no moral ones. It aims at nothing for freedom, and is sure to accomplish it. The other factions have at least the merits of frankness and consistency. They are openly on the side of slavery, and make no hypocritical grimaces at supporting it. The Republicans, on the other hand, are double-faced, double-tongued, hypocritical, and inconsistent to the last degree. We speak now of their presses and public men. Duplicity and deceit seem to be regarded by them as their only available capital. This results from the fact that the faction consists of two wings, one favorable to liberty, the other to slavery; neither of them alone strong enough for success; and neither of them honest enough to submit to present defeat for their principles. How to keep these two wings together until they shall have succeeded in clutching the spoils and power of office, is the great problem with the managers. The plan adopted is, to make, on the one hand, the most desperate efforts to prove that their consciences and all their moral sentiments are opposed to slavery, and that they will do every thing they constitutionally can, against it; and, on the other, to make equally desperate efforts to prove that they have the most sacred reverence for the constitution, and that the constitution gives them no power whatever to interfere with slavery in the States. So they cry to one wing of their party, “Put us in power, and we will do every thing we constitutionally can for liberty.” To the other wing, they cry, “Put us in power. You can do it with perfect safety to slavery—for constitutionally we can do nothing against it, where it is.”

It is lucky for these Jesuitical demagogues that there happen to be, bordering upon the United States, certain wilderness regions, over which the United States have hitherto usurped jurisdiction. This gives them an opportunity to make a show of living up to their professions, by appearing to carry on a terrific war against slavery, outside the United States, where it is not; Edition: current; Page: [42] while, within the United States, “where it is,” they have no political quarrel with it whatever, but only make a pretence of having very violent moral sentiments.

Outside of the United States, where slavery is not, and where the United States really have no jurisdiction, the battle is made, by these men, to appear to be a real battle of statutes, at least, if not of principles. Within the United States, where slavery is, and where the United States have jurisdiction, the contest is plainly a mere contest of hypocrisy, rhetoric, and fustian, and a selfish struggle for the honors and spoils of office.

In this warfare, in which it is understood that slavery is not to be hurt, the weapons employed are mostly absurd, bombastic, and fraudulent watchwords, in preference to any constitutional principles, that might be dangerous to the object assailed. Among the watchwords are these: “Freedom National, Slavery Sectional;” “Free Labor and Free Men;” “Non-extension of Slavery;” “Down with the Slave Oligarchy,” &c., &c. All these, as used by the Republicans, are either simple absurdities, or fair-sounding falsehoods.

Take, for example, “Freedom National, Slavery Sectional.” This is both an absurdity and a falsehood, on its face; for how can freedom be national, so long as any section of the nation can be given up to slavery? “Freedom National,” to have any sense, implies a paramount law for freedom pervading the whole nation; and is inconsistent with the idea that slavery can be legal in so much even as a section of the nation. But, in the mouths of the Republicans, “Freedom National, Slavery Sectional,” means simply that, for territory outside of the United States, there is a paramount national law, that requires, or at least permits, liberty; while, within the United States, this national law is, or legally may be, overborne by local or sectional laws; and thus the entire territory of the nation be given up to “sectional slavery.”

If there be any territory, within the United States, in regard to which this assumed national law of freedom is paramount, it can be, at most, only the District of Columbia, and a few places occupied as forts, arsenals, &c., over which congress have “exclusive Edition: current; Page: [43] legislation,”—places which are but as pin-points on the map of the nation.

And yet this false, absurd, self-contradictory, and ridiculous motto, which really means nothing for freedom, but gives up the whole nation to slavery, if the sections (States) so choose, has already had a long life, as expressing one of the cardinal principles of the Republican faction.

The motto, “Free Labor and Free Men,” in the mouths of the Republicans, is as false and Jesuitical as “Freedom National, and Slavery Sectional.” In the mouths of honest men, it would imply that they were intent upon giving freedom to labor and men, that now are not free. But in the mouths of Republicans, it only means that they are looking after the interests of the labor and the men, that are already free; and that, as for the the labor and the men, that are not free, they may remain in bondage for ever, for aught the Republicans will ever do to help them out of it.

This false, heartless, and infamous watchword—for it deserves no milder description—has also had a long life, as expressing a cardinal principle of the party.

But “The Non-Extension of Slavery” is the transcendant principle of these pretended advocates of liberty. It is in this sign they expect to conquer. What does it mean, or amount to? Does it mean the non-extension of slavery in point of time? No; for slavery may be extended through all time, without obstruction from them. Does it mean that slavery shall not be extended to new victims? No; for they consent that it may be extended to all the natural increase of the existing slaves, until at least the 850,000 square miles, now occupied by slavery, shall be filled with slaves to its utmost capacity.

What, then, is the extension to which they are so violently opposed? Why, it is only this: If a slave is carried by his owner from one place to another, that is an extension of slavery!

To continue a man and his posterity in slavery through all time, in one locality, is no extension of slavery, within the Republican meaning of the term. But to remove him from that locality to another, is an “extension of slavery” too horrible for these devotees of liberty to think of.

But these Republicans, either foolishly or fraudulently, encourage the idea, that if slavery can but be confined within the space it now occupies, it will soon die out; whereas, in truth, so far as mere space is concerned, it probably has enough already for it to live and flourish in for two, three, or five hundred years.

“Down with the Slave Oligarchy,” would, to the minds of most men, convey the idea of an intention to overthrow the power of the slaveholders, by annihilating their right of property in their slaves. But in the creed of the Republicans, “Down with the Slave Oligarchy” means no such thing. It means only that the slaveholders shall not have so much influence in the administration of the national government, and especially that they shall not have so large a share of the national offices, as they have hitherto had the address to secure! And these wise Republicans imagine they can overthrow the slave oligarchy, and destroy their influence in the government, at the same time that they (the Republicans) maintain the inviolability of the three or four thousand millions of dollars of property in men, on which the slave oligarchy rest, and whence all their influence is derived.

But suppose the slave oligarchy can be overthrown, after this plan of the Republicans, what right have the latter, as consistent men, acting under the constitution, and pledged to its support, to attempt to overthrow the slave oligarchy, so long as they (the Republicans) concede that the oligarchy are not violating the constitution, by holding their fellow-men as property? According to the Republican interpretation of the constitution, the slave oligarchy are just as good citizens of the United States, exercising only their constitutional rights, as are the Republicans themselves. Indeed, there would be nothing inconsistent in the entire slave oligarchy being members of the Republican faction, in full communion. There is nothing in the political creed of the latter, that really need stick at all in the throats of the former; and the Republicans themselves, or, at least, a large portion of them, would, no doubt, be very much delighted by such an accession to their numbers.

“The Suppression of the Slave Trade” appears to be becoming one of their party watchwords. But, if southern juries will neither indict, nor convict, how is the slave trade to be suppressed? Edition: current; Page: [45] and how can the Republicans ask or expect southern juries to indict, or convict, for bringing slaves from Africa, so long as they (the Republicans) concede the right of property in four millions of native Americans? There is plainly no consistent way whatever, of suppressing the slave trade, except by giving freedom to the slaves already in the country, and all that may be brought in, and thus putting an end to the slave market. And there is, probably, no other possible way of suppressing it. Certainly, there is no other possible way of suppressing it, unless by such an enormous expenditure as the nation will never be likely to incur. “The Suppression of the Slave Trade” may, therefore, fairly be set down as another of the fraudulent watchwords of the Republican faction.

Still another specimen of the hypocrisy of this faction, is to be found in its name. It has taken to itself the name of Republican. They are great sticklers for the constitution, and many, or most, of them “strict constructionists,” at that. The word, “Republican,” is found but once in the constitution, and we are bound to presume that this constitutional party have chosen their name with reference to the signification of that word in the constitution. But do they propose “to guaranty to every State in this Union a republican form of government?”—a government that shall secure to all the citizens of the United States, within the States, the protection of the laws? And do they propose that the United States government shall ascertain for itself, independently of the State governments, who its own citizens are, within the States, that it may fulfil this guaranty to them? Not at all. So far from it, they hold, in the language of the Chicago platform, that—

This means, if it means any thing, that the “Slave Oligarchy,” or any other body of men, however small, who may chance to get the power of a State into their hands, may reduce anybody Edition: current; Page: [46] and everybody, black and white, to slavery, without interference from the general government; and that for private persons to go to the rescue of their fellow-men, from these robbers, ravishers, and kidnappers, would be “among the gravest of crimes.”

This is giving to slavery more than it ever asked. Even the Dred Scott judges themselves set up no such claim for it as this. Their opinion admits that whites are citizens of the United States, and, because they are such, cannot be enslaved by the States. Those judges are, in fact, “non-extensionists,” and have a much better claim to that title than the Republicans; for they conceded that slavery could not be extended beyond the limits of a single race; whereas the Republicans acknowledge no such, or any other, limit to slavery in the States; or what is the same thing, to slavery in the United States.

We believe that no body even of southern men, respectable either for numbers, or as representatives of southern sentiment, have ever attempted to carry this doctrine of State Rights to such lengths, in behalf of slavery, as it is here conceded to them by the pretended friends of liberty. In fact, these men have been attempting, for years, to rival, at least, if not to outdo, even southern men, in their advocacy of this trumpery doctrine of “State Rights.” And they have at length succeeded in absolutely outdoing them. And their motive has been, that they might gain the reputation of being champions of liberty at the north, and at the same time avoid the necessity of performing any service for liberty at the south, where alone any real service was needed.

It is of no avail, as a defence for the Republicans, to say, that, in another resolution, at Chicago, they declared—

It is of no avail that they declare these principles, in one breath, when, in the next, they declare the unlimited right of the States to reduce men to bondage. That they should assert such opposite principles, only proves what unblushing hypocrites and liars they are; and that they are ready to assert any principles whatever, from the extreme of liberty, to the extreme of slavery, if they can thereby conciliate or deceive the two opposite wings of their faction, and keep them together until their object of gaining possession of the government of the country shall be attained.

We have recently been told, on high Republican authority, that slavery is a “five-headed enormity.” Well, be it so. How do the Republicans propose to combat this “five-headed enormity?” We think we have shown that they propose to combat it only by an imposture, that is at least twelve-headed. This twelve-headed imposture consists of these twelve separate impostures, to wit:—

1. The imposture of “Freedom National, and Slavery Sectional.” That is to say, national freedom outside of the nation, and sectional slavery all over the nation itself, if the separate sections (States) shall so choose.

2. The imposture of “Free Labor and Free Men.” That is to say, seeking the interests alone of the labor and the men, that are already free; and leaving the labor and the men, that are not free, to their fate.

3. The imposture of “Non-Extension of Slavery.” That is to say, extending slavery through all time, and to as many new victims as the States respectively may choose; and “non-extending” it only by not removing the slaves from one place to another; but confining them within the narrow precincts of 850,000 square miles, where it is to be presumed, they will soon die out from compression, suffocation, or some other equally probable cause.

4. The imposture of “Down with the Slave Oligarchy.” That is to say, maintaining the slaveholders’ right of property in their slaves, but depriving them of the political influence which that property naturally gives them.

5. The imposture of “The Suppression of the Slave Trade.” That is to say, the suppression of the slave trade by statutes, which slaveholding juries are expected to execute; the suppression of the slave trade, while the slave markets are kept open; the suppression of the slave trade in native Africans, while maintaining the slavery of native Americans.

6. The imposture of a party, calling itself “Republican,” and professing to be a strictly constitutional party; and yet refusing to perform the only duty which the constitution enjoins under the specific name of “Republican.”

7. The imposture of declaring that the constitution of the United States can be “the supreme law of the land,” and yet have no effect in fixing the political status of the people.

8. The imposture of “State Rights.” That is to say, the imposture of declaring that the States can reduce everybody, or anybody, to slavery, and thus deprive them of all rights under the national government; and yet the national government have no right to interfere for their protection.

9. The imposture of assuming that a government, which purports to be distinctly the government of the United States, and of no other country or people on earth, should have (as the Republicans claim) so much more political power over countries and peoples outside of the United States, than it has over those within the United States.

10. The imposture of assuming that the Republicans or any body else can make great conquests for liberty, and at the same time do nothing at all to the injury of slavery.

11. The consummate imposture of supposing that rhetoric, and fustian, and bombast, are the only weapons necessary to rid the earth of tyrants.

12. The transcendent imposture of supposing that the Republican party itself is, or ever has been, any thing else than an imposture.

We could probably find still other “heads” of this Republican imposture, if we had leisure and inclination to search for them. But, however many we might find, we should undoubtedly find them all filled with the same kind of emptiness as those we have enumerated.

But infidelity to their own convictions of the true character of the constitution of the United States, in its relation to slavery, is the crowning inconsistency, hypocrisy, and crime of large numbers, at least, of the Republican faction.

There is no reason to doubt that very large numbers of that wing of the party, which is sincerely favorable to liberty, including a due proportion of their public men, believe that the constitution of the United States is not only free itself from the stain of slavery, but that it gives liberty to all “the people of the United States,” “any thing in the constitutions or laws of the States to the contrary notwithstanding.”

Of the public men, who hold this belief, there is much evidence before the public, tending to prove—probably sufficient rationally to prove—that William H. Seward is one; that such has been his belief for many years; and that he has intended to avow it, and act upon it, so soon as he could do so with safety to his political aspirations. Nevertheless, such was the unprincipled character of the faction on whom he relied for his aggrandizement, and such the unprincipled character of the man himself (notwithstanding he has been supposed to combine more ability, courage, and integrity, than any other man of the faction) that, on the 29th of February last, he was weak and wicked enough, in view of his political exigencies, not only to ignore all constitutional opinions favorable to liberty, but virtually to ignore all the moral sentiments he had ever professed on the subject. With a deliberate heartlessness, so monstrous as to be disgusting, he treated of four millions of human beings—having the same natural rights with himself—and having also, in his own estimation (as we think) equal political rights with himself, under the constitution he had sworn to support—we say he heartlessly treated of these four millions of men, and their posterity, as so much capital—not, perhaps, the best form of capital—but whether, or not, the best form of capital, was for the owners to judge, and for experience to determine. And if, before this experiment should be closed, anybody should presume to recognize them as men, and attempt to convert them from capital into men; or recognize them as citizens of the United States, and go to Edition: current; Page: [50] their rescue (as any one, on the hypothesis of their being such citizens, might legally do) such a person, said Mr. Seward, must necessarily, and may justly, be hung.

Thus this shameless man stood out, and stripped himself before the eyes of all people, and labored, in their presence, to cover himself all over with this moral and political filth, in order to deaden the hated odors of liberty, humanity, and justice, which he feared might be still clinging to him, as relics of his former professions (and principles, if he ever had any), and thereby fit himself, if possible, to become the candidate of his faction. And the infamous character of the faction itself is to be inferred from the fact, that all this self-defilement, on his part, was unsuccessful to secure for him their confidence. They feared that at least the smell of liberty might still be upon him; and, therefore, fixed their choice upon one, who, if not more clear of all real love for freedom, was at least less suspected of any such disqualification.

What we have supposed to be true of Mr. Seward, we have good reason to believe to be also true of several, perhaps many, other Republican members of congress, viz., that, believing the slaves in this country to be, in the view of the constitution of the United States, full citizens of the United States, equally with themselves, they nevertheless, for the sake of gaining power, publicly acknowledge and declare their enslavement to be constitutional, and that the general government has no authority to liberate them.

We think the friends of liberty, in every congressional district, should look sharply after their representatives on this point. We do not wish to send men to congress, who will belie the constitution, they swear to support. We do not even wish to send them there to give us essays on the moral nature of slavery. We understand that matter already. But, as John Brown would say, we want men there, who, believing the constitution gives liberty to all, will put the thing through.

We understand the reasons given, in private, by these men, why they do not declare that slavery is unconstitutional, and that the general government has power to abolish it, to be, That the people are not ready for it! That the Republicans must first get Edition: current; Page: [51] possession of the government! That is to say, these men must persist in their false asseverations, that the general government has no power to abolish slavery; that they, if placed in possession of that government, never will abolish it; but will, on the contrary, sustain it in the States where it is—they must persist in these asseverations, until they get the general government into their hands; then, as they wish it to be inferred, they will avow the fraud by which they obtained their power; will take it for granted that the people are ready to be informed what the constitutional law of the country really is; and will proceed to put it into execution, by giving liberty to all!

Spirits of Hampden, and Pym, and Sidney, and Elliot; of Otis, and Jefferson, and the Adamses! Did you, in the full possession of freedom of speech and the press; with steam and electricity to carry your words to the people; with boundless wealth, the moral sentiments of the world, and the constitutional law of your countries, on your side—did you, under such circumstances as these, resist tyranny, by asserting it to be legal, and swearing that you would support it, where it prevailed? and declaring that you would only oppose its extension into new regions? Did you do all this under the pretence that the people were not ready for the truth? that you must get possession of all the high places of power, before you could do or say any thing for freedom? and that, when you should have obtained these places, you would declare the frauds and perjuries you had committed to gain them? and would then become traitors to tyranny, and faithful to freedom? Was it by such ways as these, that you prepared the hearts of the people to stand by you in the great struggles which you saw before you? Or did you not rather, in the midst of poverty; with feeble means of communication and concert; and with dungeons and scaffolds before your eyes, proclaim, with all your strength, that tyranny, in its veriest strongholds, was but an usurpation? confident in the truth, that, next to the law of nature, the constitutional law of your countries was the strongest weapon you could use in behalf of liberty? and that fraud, and falsehood, and perjury were instruments as useless and suicidal as they were base?

Tell us, also, are the men we now have among us, the Sewards, and Chases, and Sumners, and Greeleys, and Lincolns, and Hales—are these, and such men as these, your legitimate successors? If they are, why have not mankind spit upon your memories?

XXIV.

It is abundantly evident, from what has now been said, that the constitution of the United States, “the supreme law of the land,” must necessarily fix the status of every individual, within the United States, either as a free person, or a slave; and that it must do this, “any thing in the constitution or laws of any State to the contrary notwithstanding.” It is also abundantly evident that, if any person be made free by that supreme law, he is free everywhere under that law; and that, if any one be made a slave by that law, then, constitutionally speaking, he is a slave everywhere under that law; and his owner may carry him, and hold him, as property, wherever he pleases, within the United States, free of all responsibility to the constitutions or laws of the States.

It is also evident that, if the United States constitution itself makes a man slave, the general government, no more than the State governments, can give him his freedom.

The real issue, then, before the country, is, whether slavery is lawful everywhere within the United States, with no power, either in the general or State governments, to prohibit it, without an amendment to the constitution of the United States? or whether it be unlawful everywhere, within the United States, and it be the duty of both the general and State governments to prohibit it?

We entreat all, who act politically under the constitution of the United States, to keep this issue distinctly in view, and to hold all men and all parties strictly to it; and to give no vote, and no word of sympathy or support, to any man, or body of men, who either evade it, or hesitate, or equivocate about it. Above all, give no vote or support to those public men, who give their rant, Edition: current; Page: [53] declamation, and pretended moral sentiments to liberty, and, at the same time, give over to slavery the constitution of the country, and their oaths to support it. These men are practically the best supporters of slavery there now are in the country. They do it a service, which no other men can. From the confidence reposed in their professions, they have power to deceive honest men as to their rights and duties under the constitution, and thus hold them back from any direct assault, political or otherwise. And this power they are exerting to their utmost for the security of slavery. The open friends of slavery have nearly or quite lost all power of this kind. They have also deprived themselves of nearly all moral sympathy and support. By their indiscreet and head-long zeal for slavery, they long ago disgusted everybody but themselves. They have now succeeded in disgusting even themselves, especially in the north. Their ranks are broken, their minds disaffected, and both their moral and political power in a great measure wasted away. Should any one of the factions, into which they are divided, succeed in filling the executive department of the government, that acquisition will give them no real power in the country. Their possession of that department, therefore, is not a thing to be dreaded. Better, far better, that the presidency should be in the hands of an open, but powerless enemy of liberty, than in those of a powerful, but false, perjured, and traitorous friend.

We, therefore, entreat that all, who give their votes at all, at the ensuing election, will give them unequivocally for freedom. It will not be necessary that they should wait for, or that there should be, any national nomination of candidates. It will be sufficient that, in each State, electoral candidates be named. If any of them should be chosen, they can give their votes (as the constitution contemplated they would give them), for the persons they shall think most worthy.

But if, as is very likely to be the result, no one of these electoral candidates should be chosen, the votes given for them will nevertheless not have been thrown away. The great object is to procure the defeat of the Republicans. If defeated on the sixth of November, the faction itself will be extinct on the seventh. Those Edition: current; Page: [54] of its members who intend to support slavery, will then go over openly into its ranks; while those who intend to support liberty, will come unmistakably to her side. She will then know her friends from her foes. And thenceforth the issue will be distinctly made up, whether this be, or be not, a free country for all? And this one issue will hold its place before the country, until it shall be decided in favor of freedom.

“The House of Representatives shall be composed of members, chosen every second year by the people of the several States; and the electors in each State shall have the requisite qualifications for electors of the most numerous branch of the State legislature.”—Art. I., sec. 2.

If, instead of going to the rescue of a fellow-citizen, whom we see set upon by a robber, ravisher, kidnapper, or murderer, we connive at the crime, either by declaring the act legal, or encouraging the idea that it can be committed with impunity, we thereby make ourselves accomplices in the crime. By this rule, if the persons enslaved in this country are, in the view of the United States Constitution, citizens of the United States, equally with the other citizens of the United States, and we nevertheless connive at and encourage their enslavement, either by declaring it legal, or by holding out the hope that it can be done with impunity, we are, not merely in the view of the moral law, but in the view of the constitution of the United States, criminal accomplices in their enslavement.

This being a case, in which a State was a party, it was tried by jury in the Supreme Court of the United States. From the preliminary remarks of the Chief-Justice, it will be seen that the judges were unanimous in the opinion given. He said:

“It is fortunate on the present, as it must be on every occasion, to find the opinion of the court unanimous. We entertain no diversity of sentiment; and we have experienced no difficulty in uniting in the charge, which it is my province to deliver. . . . .

“It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact, it is province of the jury, on questions of law, it is the province of the court, to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law, as well as the fact, in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision.” (State of Georgia, vs. Brailsford; III. Dallas, Rep. 1.)

This was in the year 1794.

This question of the power of congress to govern countries outside of the United States, has been twice before the supreme court of the United States. In both cases, although the court declared that “the possession of the power was unquestioned,” their efforts to show in what part of the constitution the power was to be found, seemed to be very unsatisfactory, even to themselves.

In the first case, the court said:—

“In the meantime, Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution, which empowers congress ‘to make all needful rules and regulations respecting the territory, or other property of the United States.’

“Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts, that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern, may be the inevitable consequence of the right to acquire, territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned.” (Am. Ins. Co. vs. Canter; I. Peters, 542.)

Here three possible sources of the power are suggested; but which one of the three is the true source, the court seem wholly unable to decide. It would seem to have been much more in keeping with judicial propriety and integrity, to have definitely determined the source of the power, before declaring that “whichever may be the source whence the power is derived, the possession of it is unquestioned.” How the court can say that “the possession of a power is unquestioned,” so long as they are unable to determine in what part of the constitution the power is to be found, is, to say the least of it, very mysterious. Nothing, evidently, short of that infallible discernment, which supreme courts assume to possess, could authorize them to affirm thus positively the existence of a power, the source of which they could not discover.

We assume that it has already been shown that the first of these suggestions, viz., that the power to govern territory, outside of the United States, is included in “the power to dispose of, and make all needful rules and regulations respecting the territory, or other property belonging to the United States,” is wholly unfounded.

The second suggestion, viz., that the power “may result necessarily from the facts that the territory is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States,” assumes the whole point in dispute, which is—whether territory and people, outside of the United States, are “within the power and jurisdiction of the United States.”

The third suggestion, viz., that “the right to govern, may be the inevitable consequence of the right to acquire, territory,” again assumes the whole point in dispute, which is—whether the United States have the right to acquire—that is, to purchase—territory and peoples outside of the United States.

It is plainly against the law of nature, and therefore impossible, for governments to acquire any rightful ownership of wilderness lands, and withhold them from, or demand a price for them of, those persons, who wish to take actual possession of them, and cultivate them. As it is impossible for any nation to have any rightful property in wild lands, it is impossible for one nation to convey any such ownership to another. It is, therefore, impossible that the United States can “acquire”—that is, purchase—any such ownership.

It is also against nature, and therefore impossible, that any government should own its people, as property, and have the right to dispose of them, as property. It is, therefore, impossible that the United States can “acquire,” by treaty, any ownership of people outside of the United States, or consequently any right to govern them.

In the case of Dred Scott, the same question came again before the court. And the court (19 Howard, 443) cited and adopted the opinion previously given, viz., that “whichever may be the source whence the power is derived, the possession of it is unquestioned.” But they offered no new argument in its support, except the intimation (p. 447) that the power to admit new States into the Union might “authorize the acquisition of territory, not fit for admission at the time, but to be admitted as soon as its population and situation entitle it to admission.”

But there would be just as much reason in saying that, because A has the right to admit B as a partner in business, therefore he has a right to buy him, and hold him as a slave, until he is fit to be admitted as a partner.

The court confess (p. 446) that—

“There is certainly no power given by the constitution to the federal government to establish or maintain colonies, bordering on the United States, or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its own territorial limits in any way, except by the admission of new States. . . . No power is given to acquire a territory to be held and governed permanently in that character.”

But they say (p. 447) that—

“It [the territory] is acquired to become a State, and not to be held as a colony, and governed by congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State, upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the government, and not for the judicial; and whatever the political department of the government shall recognize as within the limits of the United States, the judicial department is also bound to recognize, and to administer in it the laws of the United States,” &c. &c.

This pretence of the court, that although the United States have no power to buy territory, and govern it as a colony for ever, they nevertheless have a right to buy it and govern it as a colony, until congress, in the exercise of its discretion, shall see fit to admit it as a State, is an entire fabrication and fraud. There is nothing whatever, in the constitution, that requires congress ever to admit a territory as a State. And if congress have authority to buy territory, and govern it as a colony at all, they have a right to hold it, and govern it as a colony for ever.

The truth is, that all our constitutional law on this subject—that is to say, all the constitutional law that has been practically acted upon by congress—instead of being found in our own constitution, is found only where nearly all the rest of our constitutional law is found, viz., in the tyrannical practices of other governments; and especially in the tyrannical practices of the English Government. Because other governments usurp the ownership of wild lands, and demand a price for them, our government does the same. Because other governments have colonies, and govern them against their will, our government usurps authority to do the same. And because other nations claim to own their colonies as property, and assume to sell them as such, our government claims the right to buy any that may be in the market. When, in truth, it has no more right to buy the people of other nations, than to sell those of our own.

CONTENTS OF PART FIRST.

• CHAPTER I.—WHAT IS LAW? - - - - - - page 5
• CHAPTER II.—WRITTEN CONSTITUTIONS, - - - - 15
• CHAPTER III.—THE COLONIAL CHARTERS, - - - - 21
• CHAPTER IV.—COLONIAL STATUTES, - - - - - 32
• CHAPTER V.—THE DECLARATION OF INDEPENDENCE, - 36
• CHAPTER VI.—THE STATE CONSTITUTIONS OF 1789. MEANING OF THE WORD “FREE,” } - 39
• CHAPTER VII.—THE ARTICLES OF CONFEDERATION, - 51
• CHAPTER VIII.—THE CONSTITUTION OF THE UNITED STATES, 54
• CHAPTER IX.—THE INTENTIONS OF THE CONVENTION, - 114
• CHAPTER X.—THE PRACTICE OF THE GOVERNMENT, - 123
• CHAPTER XI.—THE UNDERSTANDING OF THE PEOPLE, - 124
• CHAPTER XII.—THE STATE CONSTITUTIONS OF 1845, - 126
• CHAPTER XIII.—THE CHILDREN OF SLAVES ARE BORN FREE, 129

☞ Appendix A. has been added to the former edition of this work; also the second note on page 264.

CHAPTER I.: WHAT IS LAW?

Before examining the language of the Constitution, in regard to Slavery, let us obtain a view of the principles, by virtue of which law arises out of those constitutions and compacts, by which people agree to establish government.

To do this it is necessary to define the term law. Popular opinions are very loose and indefinite, both as to the true definition of law, and also as to the principle, by virtue of which law results from the compacts or contracts of mankind with each other.

What then is Law? That law, I mean, which, and which only, judicial tribunals are morally bound, under all circumstances, to declare and sustain?

In answering this question, I shall attempt to show that law is an intelligible principle of right, necessarily resulting from the nature of man; and not an arbitrary rule, that can be established by mere will, numbers or power.

To determine whether this proposition be correct, we must look at the general signification of the term law.

The true and general meaning of it, is that natural, permanent, unalterable principle, which governs any particular thing or class of things. The principle is strictly a natural one; and the term applies to every natural principle, whether mental, moral or physical. Thus we speak of the laws of mind; meaning thereby those natural, universal and necessary principles, according to which mind acts, or by which it is governed. We speak too of the moral law; which is merely an universal principle of moral obligation, that arises out of the nature of men, and their relations to each Edition: current; Page: [6] other, and to other things—and is consequently as unalterable as the nature of men. And it is solely because it is unalterable in its nature, and universal in its application, that it is denominated law. If it were changeable, partial or arbitrary, it would be no law. Thus we speak of physical laws; of the laws, for instance, that govern the solar system; of the laws of motion, the laws of gravitation, the laws of light, &c., &c.—Also the laws that govern the vegetable and animal kingdoms, in all their various departments: among which laws may be named, for example, the one that like produces like. Unless the operation of this principle were uniform, universal and necessary, it would be no law.

Law, then, applied to any object or thing whatever, signifies a natural, unalterable, universal principle, governing such object or thing. Any rule, not existing in the nature of things, or that is not permanent, universal and inflexible in its application, is no law, according to any correct definition of the term law.

What, then, is that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men? Those rights of person, property, &c., which one human being has, as against other human beings?

I shall define it to be simply the rule, principle, obligation or requirement of natural justice.

This rule, principle, obligation or requirement of natural justice, has its origin in the natural rights of individuals, results necessarily from them, keeps them ever in view as its end and purpose, secures their enjoyment, and forbids their violation. It also secures all those acquisitions of property, privilege and claim, which men have a natural right to make by labor and contract.

Such is the true meaning of the term law, as applied to the civil rights of men. And I doubt if any other definition of law can be given, that will prove correct in every, or necessarily in any possible case. The very idea of law originates in men’s natural rights. There is no other standard, than natural rights, by which civil law can be measured. Law has always been the name of that rule or principle of justice, which protects those rights. Thus we speak of natural law. Natural law, in fact, constitutes the great body of the law that is professedly administered by judicial tribunals: and it always necessarily must be—for it is impossible to anticipate a thousandth part of the cases that arise, so as to enact a special law for them. Wherever the cases have Edition: current; Page: [7] not been thus anticipated, the natural law prevails. We thus politically and judicially recognize the principle of law as originating in the nature and rights of men. By recognizing it as originating in the nature of men, we recognize it as a principle, that is necessarily as immutable, and as indestructible as the nature of man. We also, in the same way, recognize the impartiality and universality of its application.

If, then, law be a natural principle—one necessarily resulting from the very nature of man, and capable of being destroyed or changed only by destroying or changing the nature of man—it necessarily follows that it must be of higher and more inflexible obligation than any other rule of conduct, which the arbitrary will of any man, or combination of men, may attempt to establish. Certainly no rule can be of such high, universal and inflexible obligation, as that, which, if observed, secures the rights, the safety and liberty of all.

Natural law, then, is the paramount law. And, being the paramount law, it is necessarily the only law: for, being applicable to every possible case that can arise touching the rights of men, any other principle or rule, that should arbitrarily be applied to those rights, would necessarily conflict with it. And, as a merely arbitrary, partial and temporary rule must, of necessity, be of less obligation than a natural, permanent, equal and universal one, the arbitrary one becomes, in reality, of no obligation at all, when the two come in collision. Consequently there is, and can be, correctly speaking, no law but natural law. There is no other principle or rule, applicable to the rights of men, that is obligatory in comparison with this, in any case whatever. And this natural law is no other than that rule of natural justice, which results either directly from men’s natural rights, or from such acquisitions as they have a natural right to make, or from such contracts as they have a natural right to enter into.

Natural law recognizes the validity of all contracts which men have a natural right to make, and which justice requires to be fulfilled: such, for example, as contracts that render equivalent for equivalent, and are at the same time consistent with morality, the natural rights of men, and those rights of property, privilege, &c., which men have a natural right to acquire by labor and contract.

Natural law, therefore, inasmuch as it recognizes the natural right of men to enter into obligatory contracts, permits the formation of government, founded on contract, as all our governments Edition: current; Page: [8] profess to be. But in order that the contract of government may be valid and lawful, it must purport to authorize nothing inconsistent with natural justice, and men’s natural rights. It cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government—which is but an association or individuals—than to a single individual. They are a necessary attribute of man’s nature; and he can no more part with them—to government or anybody else—than with his nature itself. But the contract of government may lawfully authorize the adoption of means—not inconsistent with natural justice—for the better protection of men’s natural rights. And this is the legitimate and true object of government. And rules and statutes, not inconsistent with natural justice and men’s natural rights, if enacted by such government, are binding, on the ground of contract, upon those who are parties to the contract, which creates the government, and authorizes it to pass rules and statutes to carry out its objects.*

But natural law tries the contract of government, and declares it lawful or unlawful, obligatory or invalid, by the same rules by which it tries all other contracts between man and man. A contract for the establishment of government, being nothing but a voluntary contract between individuals for their mutual benefit, differs, in nothing that is essential to its validity from any other contract between man and man, or between nation and nation. If two individuals enter into a contract to commit trespass, theft, robbery or murder upon a third, the contract is unlawful and void, simply because it is a contract to violate natural justice, or men’s natural rights. If two nations enter into a treaty, that they will unite in plundering, enslaving or destroying a third, the treaty is unlawful, void and of no obligation, simply because it is contrary Edition: current; Page: [9] to justice and men’s natural rights. On the same principle, if the majority, however large, of the people of a country, enter into a contract of government, called a constitution, by which they agree to aid, abet or accomplish any kind of injustice, or to destroy or invade the natural rights of any person or persons whatsoever, whether such persons be parties to the compact or not, this contract of government is unlawful and void—and for the same reason that a treaty between two nations for a similar purpose, or a contract of the same nature between two individuals, is unlawful and void. Such a contract of government has no moral sanction. It confers no rightful authority upon those appointed to administer it. It confers no legal or moral rights, and imposes no legal or moral obligation upon the people who are parties to it. The only duties, which any one can owe to it, or to the government established under color of its authority, are disobedience, resistance, destruction.

Judicial tribunals, sitting under the authority of this unlawful contract or constitution, are bound, equally with other men, to declare it, and all unjust enactments passed by the government in pursuance of it, unlawful and void. These judicial tribunals cannot, by accepting office under a government, rid themselves of that paramount obligation, that all men are under, to declare, if they declare anything, that justice is law; that government can have no lawful powers, except those with which it has been invested by lawful contract; and that an unlawful contract for the establishment of government, is as unlawful and void as any other contract to do injustice.

No oaths, which judicial or other officers may take, to carry out and support an unlawful contract or constitution of government, are of any moral obligation. It is immoral to take such oaths, and it is criminal to fulfil them. They are, both in morals and law, like the oaths which individual pirates, thieves and bandits give to their confederates, as an assurance of their fidelity to the purposes for which they are associated. No man has any moral right to assume such oaths; they impose no obligation upon those who do assume them; they afford no moral justification for official acts, in themselves unjust, done in pursuance of them.

If these doctrines are correct, then those contracts of government, state and national, which we call constitutions, are void, and unlawful, so far as they purport to authorize, (if any of them do authorize,) anything in violation of natural justice, or the natural Edition: current; Page: [10] rights of any man or class of men whatsoever. And all judicial tribunals are bound, by the highest obligations that can rest upon them, to declare that these contracts, in all such particulars, (if any such there be,) are void, and not law. And all agents, legislative, executive, judicial and popular, who voluntarily lend their aid to the execution of any of the unlawful purposes of the government, are as much personally guilty, according to all the moral and legal principles, by which crime, in its essential character, is measured, as though they performed the same acts independently, and of their own volition.

Such is the true character and definition of law. Yet, instead of being allowed to signify, as it in reality does, that natural, universal and inflexible principle, which has its origin in the nature of man, keeps pace everywhere with the rights of man, as their shield and protector, binds alike governments and men, weighs by the same standard the acts of communities and individuals, and is paramount in its obligation to any other requirement which can be imposed upon men—instead, I say, of the term law being allowed to signify, as it really does, this immutable and overruling principle of natural justice, it has come to be applied to mere arbitrary rules of conduct, prescribed by individuals, or combinations of individuals, self-styled governments, who have no other title to the prerogative of establishing such rules, than is given them by the possession or command of sufficient physical power to coerce submission to them.

The injustice of these rules, however palpable and atrocious it may be, has not deterred their authors from dignifying them with the name of law. And, what is much more to be deplored, such has been the superstition of the people, and such their blind veneration for physical power, that this injustice has not opened their eyes to the distinction between law and force, between the sacred requirements of natural justice, and the criminal exactions of unrestrained selfishness and power. They have thus not only suffered the name of law to be stolen, and applied to crime as a cloak to conceal its true nature, but they have rendered homage and obedience to crime, under the name of law, until the very name of law, instead of signifying, in their minds, an immutable principle of right, has come to signify little more than an arbitrary command of power, without reference to its justice or its injustice, its innocence or its criminality. And now, commands the most criminal, if christened with the name of law, obtain nearly as ready an Edition: current; Page: [11] obedience, oftentimes a more ready obedience, than law and justice itself. This superstition, on the part of the people, which has thus allowed force and crime to usurp the name and occupy the throne of justice and law, is hardly paralleled in its grossness, even by that superstition, which, in darker ages of the world, has allowed falsehood, absurdity and cruelty to usurp the name and the throne of religion.

But I am aware that other definitions of law, widely different from that I have given, have been attempted—definitions too, which practically obtain, to a great extent, in our judicial tribunals, and in all the departments of government. But these other definitions are nevertheless, all, in themselves, uncertain, indefinite, mutable; and therefore incapable of being standards, by a reference to which the question of law, or no law, can be determined. Law, as defined by them, is capricious, arbitrary, unstable; is based upon no fixed principle; results from no established fact; is susceptible of only a limited, partial and arbitrary application; possesses no intrinsic authority; does not, in itself, recognize any moral principle; does not necessarily confer upon, or even acknowledge in individuals, any moral or civil rights; or impose upon them any moral obligation.

For example. One of these definitions—one that probably embraces the essence of all the rest—is this:

That “law is a rule of civil conduct, prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear.”—Noah Webster.

In this definition, hardly anything, that is essential to the idea of law, is made certain. Let us see. It says that,

“Law is a rule of civil conduct, prescribed by the supreme power of a state.”

What is the “supreme power,” that is here spoken of, as the fountain of law? Is it the supreme physical power? Or the largest concentration of physical power, whether it exist in one man or in a combination of men? Such is undoubtedly its meaning. And if such be its meaning, then the law is uncertain; for it is oftentimes uncertain where, or in what man, or body of men, in a state, the greatest amount of physical power is concentrated. Whenever a state should be divided into factions, no one having the supremacy of all the rest, law would not merely be inefficient, but the very principle of law itself would be actually extinguished. And men would have no “rule of civil conduct.” This result alone is sufficient to condemn this definition.

Again. If physical power be the fountain of law, then law and force are synonymous terms. Or, perhaps, rather, law would be the result of a combination of will and force; of will, united with a physical power sufficient to compel obedience to it, but not necessarily having any moral character whatever.

Are we prepared to admit the principle, that there is no real distinction between law and force? If not, we must reject this definition.

It is true that law may, in many cases, depend upon force as the means of its practical efficiency. But are law and force therefore identical in their essence?

According to this definition, too, a command to do injustice, is as much law, as a command to do justice. All that is necessary, according to this definition, to make the command a law, is that it issue from a will that is supported by physical force sufficient to coerce obedience.

Again. If mere will and power are sufficient, of themselves, to establish law—legitimate law—such law as judicial tribunals are morally bound, or even have a moral right to enforce—then it follows that wherever will and power are united, and continue united until they are successful in the accomplishment of any particular object, to which they are directed, they constitute the only legitimate law of that case, and judicial tribunals can take cognizance of no other.

And it makes no difference, on this principle, whether this combination of will and power be found in a single individual, or in a community of an hundred millions of individuals.—The numbers concerned do not alter the rule—otherwise law would be the result of numbers, instead of “supreme power.” It is therefore sufficient to comply with this definition, that the power be equal to the accomplishment of the object. And the will and power of one man are therefore as competent to make the law relative to any acts which he is able to execute, as the will and power of millions of men are to make the law relative to any acts which they are able to accomplish.

On this principle, then—that mere will and power are competent to establish the law that is to govern an act, without reference to the justice or injustice of the act itself, the will and power of any single individual to commit theft, would be sufficient to make theft lawful, as lawful as is any other act of injustice, which the will and power of communities, or large bodies of men, may be Edition: current; Page: [13] united to accomplish. And judicial tribunals are as much bound to recognize, as lawful, any act of injustice or crime, which the will and power of a single individual may have succeeded in accomplishing, as they are to recognize as lawful any act of injustice, which large and organized bodies of men, self-styled governments, may accomplish.

But, perhaps it will be said that the soundness of this definition depends upon the use of the word “state”—and that it therefore makes a distinction between “the supreme power of a state,” over a particular act, and the power of an individual over the same act.

But this addition of the word “state,” in reality leaves the definition just where it would have been without it. For what is “a state?” It is just what, and only what, the will and power of individuals may arbitrarily establish.

There is nothing fixed in the nature, character or boundaries of “a state.” Will and power may alter them at pleasure. The will and power of Nicholas, and that will and power which he has concentrated around, or rather within himself, establishes all Russia, both in Europe and Asia, as “a state.” By the same rule, the will and power of the owner of an acre of ground, may establish that acre as a state, and make his will and power, for the time being, supreme and lawful within it.

The will and power, also, that established “a state” yesterday, may be overcome to-day by an adverse will and power, that shall abolish that state, and incorporate it into another, over which this latter will and power shall to-day be “supreme.” And this latter will and power may also to-morrow be overcome by still another will and power mightier than they.

“A state,” then, is nothing fixed, permanent or certain in its nature. It is simply the boundaries, within which any single combination or concentration of will and power are efficient, or irresistible, for the time being.

This is the only true definition that can be given of “a state.” It is merely an arbitrary name given to the territorial limits of power. And if such be its true character, then it would follow, that the boundaries, though but two feet square, within which the will and power of a single individual are, for the time being, supreme, or irresistible, are, for all legal purposes, “a state”—and his will and power constitute, for the time being, the law within those limits; and his acts are, therefore, for the time being, Edition: current; Page: [14] as necessarily lawful, without respect to their intrinsic justice or injustice, as are the acts of larger bodies of men, within those limits where their will and power are supreme and irresistible.

If, then, law really be what this definition would make it, merely “a rule of civil conduct prescribed by the supreme power of a state”—it would follow, as a necessary consequence, that law is synonymous merely with will and force, wherever they are combined and in successful operation, for the present moment.

Under this definition, law offers no permanent guaranty for the safety, liberty, rights or happiness of any one. It licenses all possible crime, violence and wrong, both by governments and individuals. The definition was obviously invented by, and is suited merely to gloss over the purposes of, arbitrary power. We are therefore compelled to reject it, and to seek another, that shall make law less capricious, less uncertain, less arbitrary, more just, more safe to the rights of all, more permanent. And if we seek another, where shall we find it, unless we adopt the one first given, viz., that law is the rule, principle, obligation or requirement of natural justice?

Adopt this definition, and law becomes simple, intelligible, scientific; always consistent with itself; always harmonizing with morals, reason and truth. Reject this definition, and law is no longer a science: but a chaos of crude, conflicting and arbitrary edicts, unknown perchance to either morals, justice, reason or truth, and fleeting and capricious as the impulses of will, interest and power.

If, then, law really be nothing other than the rule, principle obligation or requirement of natural justice, it follows that government can have no powers except such as individuals may rightfully delegate to it: that no law, inconsistent with men’s natural rights, can arise out of any contract or compact of government: that constitutional law, under any form of government, consists only of those principles of the written constitution, that are consistent with natural law, and man’s natural rights; and that any other principles, that may be expressed by the letter of any constitution, are void and not law, and all judicial tribunals are bound to declare them so.

Though this doctrine may make sad havoc with constitutions and statute books, it is nevertheless law. It fixes and determines the real rights of all men; and its demands are as imperious as any that can exist under the name of law.

It is possible, perhaps, that this doctrine would spare enough of our existing constitutions, to save our governments from the necessity of a new organization. But whatever else it might spare, one thing it would not spare. It would spare no vestige of that system of human slavery, which now claims to exist by authority of law.*

CHAPTER II.: WRITTEN CONSTITUTIONS.

Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals—let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.

In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law Edition: current; Page: [16] contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal Edition: current; Page: [17] rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor Edition: current; Page: [18] of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit:

“Where rights are infringed, where fundamental principles are Edition: current; Page: [19] 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.”*

It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law.

For the more convenient consideration of this point, we will divide the constitutional history of the country into three periods; the first embracing the time from the first settlement of the country up to the Declaration of Independence; the second embracing the time from the Declaration of Independence to the adoption of the Constitution of the United States in 1789; and the third embracing all the time since the adoption of the Constitution of the United States.

Let us now consider the first period; that is, from the settlement of the country, to the Declaration of Independence.

CHAPTER III.: THE COLONIAL CHARTERS.

When our ancestors came to this country, they brought with them the common law of England, including the writ of habeas corpus, (the essential principle of which, as will hereafter be shown, is to deny the right of property in man,) the trial by jury, and the other great principles of liberty, which prevail in England, and which have made it impossible that her soil should be trod by the foot of a slave.

These principles were incorporated into all the charters, granted to the colonies, (if all those charters were like those I have examined, and I have examined nearly all of them.)—The general provisions of those charters, as will be seen from the extracts given in the note, were, that the laws of the colonies should “not be repugnant or contrary, but, as nearly as circumstances would allow, conformable to the laws, statutes and rights of our kingdom of England.”*

Those charters were the fundamental constitutions of the colonies, with some immaterial exceptions, up to the time of the revolution; as much so as our national and state constitutions are now the fundamental laws of our governments.

The authority of these charters, during their continuance, and the general authority of the common law, prior to the revolution, have been recognized by the Supreme Court of the United States.*

No one of all these charters that I have examined—and I have examined nearly all of them—contained the least intimation that slavery had, or could have any legal existence under them. Slavery was therefore as much unconstitutional in the colonies, as it was in England.

It was decided by the Court of King’s Bench in England—Lord Mansfield being Chief Justice—before our revolution, and while the English Charters were the fundamental law of the colonies—that the principles of English liberty were so plainly incompatible with slavery, that even if a slaveholder, from another part of the world, brought his slave into England—though only for a temporary purpose, and with no intention of remaining—he nevertheless thereby gave the slave his liberty.

Previous to this decision, the privilege of bringing slaves into England, for temporary purposes, and of carrying them away, had long been tolerated.

This decision was given in the year 1772.* And for aught I see, it was equally obligatory in this country as in England, and must have freed every slave in this country, if the question had then been raised here. But the slave knew not his rights, and had no one to raise the question for him.

The fact, that slavery was tolerated in the colonies, is no evidence of its legality; for slavery was tolerated, to a certain extent, in England, (as we have already seen,) for many years previous to the decision just cited—that is, the holders of slaves from abroad were allowed to bring their slaves into England, hold them during their stay there, and carry them away when they went. But the toleration of this practice did not make it lawful, notwithstanding all customs, not palpably and grossly contrary to the principles of English liberty, have great weight, in England, in establishing law.

The fact, that England tolerated, (i. e. did not punish criminally,) the African slave-trade at that time, could not legally establish slavery in the colonies, any more than it did in England—especially in defiance of the positive requirements of the charters, that the colonial legislation should be consonant to reason, and not repugnant to the laws of England.

Besides, the mere toleration of the slave trade could not make slavery itself—the right of property in man—lawful anywhere; Edition: current; Page: [24] not even on board the slave ship. Toleration of a wrong is not law. And especially the toleration of a wrong, (i. e. the bare omission to punish it criminally,) does not legalize one’s claim to property obtained by such wrong. Even if a wrong can be legalized at all, so as to enable one to acquire rights of property by such wrong, it can be done only by an explicit and positive provision.

The English statutes, on the subject of the slave trade, (so far as I have seen,) never attempted to legalize the right of property in man, in any of the thirteen North American colonies. It is doubtful whether they ever attempted to do it anywhere else. It is also doubtful whether Parliament had the power—or perhaps rather it is certain that they had not the power—to legalize it anywhere, if they had attempted to do so.* And the cautious and curious phraseology of their statutes on the subject, indicates plainly that they themselves either doubted their power to legalize it, or feared to exercise it. They have therefore chosen to connive at slavery, to insinuate, intimate, and imply their approbation of it, rather than risk an affirmative enactment declaring that one man may be the property of another. But Lord Mansfield said, in Somerset’s case, that slavery was “so odious that nothing can be suffered to support it, but positive law.” No such positive law (I presume) was ever passed by Parliament—certainly not with reference to any of these thirteen colonies.

The statute of 1788, (which I have not seen,) in regard to the slave trade, may perhaps have relieved those engaged in it, in certain cases, from their liability to be punished criminally for the act. But there is a great difference between a statute, that should merely screen a person from punishment for a crime, and one that should legalize his right to property acquired by the crime. Besides, this act was passed after the separation between America and England, and therefore could have done nothing towards legalizing slavery in the United States, even if it had legalized it in the English dominions.

The statutes of 1750, (23, George 2d, Ch. 31,) may have possibly authorized, by implication, (so far as Parliament could thus authorize,) the colonial governments, (if governments they could be called,) on the coast of Africa, to allow slavery under Edition: current; Page: [25] certain circumstances, and within the “settlements” on that coast. But, if it did, it was at most a grant of a merely local authority. It gave no authority to carry slaves from the African coast. But even if it had purported distinctly to authorize the slave trade from Africa to America, and to legalize the right of property in the particular slaves thereafter brought from Africa to America, it would nevertheless have done nothing towards legalizing the right of property in the slaves that had been brought to, and born in, the colonies for an hundred and thirty years previous to the statute. Neither the statute, nor any right of property acquired under it, (in the individual slaves thereafterwards brought from Africa,) would therefore avail anything for the legality of slavery in this country now; because the descendants of those brought from Africa under the act, cannot now be distinguished from the descendants of those who had, for the hundred and thirty years previous, been held in bondage without law.

But the presumption is, that, even after this statute was passed in 1750, if the slave trader’s right of property in the slave he was bringing to America, could have been brought before an English court for adjudication, the same principles would have been held to apply to it, as would have applied to a case arising within the island of Great Britain. And it must therefore always have been held by English courts, (in consistency with the decisions in Somerset’s case,) that the slave trader had no legal ownership of his slave. And if the slave trader had no legal right of property in his slave, he could transfer no legal right of property to a purchaser in the colonies. Consequently the slavery of those that were brought into the colonies after the statute of 1750, was equally illegal with that of those who had been brought in before.*

The conclusion or the whole matter is, that until some reason appears against them, we are bound by the decision of the King’s Edition: current; Page: [27] Bench in 1772, and the colonial charters. That decision declared that there was, at that time, in England, no right of property in Edition: current; Page: [28] man, (notwithstanding the English government had for a long time connived at the slave trade.)—The colonial charters required Edition: current; Page: [29] the legislation of the colonies to be “consonant to reason, and not repugnant or contrary, but conformable, or agreeable, as nearly as Edition: current; Page: [30] circumstances would allow, to the laws, statutes and rights of the realm of England.” That decision, then, if correct, settled the Edition: current; Page: [31] law both for England and the colonies. And if so, there was no constitutional slavery in the colonies up to the time of the revolution.

CHAPTER IV.: COLONIAL STATUTES.

But the colonial legislation on the subject of slavery, was not only void as being forbidden by the colonial charters, but in many of the colonies it was void for another reason, viz., that it did not sufficiently define the persons who might be made slaves.

Slavery, if it can be legalized at all, can be legalized only by positive legislation. Natural law gives it no aid. Custom imparts to it no legal sanction. This was the doctrine of the King’s Bench in Somerset’s case, as it is the doctrine of common sense. Lord Mansfield said, “So high an act of dominion must be recognized by the law of the country where it is used. * * * The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political—but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from the memory. It is so odious that nothing can be suffered to support it but positive law.”

Slavery, then, being the creature of positive legislation alone, can be created only by legislation that shall so particularly describe the persons to be made slaves, that they may be distinguished from all others. If there be any doubt left by the letter of the law, as to the persons to be made slaves, the efficacy of all other slave legislation is defeated simply by that uncertainty.

In several of the colonies, including some of those where slaves were most numerous, there were either no laws at all defining the persons who might be made slaves, or the laws, which attempted to define them, were so loosely framed that it cannot now be known who are the descendants of those designated as slaves, and who of those held in slavery without any color of law. As the presumption must—under the United States constitution—and indeed under the state constitutions also—be always in favor of liberty, it would probably now be impossible for a slaveholder to prove, in one case in an hundred, that his slave was descended, (through the maternal line, according to the slave code,) from any one who was originally a slave within the description given by the statutes.

When slavery was first introduced into the country, there were no laws at all on the subject. Men bought slaves of the slave traders, as they would have bought horses; and held them, and compelled them to labor, as they would have done horses, that is, by brute force. By common consent among the white race, this practice was tolerated without any law. At length slaves had in this way become so numerous, that some regulations became necessary, and the colonial governments began to pass statutes, which assumed the existence of slaves, although no laws defining the persons who might be made slaves, had ever been enacted. For instance, they passed statutes for the summary trial and punishment of slaves; statutes permitting the masters to chastise and baptize their slaves,* and providing that baptism should not be considered, in law, an emancipation of them. Yet all the while no act had been passed declaring who might be slaves. Possession was apparently all the evidence that public sentiment Edition: current; Page: [34] demanded, of a master’s property in his slave. Under such a code, multitudes, who had either never been purchased as slaves, or who had once been emancipated, were doubtless seized and reduced to servitude by individual rapacity, without any more public cognizance of the act, than if the person so seized had been a stray sheep.

Virginia. Incredible as it may seem, slavery had existed in Virginia fifty years before even a statute was passed for the purpose of declaring who might be slaves; and then the persons were so described as to make the designation of no legal effect, at least as against Africans generally. And it was not until seventy-eight years more, (an hundred and twenty-eight years in all,) that any act was passed that would cover the case of the Africans generally, and make them slaves. Slavery was introduced in 1620, but no act was passed even purporting to declare who might be slaves, until 1670. In that year a statute was passed in these words: “That all servants, not being Christians, imported into this country by shipping, shall be slaves for their lives.”*

This word “servants” of course legally describes individuals known as such to the laws, and distinguished as such from other persons generally. But no class of Africans “imported,” were known as “servants,” as distinguished from Africans generally, or in any manner to bring them within the legal description of “servants,” as here used. In 1682 and in 1705 acts were again passed declaring “that all servants,” &c., imported, should be slaves. And it was not until 1748, after slavery had existed an hundred and twenty-eight years, that this description was changed for the following:

“That all persons, who have been or shall be imported into this colony,” &c., &c., shall be slaves.†

In 1776, the only statute in Virginia, under which the slaveholders could make any claim at all to their slaves, was passed as late as 1753, (one hundred and thirty-three years after slavery had been introduced;) all prior acts having been then repealed, without saving the rights acquired under them.‡

Even if the colonial charters had contained no express prohibition upon slave laws, it would nevertheless be absurd to pretend that the colonial legislature had power, in 1753, to look back an hundred and thirty-three years, and arbitrarily reduce to slavery all colored persons that had been imported into, or born in the colony within that time. If they could not do this, then it follows that all the colored persons in Virginia, up to 1753, (only twenty-three years before the revolution,) and all their descendants to the present time, were and are free; and they cannot now be distinguished from the descendants of those subsequently imported. Under the presumption—furnished by the constitution of the United States—that all are free, few or no exceptions could now be proved.

In North Carolina no general law at all was passed, prior to the revolution, declaring who might be slaves—(See Iredell’s statutes, revised by Martin.)

In South Carolina, the only statutes, prior to the revolution, that attempted to designate the slaves, was passed in 1740—after slavery had for a long time existed. And even this statute, in reality, defined nothing; for the whole purport of it was, to declare that all negroes, Indians, mulattoes and mestizoes, except those who were then free, should be slaves. Inasmuch as no prior statute had ever been passed, declaring who should be slaves, all were legally free; and therefore all came within the exception in favor of free persons.*

The same law, in nearly the same words, was passed in Georgia, in 1770.

These were the only general statutes, under which slaves were held in those four States, (Virginia, North Carolina, South Carolina and Georgia,) at the time of the revolution. They would all, for the reasons given, have amounted to nothing, as a foundation for the slavery now existing in those states, even if they had not been specially prohibited by their charters.

CHAPTER V.: THE DECLARATION OF INDEPENDENCE.

Admitting, for the sake of the argument, that prior to the revolution, slavery had a constitutional existence, (so far as it is possible that crime can have such an existence,) was it not abolished by the declaration of independence?

The declaration was certainly the constitutional law of this country for certain purposes. For example, it absolved the people from their allegiance to the English crown. It would have been so declared by the judicial tribunals of this country, if an American, during the revolutionary war, or since, had been tried for treason to the crown. If, then, the declaration were the constitutional law of the country for that purpose, was it not also constitutional law for the purpose of recognizing and establishing, as law, the natural and inalienable right of individuals to life, liberty, and the pursuit of happiness? The lawfulness of the act of absolving Edition: current; Page: [37] themselves from their allegiance to the crown, was avowed by the people of the country—and that too in the same instrument that declared the absolution—to rest entirely upon, and to be only a consequence of the natural right of all men to life, liberty, and the pursuit of happiness. If, then, the act of absolution was lawful, does it not necessarily follow that the principles that legalized the act, were also law? And if the country ratified the act of absolution, did they not also necessarily ratify and acknowledge the principles which they declared legalized the act?

It is sufficient for our purpose, if it be admitted that this principle was the law of the country at that particular time, (1776)—even though it had continued to be the law for only a year, or even a day. For if it were the law of the country even for a day, it freed every slave in the country—(if there were, as we say there were not, any legal slaves then in the country.) And the burden would then be upon the slaveholder to show that slavery had since been constitutionally established. And to show this, he must show an express constitutional designation of the particular individuals, who have since been made slaves. Without such particular designation of the individuals to be made slaves, (and not even the present constitutions of the slave States make any such designation,) all constitutional provisions, purporting to authorize slavery, are indefinite, and uncertain in their application, and for that reason void.

But again. The people of this country—in the very instrument by which they first announced their independent political existence, and first asserted their right to establish governments of their own—declared that the natural and inalienable right of all men to life, liberty, and the pursuit of happiness, was a “self-evident truth.”

Now, all “self-evident truths,” except such as may be explicitly, or by necessary implication, denied, (and no government has a right to deny any of them,) enter into, are taken for granted by, und constitute an essential part of all constitutions, compacts, and systems of government whatsoever. Otherwise it would be impossible for any systematic government to be established; for it must obviously be impossible to make an actual enumeration of all the “self-evident truths,” that are to be taken into account in the administration of such a government. This is more especially true of governments founded, like ours, upon contract. It is clearly impossible, in a contract of government, to enumerate all Edition: current; Page: [38] the “self-evident truths” which must be acted upon in the administration of law. And therefore they are all taken for granted unless particular ones be plainly denied.

This principle, that all “self-evident truths,” though not enumerated, make a part of all laws and contracts, unless clearly denied, is not only indispensable to the very existence of civil society, but it is even indispensable to the administration of justice in every individual case or suit, that may arise, out of contract or otherwise, between individuals. It would be impossible for individuals to make contracts at all, if it were necessary for them to enumerate all the “self-evident truths,” that might have a bearing upon their construction before a judicial tribunal. All such truths are therefore taken for granted. And it is the same in all compacts of government, unless particular truths are plainly denied. And governments, no more than individuals, have a right to deny them in any case. To deny, in any case, that “self-evident truths” are a part of the law, is equivalent to asserting that “self-evident falsehood” is law.

If, then, it be a “self-evident truth,” that all men have a natural and inalienable right to life, liberty, and the pursuit of happiness, that truth constitutes a part of all our laws and all our constitutions, unless it have been unequivocally and authoritatively denied.

It will hereafter be shown that this “self-evident truth” has never been denied by the people of this country, in their fundamental constitution, or in any other explicit or authoritative manner. On the contrary, it has been reiterated, by them, annually, daily and hourly, for the last sixty-nine years, in almost every possible way, and in the most solemn possible manner. On the 4th of July, ’76, they collectively asserted it, as their justification and authority for an act the most momentous and responsible of any in the history of the country. And this assertion has never been retracted by us as a people. We have virtually reasserted the same truth in nearly every state constitution since adopted. We have virtually reasserted it in the national constitution. It is a truth that lives on the tongues and in the hearts of all. It is true we have, in our practice, been so unjust as to withhold the benefits of this truth from a certain class of our fellow-men. But even in this respect, this truth has but shared the common fate of other truths. They are generally allowed but a partial application. Still, this truth itself, as a truth, has never been denied by us, as a people, in any authentic form, or otherwise than impliedly Edition: current; Page: [39] by our practice in particular cases. If it have, say when and where. If it have not, it is still law; and courts are bound to administer it, as law, impartially to all.

Our courts would want no other authority than this truth, thus acknowledged, for setting at liberty any individual, other than one having negro blood, whom our governments, state or national, should assume to authorize another individual to enslave. Why then, do they not apply the same law in behalf of the African? Certainly not because it is not as much the law of his case, as of others. But it is simply because they will not. It is because the courts are parties to an understanding, prevailing among the white race, but expressed in no authentic constitutional form, that the negro may be deprived of his rights at the pleasure of avarice and power. And they carry out this unexpressed understanding in defiance of, and suffer it to prevail over, all our constitutional principles of government—all our authentic, avowed, open and fundamental law.

CHAPTER VI.: THE STATE CONSTITUTIONS OF 1789.

Of all the state constitutions, that were in force at the adoption of the constitution of the United States, in 1789, not one of them established, or recognized slavery.

All those parts of the state constitutions, (i. e. of the old thirteen states,) that recognize and attempt to sanction slavery, have been inserted, by amendments, since the adoption of the constitution of the United States.

All the states, except Rhode Island and Connecticut, formed constitutions prior to 1789. Those two states went on, beyond this period, under their old charters.*

The eleven constitutions formed, were all democratic in their general character. The most of them eminently so. They generally recognized, in some form or other, the natural rights of men, as one of the fundamental principles of the government. Several of them asserted these rights in the most emphatic and authoritative manner. Most or all of them had also specific provisions incompatible with slavery. Not one of them had any specific recognition of the existence of slavery. Not one of them granted any specific authority for its continuance.

The only provisions or words in any of them, that could be claimed by anybody as recognitions of slavery, are the following, viz.:

1. The use of the words “our negroes” in the preamble to the constitution of Virginia.

2. The mention of “slaves” in the preamble to the constitution of Pennsylvania.

3. The provisions, in some of the constitutions, for continuing in force the laws that had previously been “in force” in the colonies, except when altered by, or incompatible with the new constitution.

4. The use, in several of the constitutions, of the words “free” and “freemen.”

As each of these terms and clauses may be claimed by some persons as recognitions of slavery, they are worthy of particular notice.

1. The preamble to the frame of government of the constitution of Virginia speaks of negroes in this connexion, to wit: It charges George the Third, among other things, with “prompting our negroes to rise in arms among us, those very negroes, whom, by an inhuman use of his negative, he hath refused us permission to exclude by law.”

Here is no assertion that these “negroes” were slaves; but only that they were a class of people whom the Virginians did not wish to have in the state, in any capacity—whom they wished “to exclude by law.” The language, considered as legal language, no more implies that they were slaves, than the charge of having prompted “our women, children, farmers, mechanics, or our people with red hair, or our people with blue eyes, or our Dutchmen, or our Irishmen to rise in arms among us,” would have implied that those portions of the people of Virginia were slaves. And especially when it is considered that slavery had had no prior Edition: current; Page: [41] legal existence, this reference to “negroes” authorizes no legal inference whatever in regard to slavery.

The rest of the Virginia constitution is eminently democratic. The bill of rights declares “that all men are by nature equally free and independent, and have certain inherent rights,” * * “namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

2. The preamble to the Pennsylvania constitution used the word “slaves” in this connexion. It recited that the king of Great Britain had employed against the inhabitants of that commonwealth, “foreign mercenaries, savages and slaves.”

This is no acknowledgment that they themselves had any slaves of their own; much less that they were going to continue their slavery; for the constitution contained provisions plainly incompatible with that. Such, for instance, is the following, which constitutes the first article of the “Declaration of Rights of the Inhabitants,” (i. e. of all the inhabitants) “of the state of Pennsylvania.”

“1. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, among which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”

The 46th section of the frame of government is in these words.

“The Declaration of Rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever.”

Slavery was clearly impossible under these two constitutional provisions, to say nothing of others.

3. Several of the constitutions provide that all the laws of the colonies, previously “in force” should continue in force until repealed, unless repugnant to some of the principles of the constitutions themselves.

Maryland, New York, New Jersey, South Carolina, and perhaps one or two others had provisions of this character. North Carolina had none, Georgia none, Virginia none. The slave laws of these three latter states, then, necessarily fell to the ground on this change of government.

Maryland, New York, New Jersey and South Carolina had acts upon their statute books, assuming the existence of slavery, and Edition: current; Page: [42] pretending to legislate in regard to it; and it may perhaps be argued that those laws were continued in force under the provision referred to. But those acts do not come within the above description of “laws in force”—and for this reason, viz., the acts were originally unconstitutional and void, as being against the charters, under which they were passed; and therefore never had been legally “in force,” however they might have been actually carried into execution as a matter of might, or of pretended law, by the white race.

This objection applies to the slave acts of all the colonies None of them could be continued under this provision.—None of them, legally speaking, were “laws in force.”

But in particular states there were still other reasons against the colonial slave acts being valid under the new constitutions. For instance: South Carolina had no statute (as has before been mentioned) that designated her slaves with such particularity as to distinguish them from free persons; and for that reason none of her slave statutes were legally “in force.”

New Jersey also was in the same situation. She had slave statutes; but none designating the slaves so as to distinguish them from the rest of her population. She had also one or more specific provisions in her constitution incompatible with slavery, to wit: “That the common law of England * * * * * shall remain in force, until altered by a future law of the legislature; such parts only as are repugnant to the rights and privileges contained in this charter.” (Sec. 22.)

Maryland had also, in her new constitution, a specific provision incompatible with the acts on her colonial statute book in regard to slavery, to wit:

“Sec. 3. That the inhabitants”—mark the word, for it includes all the inhabitants—“that the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law,” &c.

This guaranty, of “the common law of England” to all “the inhabitants of Maryland,” without discrimination, is incompatible with any slave acts that existed on the statute book; and the latter would therefore have become void under the constitution, even if they had not been previously void under the colonial charter.

4. Several of these state constitutions have used the words “free” and “freemen.”

For instance: That of South Carolina provided, (Sec. 13.) Edition: current; Page: [43] that the electors of that state should be “free white men.” That of Georgia (Art. 11,) and that of North Carolina (Art. 40,) use the term “free citizen.” That of Pennsylvania (Sec. 42,) has the term “free denizen.”

These four instances are the only ones I have found in all the eleven constitutions, where any class of persons are designated by the term “free.” And it will be seen hereafter, from the connexion and manner in which the word is used, in these four cases, that it implies no recognition of slavery.

Several of the constitutions, to wit, those of Georgia, South Carolina, North Carolina, Maryland, Delaware, Pennsylvania, New York—but not Virginia, New Jersey, Massachusetts or New Hampshire—repeatedly use the word “freeman” or “freemen,” when describing the electors, or other members of the state.

The only questions that can arise from the use of these words “free” and “freeman,” are these, viz.: Are they used as the correlatives, or opposites of slaves? Or are they used in that political sense, in which they are used in the common law of England, and in which they had been used in the colonial charters, viz., to describe those persons possessed of the privilege of citizenship, or some corporate franchise, as distinguished from aliens, and those not enjoying franchises, although free from personal slavery?

If it be answered, that they are used in the sense first mentioned, to wit, as the correlatives or opposites of slavery—then it would be argued that they involved a recognition, at least, of the existence of slavery.

But this argument—whatever it might be worth to support an implied admission of the actual existence of slavery—would be entirely insufficient to support an implied admission either of its legal, or its continued existence. Slavery is so entirely contrary to natural right; so entirely destitute of authority from natural law; so palpably inconsistent with all the legitimate objects of government, that nothing but express and explicit provision can be recognized, in law, as giving it any sanction. No hints, insinuations, or unnecessary implications can give any ground for so glaring a departure from, and violation of all the other, the general and the legitimate principles of the government. If, then, it were admitted that the words “free” and “freemen” were used as the correlatives of slaves, still, of themselves, the words would give no direct or sufficient authority for laws establishing or continuing slavery. To call one man free, gives no legal authority for making Edition: current; Page: [44] another man a slave. And if, as in the case of these constitutions, no express authority for slavery were given, slavery would be as much unconstitutional as though these words had not been used. The use of these words in that sense, in a constitution, under which all persons are presumed to be free, would involve no absurdity, although it might be gratuitous and unnecessary.

It is a rule of law, in the construction of all statutes, contracts and legal instruments whatsoever—that is, those which courts design, not to invalidate, but to enforce—that where words are susceptible of two meanings, one consistent, and the other inconsistent, with liberty, justice and right, that sense is always to be adopted, which is consistent with right, unless there be something in other parts of the instrument sufficient to prove that the other is the true meaning. In the case of no one of all these early state constitutions, is there anything in the other parts of them, to show that these words “free” and “freemen” are used as the correlatives of slavery. The rule of law, therefore, is imperative, that they must be regarded in the sense consistent with liberty and right.

If this rule, that requires courts to give an innocent construction to all words that are susceptible of it, were not imperative, courts might, at their own pleasure, pervert the honest meaning of the most honest statutes and contracts, into something dishonest, for there are almost always words used in the most honest legislation, and in the most honest contracts, that, by implication or otherwise, are capable of conveying more than one meaning, and even a dishonest meaning. If courts could lawfully depart from the rule, that requires them to attribute an honest meaning to all language that is susceptible of such a meaning, it would be nearly impossible to frame either a statute or a contract, which the judiciary might not lawfully pervert to some purpose of injustice. There would obviously be no security for the honest administration of any honest law or contract whatsoever.

This rule applies as well to constitutions as to contracts and statutes; for constitutions are but contracts between the people, whereby they grant authority to, and establish law for the government.

What other meaning, then, than as correlatives of slavery, are the words “free” and “freemen” susceptible of, as they are used in the early state constitutions?

Among the definitions given by Noah Webster are these:

“Freeman. One who enjoys, or is entitled to a franchise or peculiar privilege; as the freemen of a city or state.”

“Free. invested with franchises; enjoying certain immunities; with of—as a man free of the city of London.”

“Possessing without vassalage, or slavish conditions; as a man free of his farm.”

In England, and in the English law throughout, as it existed before and since the emigration of our ancestors to this country, the words “free” and “freemen” were political terms in the most common use; and employed to designate persons enjoying some franchise or privilege, from the most important one of general citizenship in the nation, to the most insignificant one in any incorporated city, town or company. For instance: A man was said to be a “free British subject”—meaning thereby that he was a naturalized or native born citizen of the British government, as distinguished from an alien, or person neither naturalized nor native born.

Again. A man was said to be “free of a particular trade in the city of London”—meaning thereby, that by the bye-laws of the city of London, he was permitted to follow that trade—a privilege which others could not have without having served an apprenticeship in the city, or having purchased the privilege of the city government.

The terms “free” and “freemen” were used with reference to a great variety of privileges, which, in England, were granted to one man, and not to another. Thus members of incorporated companies were called “freemen of the company,” or “free members of the company;” and were said to be “free of the said company.” The citizens of an incorporated city were called “the freemen of the city,” as “freemen of the city of London.”

In Jacobs’ Law Dictionary the following definitions, among others, are given of the word “freeman.”

“Freeman—liber homo.” * * “In the distinction of a freeman from a vassal under the feudal policy, liber homo was commonly opposed to vassus, or vassalus; the former denoting an allodial proprietor; the latter one who held of a superior.”

“The title of a freeman is also given to any one admitted to the freedom of a corporate town, or of any other corporate body, consisting, among other members, of those called freemen.”

“There are three ways to be a freeman of London; by servitude of an apprenticeship; by birthright, as being the son of a Edition: current; Page: [46] freeman; and by redemption, i. e. by purchase, under an order of the court of aldermen.”

“The customs of the city of London shall be tried by the certificate of the Mayor and Aldermen, * * * as the custom of distributing the effects of freemen deceased: of enrolling apprentices, or that he who is free of one trade may use another.”

“Elections of aldermen and common-councilmen are to be by freemen householders.”

“An agreement on marriage, that the husband shall take up the freedom of London, binds the distribution of the effects.”

The foregoing and other illustrations of the use of the words “free” and “freemen,” may be found in Jacob’s Law Dictionary, under the head of Freeman, London, &c.

And this use of these words has been common in the English laws for centuries. The term “freeman” is used in Magna Charta, (1215). The English statutes abound with the terms, in reference to almost every franchise or peculiar privilege, from the highest to the lowest, known to the English laws. It would be perfectly proper, and in consonance with the legal meaning and common understanding of the term, to say of Victoria, that “she is free of the throne of England,” and of a cobbler, that he “is free of his trade in the city of London.”

But the more common and important signification of the words is to designate the citizens, native or naturalized, and those specially entitled, as a matter of political and acknowledged right, to participate in, or be protected by the government, as distinguished from aliens, or persons attainted, or deprived of their political privileges as members of the state. Thus they use the term “free British subject”—“freeman of the realm,” &c. In short, the terms, when used in political papers, have a meaning very nearly, if not entirely synonymous, with that which we, in this country, now give to the word citizen.

But throughout the English law, and among all the variety of ways, in which the words “free” and “freemen” are used, as legal terms, they are never used as the correlatives, or opposites of slaves or slavery—and for the reason that they have in England no such persons or institutions, known to their laws, as slaves or slavery. The use of the words “free” and “freemen,” therefore, do not in England at all imply the existence of slaves or slavery.

This use of the words “free” and “freemen,” which is common to the English law, was introduced into this country at its first settlement, Edition: current; Page: [47] in all, or very nearly all the colonial charters, patents, &c., and continued in use, in this sense, until the time of the revolution; and, of course, until the adoption of the first state constitutions.*

The persons and companies, to whom the colonial charters were granted, and those who were afterwards to be admitted as their associates, were described as “freemen of said colony,” “freemen of said province,” “freemen of said company,” “freemen of the said company and body politick,” &c. (See charter of Rhode Island.)

Many, if not all the charters had a provision similar in substance to the following in the charter to Rhode Island, viz.:

The following enactment of William Penn, as proprietary and Governor of the Province of Pennsylvania and its territories, illustrates one of the common uses of the word “freeman,” as known to the English law, and as used in this country prior to the revolution—that is, as distinguishing a native born citizen, and one capable of holding real estate, &c., from a foreigner, not naturalized, and on that account subject to certain disabilities, such as being incompetent to hold real estate.

Up to the time of our revolution, the only meaning which the words “free” and “freemen” had, in the English law, in the charters granted to the colonies, and in the important documents of a political character, when used to designate one person as distinguished from another, was to designate a person enjoying some franchise or privilege, as distinguished from aliens or persons not enjoying a similar franchise. They were never used to designate a free person as distinguished from a slave—for the very sufficient reason that all these fundamental laws presumed that there were no slaves.

Was such the meaning of the words “free” and “freemen,” as used in the constitutions adopted prior to 1789, in the States of Georgia, North and South Carolina, Maryland, Delaware and New York?

The legal rule of interpretation before mentioned, viz., that an innocent meaning must be given to all words that are susceptible Edition: current; Page: [49] of it—would compel us to give the words this meaning, instead of a meaning merely correlative with slavery, even if we had no other ground than the rule alone, for so doing. But we have other grounds. For instance:—Several of these constitutions have themselves explicitly given to the words this meaning. While not one of them has given them a meaning correlative with slaves, inasmuch as none of them purport either to establish, authorize, or even to know of the existence of slavery.

The constitution of Georgia (adopted in 1777) evidently uses the word “free” in this sense, in the following article:

The constitution of North Carolina, (adopted in 1776,) used the word in a similar sense, as follows:

This constitution also repeatedly uses the word “freeman;” meaning thereby “a free citizen,” as thus defined.

The constitution of Pennsylvania, (adopted in 1776,) uses the word in the same sense:

The constitution of New York, (adopted in 1777,) uses the word in the same manner:

The constitution of South Carolina, (formed in 1778,) uses the word “free” in a sense which may, at first thought, be supposed to be different from that in which it is used in the preceding cases:

It may be supposed that here the word “free” is used as the correlative of slavery; that it presumes the “whites” to be “free;” and that it therefore implies that other persons than “white” may be slaves. Not so. No other parts of the constitution authorize such an inference; and the implication from the words themselves clearly is, that some “white” persons might not be “free.” The distinction implied is between those “white” persons that were “free,” and those that were not “free.” If this were not the distinction intended, and if all “white” persons were “free,” it would have been sufficient to have designated the electors simply as “white” persons, instead of designating them as both “free” and “white.” If, therefore, it were admitted that the word “free,” in this instance, were used as the correlative of slaves, the implication would be that some “white” persons were, or might be slaves. There is, therefore, no alternative but to give the word “free,” in this instance, the same meaning that it has in the constitutions of Georgia, North Carolina and Pennsylvania.

In 1704 South Carolina passed an act entitled, “An act for making aliens free of this part of the Province.” This statute Edition: current; Page: [51] remained in force until 1784, when it was repealed by an act entitled “An act to confer the right of citizenship on aliens.”*

One more example of this use of the word “freeman.” The constitution of Connecticut, adopted as late as 1818, has this provision:

Surely no other proof can be necessary of the meaning of the words “free” and “freeman,” as used in the constitutions existing in 1789; or that the use of those words furnish no implication in support of either the existence, or the constitutionality of slavery, prior to the adoption of the constitution of the United States in that year.

I have found, in none of the State constitutions before mentioned, (existing in 1789,) any other evidence or intimation of the existence of slavery, than that already commented upon and refuted. And if there be no other, then it is clear that slavery had no legal existence under them. And there was consequently no constitutional slavery in the country up to the adoption of the constitution of the United States.

CHAPTER VII.: THE ARTICLES OF CONFEDERATION.

The Articles of Confederation, (formed in 1778,) contained no recognition of slavery. The only words in them, that could be claimed by anybody as recognizing slavery, are the following, in Art. 4, Sec. 1.

There are several reasons why this provision contains no legal recognition of slavery.

1. The true meaning of the word “free,” as used in the English law, in the colonial charters, and in the State constitutions up to this time, when applied to persons, was to describe citizens, or persons possessed of franchises, as distinguished from aliens or persons not possessed of the same franchises. Usage, then, would give this meaning to the word “free” in this section.

2. The rules of law require that an innocent meaning should be given to all words that will bear an innocent meaning.

3. The Confederation was a league between States in their corporate capacity; and not, like the constitution, a government established by the people in their individual character. The Confederation, then, being a league between states or corporations, as such, of course recognized nothing in the character of the State governments except what their corporate charters or State constitutions authorized. And as none of the State constitutions of the day recognized slavery, the confederation of the State governments could not of course recognize it. Certainly none of its language can, consistently with legal rules, have such a meaning given to it, when it is susceptible of another that perfectly accords with the sense in which it is used in the constitutions of the States, that were parties to the league.

4. No other meaning can be given to the word “free” in this case, without making the sentence an absurd, or, at least, a foolish and inconsistent one. For instance,—The word “free” is joined to the word “citizen.” What reason could there be in applying the term “free” to the word “citizen,” if the word “free” were used as the correlative of slavery? Such an use of the word would imply that some of the “citizens” were, or might be slaves—which would be an absurdity. But used in the other sense, it implies only that some citizens had franchises not enjoyed by others; such, perhaps, as the right of suffrage, and the right of being elected to office; which franchises were only enjoyed by a part of the “citizens.” All who were born of English parents, for instance, were “citizens,” and entitled to the protection of the government, and freedom of trade and occupation, &c., &c., and in these respects were distinguished from aliens. Yet a property qualification was necessary, in some, if not all the States, to entitle Edition: current; Page: [53] even such to the franchises of suffrage, and of eligibility to office.

The terms “free inhabitants” and “people” were probably used as synonymous either with “free citizens,” or with “citizens” not “free”—that is, not possessing the franchises of suffrage and eligibility to office.

Mr. Madison, in the 42d No. of the Federalist, in commenting upon the power given to the general government by the new constitution, of naturalizing aliens, refers to this clause in the Articles of Confederation; and takes it for granted that the word “free” was used in that political sense, in which I have supposed it to be used—that is, as distinguishing “citizens” and the “inhabitants” or “people” proper, from aliens and persons not allowed the franchises enjoyed by the “inhabitants” and “people” of the States. Even the privilege of residence he assumes to be a franchise entitling one to the denomination of “free.”

Throughout this whole quotation Mr. Madison obviously takes it for granted that the word “free” is used in the articles of confederation, as the correlative of aliens. And in this respect he no doubt correctly represents the meaning then given to the word by the people of the United States. And in the closing sentence of the quotation, he virtually asserts that such is the meaning of the word “free” in “the new constitution.”

CHAPTER VIII.: THE CONSTITUTION OF THE UNITED STATES.

We come now to the period commencing with the adoption of the constitution of the United States.

We have already seen that slavery had not been authorized or established by any of the fundamental constitutions or charters that had existed previous to this time; that it had always been a mere abuse sustained by the common consent of the strongest party, in defiance of the avowed constitutional principles of their Edition: current; Page: [55] governments. And the question now is, whether it was constitutionally established, authorized or sanctioned by the constitution of the United States?

It is perfectly clear, in the first place, that the constitution of the United States did not, of itself, create or establish slavery as a new institution; or even give any authority to the state governments to establish it as a new institution.—The greatest sticklers for slavery do not claim this. The most they claim is, that it recognized it as an institution already legally existing, under the authority of the State governments; and that it virtually guarantied to the States the right of continuing it in existence during their pleasure. And this is really the only question arising out of the constitution of the United States on this subject, viz., whether it did thus recognize and sanction slavery as an existing institution?

This question is, in reality, answered in the negative by what has already been shown; for if slavery had no constitutional existence, under the State constitutions, prior to the adoption of the constitution of the United States, then it is absolutely certain that the constitution of the United States did not recognize it as a constitutional institution; for it cannot, of course, be pretended that the United States constitution recognized, as constitutional, any State institution that did not constitutionally exist.

Even if the constitution of the United States had intended to recognize slavery, as a constitutional State institution, such intended recognition would have failed of effect, and been legally void, because slavery then had no constitutional existence to be recognized.

Suppose, for an illustration of this principle, that the constitution of the United States had, by implication, plainly taken it for granted that the State legislatures had power—derived from the State constitutions—to order arbitrarily that infant children, or that men without the charge of crime, should be maimed—deprived, for instance, of a hand, a foot, or an eye. This intended recognition, on the part of the constitution of the United States, of the legality of such a practice, would obviously have failed of all legal effect—would have been mere surplusage—if it should appear, from an examination of the State constitutions themselves, that they had really conferred no such power upon the legislatures. And this principle applies with the same force to laws that would arbitrarily make men or children slaves, as to laws that should arbitrarily order them to be maimed or murdered.

We might here safely rest the whole question—for no one, as has already been said, pretends that the constitution of the United States, by its own authority, created or authorized slavery as a new institution; but only that it intended to recognize it as one already established by authority of the State constitutions. This intended recognition—if there were any such—being founded on an error as to what the State constitutions really did authorize, necessarily falls to the ground, a defunct intention.

We make a stand, then, at this point, and insist that the main question—the only material question—is already decided against slavery; and that it is of no consequence what recognition or sanction the constitution of the United States may have intended to extend to it.

The constitution of the United States, at its adoption, certainly took effect upon, and made citizens of all “the people of the United States,” who were not slaves under the State constitutions. No one can deny a proposition so self-evident as that. If, then, the State constitutions, then existing, authorized no slavery at all, the constitution of the United States took effect upon, and made citizens of all “the people of the United States,” without discrimination. And if all “the people of the United States” were made citizens of the United States, by the United States constitution, at its adoption, it was then forever too late for the State governments to reduce any of them to slavery. They were thenceforth citizens of a higher government, under a constitution that was “the supreme law of the land,” “anything in the constitution or laws of the States to the contrary notwithstanding.” If the State governments could enslave citizens of the United States, the State constitutions, and not the constitution of the United States, would be the “supreme law of the land”—for no higher act of supremacy could be exercised by one government over another, than that of taking the citizens of the latter out of the protection of their government, and reducing them to slavery.

CHAPTER IX.: THE INTENTIONS OF THE CONVENTION.

The intentions of the framers of the constitution, (if we could have, as we cannot, any legal knowledge of them, except from the words of the constitution,) have nothing to do with fixing the legal meaning of the constitution. That convention were not delegated to adopt or establish a constitution; but only to consult, devise and recommend. The instrument, when it came from their hands, was a mere proposal, having no legal force or authority. It finally derived all its validity and obligation, as a frame of government, from its adoption by the people at large.* Of course the intentions of the people at large are the only ones, that are of any importance to be regarded in determining the legal meaning of the instrument. And their intentions are to be gathered entirely from the words, which they adopted to express them. And their intentions must be presumed to be just what, and only what the words of the instrument legally express. In adopting the constitution, Edition: current; Page: [115] the people acted as legislators, in the highest sense in which that word can be applied to human lawgivers. They were establishing a law that was to govern both themselves and their government. And their intentions, like those of other legislators, are to be gathered from the words of their enactments. Such is the dictate of both law and common sense.* The instrument had Edition: current; Page: [116] been reported by their committee, the convention. But the people did not ask this committee what was the legal meaning of the instrument reported. They adopted it, judging for themselves of its legal meaning, as any other legislative body would have done. The people at large had not even an opportunity of consultation with the members of the convention, to ascertain their opinions. And even if they had consulted them, they would not have been bound at all by their opinions. But being unable to consult them, they were compelled to adopt or reject the instrument, on their own judgment of its meaning, without any reference to the opinions of the convention. The instrument, therefore, is now to be regarded as expressing the intentions of the people at large; and not the intentions of the convention, if the convention had any intentions differing from the meaning which the law gives to the words of the instrument.

But why do the partisans of slavery resort to the debates of the convention for evidence that the constitution sanctions slavery? Plainly for no other reason than because the words of the instrument do not sanction it. But can the intentions of that convention, attested only by a mere skeleton of its debates, and not by any impress upon the instrument itself, add anything to the words, or to the legal meaning of the words of the constitution? Plainly not. Their intentions are of no more consequence, in a legal point of view, than the intentions of any other equal number of the then voters of the country. Besides, as members of the convention, they were not even parties to the instrument; and no evidence of their intentions, at that time, is applicable to the case. They became parties to it only by joining with the rest of the people in its subsequent adoption; and they themselves, equally with the rest of the people, must then be presumed to have adopted its legal meaning, and that alone—notwithstanding anything they may have previously said. What absurdity then is it to set up the opinions expressed in the convention, and by a few only of its members, in opposition to the opinions expressed by the whole people of the country, in the constitution itself.

But notwithstanding the opinions expressed in the convention by some of the members, we are bound, as a matter of law, to presume that the convention itself, in the aggregate, had no intention of sanctioning slavery—and why? Because, after all their debates, they agreed upon an instrument that did not sanction it. This was confessedly the result in which all their debates terminated. Edition: current; Page: [117] This instrument is also the only authentic evidence of their intentions. It is subsequent in its date to all the other evidence. It comes to us, also, as none of the other evidence does, signed with their own hands. And is this to be set aside, and the constitution itself to be impeached and destroyed, and free government overturned, on the authority of a few meagre snatches of argument, intent or opinion, uttered by a few only of the members; jotted down by one of them, (Mr. Madison,) merely for his own convenience, or from the suggestions of his own mind; and only reported to us fifty years afterwards by a posthumous publication of his papers? If anything could excite the utter contempt of the people of this nation for the miserable subterfuges, to which the advocates of slavery resort, it would seem that their offering such evidence as this in support of their cause, must do it. And yet these, and such as these mere fragments of evidence, all utterly inadmissible and worthless in their kind, for any legal purpose, constitute the warp and the woof, the very sine qua non of the whole argument for slavery.

Did Mr. Madison, when he took his oath of office, as President of the United States, swear to support these scraps of debate, which he had filed away among his private papers?—Or did he swear to support that written instrument, which the people of the country had agreed to, and which was known to them, and to all the world, as the constitution of the United States?*

But even if the unexpressed intentions, which these notes of debate ascribed to certain members, had been participated in by the whole convention, we should have had no right to hold the people of the country at large responsible for them. This convention sat with closed doors, and it was not until near fifty years after the people had adopted the constitution itself, that these private intentions of the framers authentically transpired. And even now all the evidence disclosed implicates, directly and absolutely, but few of the members—not even all from the slaveholding states. The intentions of all the rest, we have a right to presume, concurred with their votes and the words of the instrument; and they had therefore no occasion to express contrary ones in debate.

But suppose that all the members of the convention had participated in these intentions—what then? Any forty or fifty men, like those who framed the constitution, may now secretly concoct another, that is honest in its terms, and yet in secret conclave confess to each other the criminal objects they intended to accomplish by it, if its honest character should enable them to secure for it the adoption of the people.—But if the people should adopt such constitution, would they thereby adopt any of the criminal and secret purposes of its authors? Or if the guilty confessions of these conspirators should be revealed fifty years afterwards, would judicial tribunals look to them as giving the government any authority for violating the legal meaning of the words of such constitution, and for so construing them as to subserve the criminal and shameless purpose of its originators?

The members of the convention, as such, were the mere scriveners of the constitution; and their individual purposes, opinions Edition: current; Page: [119] or expressions, then uttered in secret cabal, though now revealed, can no more be evidence of the intentions of the people who adopted the constitution, than the secret opinions or expressions of the scriveners of any other contract can be offered to prove the intentions of the true parties to such contract. As framers of the constitution, the members of the convention gave to it no validity, meaning, or legal force. They simply drafted it, and offered it, such as it legally might be, to the people for their adoption or rejection. The people, therefore, in adopting it, had no reference whatever to the opinions of the convention. They had no authentic evidence of what those opinions were. They looked simply at the instrument. And they adopted even its legal meaning by a bare majority. If the instrument had contained any tangible sanction of slavery, the people, in some parts of the country certainly, would sooner have had it burned by the hands of the common hangman, than they would have adopted it, and thus sold themselves as pimps to slavery, covered as they were with the scars they had received in fighting the battles of freedom. And the members of the convention knew that such was the feeling of a large portion of the people; and for that reason, if for no other, they dared insert in the instrument no legal sanction of slavery. They chose rather to trust to their craft and influence to corrupt the government, (of which they themselves expected to be important members,) after the constitution should have been adopted, rather than ask the necessary authority directly from the people. And the success they have had in corrupting the government, proves that they judged rightly in presuming that the government would be more flexible than the people.

For other reasons, too, the people should not be charged with designing to sanction any of the secret intentions of the convention. When the States sent delegates to the convention, no avowal was made of any intention to give any national sanction to slavery. The articles of confederation had given none; the then existing State constitutions gave none; and it could not have been reasonably anticipated by the people that any would have been either asked for or granted in the new constitution. If such a purpose had been avowed by those who were at the bottom of the movement, the convention would doubtless never have been held. The avowed objects of the convention were of a totally different character. Commercial, industrial and defensive motives were the prominent ones avowed. When, then, the constitution came from Edition: current; Page: [120] the hands of such a convention, unstained with any legal or tangible sanction of slavery, were the people—who, from the nature of the case, could not assemble to draft one for themselves—bound either to discard it, or hold themselves responsible for all the secret intentions of those who had drafted it? Had they no power to adopt its legal meaning, and that alone? Unquestionably they had the power; and, as a matter of law, as well as fact, it is equally unquestionable that they exercised it. Nothing else than the constitution, as a legal instrument, was offered to them for their adoption. Nothing else was legally before them that they could adopt. Nothing else, therefore, did they adopt.

This alleged design, on the part of the convention, to sanction slavery, is obviously of no consequence whatever, unless it can be transferred to the people who adopted the constitution. Has any such transfer ever been shown? Nothing of the kind. It may have been known among politicians, and may have found its way into some of the State conventions. But there probably is not a tittle of evidence in existence, that it was generally known among the mass of the people. And, in the nature of things, it was nearly impossible that it should have been known by them. The national convention had sat with closed doors. Nothing was known of their discussions, except what was personally reported by the members. Even the discussions in the State conventions could not have been known to the people at large; certainly not until after the constitution had been ratified by those conventions. The ratification of the instrument, by those conventions, followed close on the heels of their discussions.—The population meanwhile was thinly scattered over the country. The public papers were few, and small, and far between. They could not even make such reports of the discussions of public bodies, as newspapers now do. The consequence must have been that the people at large knew nothing of the intentions of the framers of the constitution, but from its words, until after it was adopted. Nevertheless, it is to be constantly borne in mind, that even if the people had been fully cognizant of those intentions, they would not therefore have adopted them, or become at all responsible for them, so long as the intentions themselves were not incorporated in the instrument. Many selfish, ambitious and criminal purposes, not expressed in the constitution, were undoubtedly intended to be accomplished by one and another of the thousands of unprincipled politicians, that would naturally swarm around the birth-place Edition: current; Page: [121] and assist at the nativity of a new and splendid government. But the people are not therefore responsible for those purposes; nor are those purposes, therefore, a part of the constitution; nor is its language to be construed with any view to aid their accomplishment.

But even if the people intended to sanction slavery by adopting the intentions of the convention, it is obvious that they, like the convention, intended to use no language that should legally convey that meaning, or that should necessarily convict them of that intention in the eyes of the world.—They, at least, had enough of virtuous shame to induce them to conceal this intention under the cover of language, whose legal meaning would enable them always to aver,

The intention, therefore, that the judiciary should construe certain language into an authority for slavery, when such is not the legal meaning of the language itself, cannot be ascribed to the people, except upon the supposition that the people presumed their judicial tribunals would have so much less of shame than they themselves, as to volunteer to carry out these their secret wishes, by going beyond the words of the constitution they should be sworn to support, and violating all legal rules of construction, and all the free principles of the instrument. It is true that the judiciary, (whether the people intended it or not,) have proved themselves to be thus much, at least, more shameless than the people, or the convention. Yet that is not what ought to have been expected of judicial tribunals. And whether such were really the intention of the convention, or the people, is, at best a matter of conjecture and history, and not of law, nor of any evidence cognizable by any judicial tribunal.

Why should we search at all for the intentions, either of the convention, or of the people, beyond the words which both the convention and the people have agreed upon to express them? What is the object of written constitutions, and written statutes, and written contracts? Is it not that the meaning of those who make them may be known with the most absolute precision of which language is capable? Is it not to get rid of all the fraud, and uncertainty, and disagreements of oral testimony? Where would be our constitution, if, instead of its being a written instiument, it had been merely agreed upon orally by the members of the convention? And by them only orally reported to the people? And Edition: current; Page: [122] only this oral report of it had been adopted by the people? And all our evidence of what it really was, had rested upon reports of what Mr. A. and B., members of the convention, had been heard to say? Or upon Mr. Madison’s notes of the debates of the convention? Or upon the oral reports made by the several members to their respective constituents, or to the respective State conventions? Or upon flying reports of the opinions which a few individuals, out of the whole body of the people, had formed of it when they adopted it? No two of the members of the convention would probably have agreed in their representations of what the constitution really was. No two of the people would have agreed in their understanding of the constitution when they adopted it. And the consequence would have been that we should really have had no constitution at all. Yet there is as much ground, both in reason and in law, for thus throwing aside the whote of the written instrument, and trusting entirely to these other sources for evidence of what any part of the constitution really is, as there is for throwing aside those particular portions of the written instrument, which bear on slavery, and attempting to supply their place from such evidence as these other sources may chance to furnish. And yet, to throw aside the written instrument, so far as its provisions are prohibitory of slavery, and make a new constitution on that point, out of other testimony, is the only means, confessedly the only means, by which slavery can be made constitutional.

And what is the object of resorting to these flying reports for evidence, on which to change the meaning of the constitution? Is it to change the instrument from a dishonest to an honest one? from an unjust to a just one? No. But directly the reverse—and solely that dishonesty and injustice may be carried into effect. A purpose, for which no evidence of any kind whatever could be admitted in a court of justice.

Again. If the principle be admitted, that the meaning of the constitution can be changed, on proof being made that the scriveners or framers of it had secret and knavish intentions, which do not appear on the face of the instrument, then perfect license is given to the scriveners of constitutions to contrive any secret scheme of villany they may please, and impose it upon the people as a system of government, under cover of a written instrument that is so plainly honest and just in its terms, that the people readily agree to it. Is such a principle to be admitted in a Edition: current; Page: [123] country where the people claim the prerogative of establishing their own government, and deny the right of anybody to impose a government upon them, either by force, or fraud, or against their will?

Finally. The constitution is a contract; a written contract, consisting of a certain number of precise words, to which, and to which only, all the parties to it have, in theory, agreed. Manifestly neither this contract, nor the meaning of its words, can be changed, without the consent of all the parties to it. Nor can it be changed on a representation, to be made by any number of them less than the whole, that they intended anything different from what they have said. To change it, on the representation of a part, without the consent of the rest, would be a breach of contract as to all the rest. And to change its legal meaning, without their consent, would be as much a breach of the contract, as to change its words. If there were a single honest man in the nation, who assented, in good faith, to the honest and legal meaning of the constitution, it would be unjust and unlawful towards him to change the meaning of the instrument so as to sanction slavery, even though every other man in the nation should testify that, in agreeing to the constitution, he intended that slavery should be sanctioned. If there were not a single honest man in the nation, who adopted the constitution in good faith, and with the intent that its legal meaning should be carried into effect, its legal meaning would nevertheless remain the same; for no judicial tribunal could lawfully allow the parties to it to come into court and allege their dishonest intentions, and claim that they be substituted for the legal meaning of the words of the instrument.

CHAPTER X.: THE PRACTICE OF THE GOVERNMENT.

The practice of the government, under the constitution, has not altered the legal meaning of the instrument. It means now what it did before it was ratified, when it was first offered to the people for their adoption or rejection. One of the advantages of a written constitution is, that it enables the people to see what its character is before they adopt it; and another is, that it enables them to see Edition: current; Page: [124] after they have adopted it, whether the government adheres to it, or departs from it. Both these advantages, each of which is indispensable to liberty, would be entirely forfeited, if the legal meaning of a written constitution were one thing when the instrument was offered to the people for their adoption, and could then be made another thing by the government after the people had adopted it.

It is of no consequence, therefore, what meaning the government have placed upon the instrument; but only what meaning they were bound to place upon it from the beginning.

The only question, then, to be decided, is, what was the meaning of the constitution, as a legal instrument, when it was first drawn up, and presented to the people, and before it was adopted by them?

To this question there certainly can be but one answer. There is not room for a doubt or an argument, on that point, in favor of slavery. The instrument itself is palpably a free one throughout, in its language, its principles, and all its provisions. As a legal instrument, there is no trace of slavery in it. It not only does not sanction slavery, but it does not even recognize its existence. More than this, it is palpably and wholly incompatible with slavery. It is also the supreme law of the land, in contempt of any State constitution or law that should attempt to establish slavery.

Such was the character of the constitution when it was offered to the people, and before it was adopted. And if such was its character then, such is its character still. It cannot have been changed by all the errors and perversions, intentional or unintentional, of which the government may have since been guilty.

CHAPTER XI.: THE UNDERSTANDING OF THE PEOPLE.

Although the inquiry may be of no legal importance, it may nevertheless be one pertinent to the subject, whether it be matter of history even—to say nothing of legal proof—that the people of the country did really understand or believe that the constitution sanctioned slavery? Those who make the assertion are Edition: current; Page: [125] bound to prove it. The presumption is against them. Where is their contrary history?

They will say that a part of the people were actually slaveholders, and that it is unreasonable to suppose they would have agreed to the constitution, if they had understood it to be a free one.

The answer to this argument is, that the actual slaveholders were few in number compared with the whole people; comprising probably not more than one eighth or one sixth of the voters, and one fortieth or one thirtieth of the whole population. They were so few as to be manifestly incapable of maintaining any separate political organization; or even of holding their slave property, except under the sufferance, toleration and protection of the non-slaveholders. They were compelled, therefore, to agree to any political organization, which the non-slaveholders should determine on. This was at that time the case even in the strongest of the slaveholding States themselves. In all of them, without exception, the slaveholders were either obliged to live, or from choice did live, under free constitutions. They, of course, held their slave property in defiance of their constitutions. They were enabled to do this through the corrupting influence of their wealth and union. Controlling a large proportion of the wealth of their States, their social and political influence was entirely disproportionate to their numbers. They could act in concert. They could purchase talent by honors, offices and money. Being always united, while the non-slaveholders were divided, they could turn the scale in elections, and fill most of the offices with slaveholders. Many of the non-slaveholders doubtless were poor, dependent and subservient, (as large portions of the non-slaveholders are now in the slaveholding States,) and lent themselves to the support of slavery almost from necessity. By these, and probably by many other influences that we cannot now understand, they were enabled to maintain their hold upon their slave property in defiance of their constitutions. It is even possible that the slaveholders themselves did not choose to have the subject of slavery mentioned in their constitutions; that they were so fully conscious of their power to corrupt and control their governments, that they did not regard any constitutional provision necessary for their security; and that out of mere shame at the criminality of the thing, and its inconsistency with all the princip es the country had been fighting for and proclaiming, they did not wish it to be named.

But whatever may have been the cause of the fact, the fact itself is conspicuous, that from some cause or other, either with the consent of the slaveholders, or in defiance of their power, the constitutions of every one of the thirteen States were at that time free ones.

Now is it not idle and useless to pretend, when even the strongest slaveholding States had free constitutions—when not one of the separate States, acting for itself, would have any but a free constitution—that the whole thirteen, when acting in unison, should concur in establishing a slaveholding one? The idea is preposterous. The single fact that all the State constitutions were at that time free ones, scatters forever the pretence that the majority of the people of all the States either intended to establish, or could have been induced to establish, any other than a free one for the nation. Of course it scatters also the pretence that they believed or understood that they were establishing any but a free one.

There very probably may have been a general belief among the people, that slavery would for a while live on, on sufferance; that the government, until the nation should have become attached to the constitution, and cemented and consolidated by the habit of union, would be too weak, and too easily corrupted by the innumerable and powerful appliances of slaveholders, to wrestle with and strangle slavery. But to suppose that the nation at large did not look upon the constitution as destined to destroy slavery, whenever its principles should be carried into full effect, is obviously to suppose an intellectual impossibility; for the instrument was plain, and the people had common sense; and those two facts cannot stand together consistently with the idea that there was any general, or even any considerable misunderstanding of its meaning.

CHAPTER XII.: THE STATE CONSTITUTIONS OF 1845.

Of all the State constitutions existing at this time, 1845, (excepting that of Florida, which I have not seen,) not one of them contains provisions that are sufficient, (or that would be sufficient Edition: current; Page: [127] if not restrained by the constitution of the United States,) to authorize the slavery that exists in the States. The material deficiency in all of them is, that they neither designate, nor give the legislatures any authority to designate the persons, who may be made slaves. Without such a provision, all their other provisions in regard to slaves are nugatory, simply because their application is legally unknown. They would apply as well to whites as to blacks, and would as much authorize the enslavement of whites as of blacks.

We have before seen that none of the State constitutions, that were in existence in 1789, recognized slavery at all. Since that time, four of the old thirteen States, viz., Maryland, North Carolina, South Carolina and Georgia, have altered their constitutions so as to make them recognize slavery; yet not so as to provide for any legal designation of the persons to be made slaves.

The constitution of South Carolina has a provision that implies that some of the slaves, at least, are “negroes;” but not that all slaves are negroes, nor that all negroes are slaves. The provision, therefore, amounts to nothing for the purposes of a constitutional designation of the persons who may be made slaves.

The constitutions of Tennessee and Louisiana make no direct mention of slaves; and have no provisions in favor of slavery, unless the general one for continuing existing laws in force, be such an one. But both have specific provisions inconsistent with slavery. Both purport to be established by “the people;” both have provisions for the writ of habeas corpus. Indeed, the constitutions of most of the slave States have provisions for this writ, which, as has been before shown, denies the right of property in man. That of Tennessee declares also “that all courts shall be open, and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Tennessee also was formerly a part of North Carolina; was set off from her while the constitution of North Carolina was a free one. Of course there has never been any legal slavery in Tennessee.

The constitutions of the States of Kentucky, Missouri, Arkansas, Mississippi, and Alabama, all have provisions about slaves; yet none of them tell us who may be slaves. Some of them indeed provide for the admission into their State of such persons as are slaves under the laws, (which of course means only the Edition: current; Page: [128] constitutional laws,) of other States. But when we go to those other States, we find that their constitutions have made no designation of the persons who may be made slaves; and therefore we are as far from finding the actual persons of the slaves as we were before.

The principal provision, in the several State constitutions, recognizing slavery, is, in substance, this, that the legislature shall have no power to emancipate slaves without the consent of their owners, or without making compensation. But this provision is of no avail to legalize slavery, for slavery must be constitutionally established, before there can be any legal slaves to be emancipated; and it cannot be established without describing the persons who may be made slaves.

Kentucky was originally a part of Virginia, and derived her slaves from Virginia. As the constitution of Virginia was always a free one, it gave no authority for slavery in that part of the State which is now Kentucky. Of course Kentucky never had any legal slavery.

Slavery was positively prohibited in all the States included in the Louisiana purchase, by the third article of the treaty of cession—which is in these words:—

The cession of Florida to the United States was made on the same terms. The words of the treaty, on this point are as follows:—

To allow any of the “inhabitants,” included in those treaties, to be held as slaves, or denied the rights of citizenship under the United States constitution, is a plain breach of the treaties.

The constitutions of some of the slave States have provisions like this, viz., that all laws previously in force, shall remain in force until repealed, unless repugnant to this constitution. But I think there is no instance, in which the slave acts, then on their statute books, could be perpetuated by this provision—and for two reasons; 1st. These slave acts were previously unconstitutional, and therefore were not, legally speaking, “laws in force.”* 2d. Every constitution, I think, that has this provision, has one or more other provisions that are “repugnant” to the slave acts.

CHAPTER XIII.: THE CHILDREN OF SLAVES ARE BORN FREE.

The idea that the children of slaves are necessarily born slaves, or that they necessarily follow that natural law of property, which gives the natural increase of property to the owner of the original stock, is an erroneous one.

It is a principle of natural law in regard to property, that a calf belongs to the owner of the cow that bore it; fruit to the owner of the tree or vine on which it grew; and so on. But the principle of natural law, which makes a calf belong to the owner of the cow, does not make the child of a slave belong to the owner of the slave—and why? Simply because both cow and calf are naturally subjects of property; while neither men nor children are naturally subjects of property. The law of nature gives no aid to anything inconsistent with itself. It therefore gives no aid to the transmission of property in man—while it does give aid to the transmission of property in other animals and in things.

Brute animals and things being naturally subjects of property, there are obvious reasons why the natural increase should belong to the owner of the original stock. But men, not being naturally subjects of property, the law of nature will not transmit any right of property acquired in violation of her own authority. The law Edition: current; Page: [130] of nature denies all rights not derived from herself. Of course she cannot perpetuate or transmit such rights—if rights they can be called.

One important reason why a calf belongs to the owner of the cow that bore it, is, that there is no principle of natural law that can be opposed to that ownership. For the calf is naturally a subject of property, and if it were not given to the owner of the cow, it would be lawful for any other person to assume the ownership. No wrong would be done to the animal by so doing. But as man is not naturally a subject of property, and as each separate individual is, on principles of natural law, entitled to the control of his own person, it is as much a wrong, and as much a violation of natural law, to make a slave of the child of a slave, as to make a slave of any other person. The natural rights of the child to the control of his own person, rise up, from the moment of his birth, in opposition to the transmission to him of any ownership, which, in violation of natural law, has been asserted to the parent.

Natural law may be overborne by arbitrary institutions; but she will never aid or perpetuate them. For her to do so, would be to resist, and even deny her own authority. It would present the case of a principle warring against and overcoming itself. Instead of this, she asserts her own authority on the first opportunity. The moment the arbitrary law expires by its own limitation, natural law resumes her reign. If, therefore, the government declare A to be a slave, natural law may be practically overborne by this arbitrary authority; but she will not herself perpetuate it beyond the person of A—for that would be acting in contradiction to herself.—She will therefore suffer this arbitrary authority to expend itself on the person of A, according to the letter of the arbitrary law: but she will assert her own authority in favor of the child of A, to whom the letter of the law enslaving A, does not apply.

Slavery is a wrong to each individual enslaved; and not merely to the first of a series. Natural law, therefore, as much forbids the enslaving of the child, as if the wrong of enslaving the parent had never been perpetrated.

Slavery, then, is an arbitrary institution throughout. It depends from first to last, upon the letter of the arbitrary law. Natural law gives it no aid, no extension, no new application, under any circumstances whatever. Unless, therefore, the letter of the arbitrary Edition: current; Page: [131] law explicitly authorize the enslavement of the child, the child is born free, though the parent were a slave.

If the views that have already been taken of our written constitutions, be correct, no parent has ever yet been legally enslaved in this country; and of course no child. If, however, any one thinks he can place his finger upon any constitutional law, that has enslaved a parent, let him follow that law, and see whether it also expressly authorized the enslavement of the child. If it did not, the child would be free.

It is no new principle that the child of a slave would be born free, but for an express law to the contrary. Some of the slave codes admit the principle—for they have special provisions that the child shall follow the condition of the mother; thus virtually admitting that, but for such a provision, the child would be free, though the mother were a slave.

Under the constitutions of the States and the United States, it requires as explicit and plenary constitutional authority, to make slaves of the children of slaves, as it would to make slaves of anybody else. Is there, in any of the constitutions of this country, any general authority given to the governments, to make slaves of whom they please? No one will pretend it. Is there, then, any particular authority for making slaves of the children of those, who have previously been held in slavery? If there be, let the advocates of slavery point it out. If there be no such authority all their statutes declaring that the children of slaves shall follow the condition of their mothers, are unconstitutional and void; and those children are free by force of the law of nature.

This law of nature, that all men are born free, was recognized by this country in the Declaration of Independence. But it was no new principle then. Justinian says, “Captivity and servitude are both contrary to the law of nature; for by that law all men are born free.” But the principle was not new with Justinian; it exists in the nature of man, and is as old as man—and the race of man generally has acknowledged it. The exceptions have been special; the rule general.

The constitution of the United States recognizes the principle that all men are born free; for it recognizes the principle that natural birth in the country gives citizenship*—which of course Edition: current; Page: [132] implies freedom. And no exception is made to the rule. Of course all born in the country since the adoption of the constitution of the United States, have been born free, whether there were, or were not any legal slaves in the country before that time.

Even the provisions, in the several State constitutions, that the legislatures shall not emancipate slaves, would, if allowed their full effect, unrestrained by the constitution of the United States, hold in slavery only those who were then slaves; it would do nothing towards enslaving their children, and would give the legislatures no authority to enslave them.

It is clear, therefore, that, on this principle alone, slavery would now be extinct in this country, unless there should be an exception of a few aged persons.

It is obvious that legislation can have, in this country, no higher or other authority, than that which results from natural law, and the obligation of contracts; for our constitutions are but contracts, and the legislation they authorize can of course have no other or higher authority than the constitutions themselves. The stream cannot rise higher than the fountain. The idea, therefore, of any inherent authority or sovereignty in our governments, as governments, or of any inherent right in the majority to restrain individuals, by arbitrary enactments, from the exercise of any of their natural rights, is as sheer an imposture as the idea of the divine right of kings to reign, or any other of the doctrines on which arbitrary governments have been founded. And the idea of any necessary or inherent authority in legislation, as such, is, of course, equally an imposture. If legislation be consistent with natural justice, and the natural or intrinsic obligation of the contract of government, it is obligatory: if not, not.

The mass of men are so much accustomed to regard law as an arbitrary command of those who administer political power, that the idea of its being a natural, fixed, and immutable principle, may perhaps want some other support than that of the reasoning already given, to commend it to their adoption. I therefore give them the following corroborations from sources of the highest authority.

“Jurisprudence is the science of what is just and unjust.”—Justinian.

“The primary and principal objects of the law are rights and wrongs.”—Blackstone.

“Justice is the constant and perpetual disposition to render to every man his due.”—Justinian.

“The precepts of the law are to live honestly; to hurt no one; to give to every one his due.”—Justinian & Blackstone.

“Law. The rule and bond of men’s actions; or it is a rule for the well governing of civil society, to give to every man that which doth belong to him.”—Jacob’s Law Dictionary.

“Laws are arbitrary or positive, and natural; the last of which are essentially just and good, and bind everywhere, and in all places where they are observed. * * * * Those which are natural laws, are from God; but those which are arbitrary, are properly human and positive institutions.”—Selden on Fortescue, C. 17, also Jacob’s Law Dictionary.

“The law of nature is that which God, at man’s creation, infused into him, for his preservation and direction; and this is an eternal law, and may not be changed.”—2 Shep. Abr. 356, also Jac. Law Dict.

“All laws derive their force from the law of nature; and those which do not, are accounted as no laws.”—Fortescue, Jac. Law Dict.

“No law will make a construction to do wrong; and there are some things which the law favors, and some it dislikes; it favoreth those things that come from the order of nature.”—1 Inst. 183, 197.—Jac. Law Dict.

“Of law no less can be acknowledged, than that her seat is the bosom of God, her voice the harmony of the world. All things in heaven and earth do her homage; the least as feeling her care, and the greatest as not exempted from her power.”—Hooker.

Blackstone speaks of law as “A science, which distinguishes the criterions of right and wrong; which teaches to establish the one, and prevent, punish or redress the other; which employs in its theory the noblest faculties of the soul, and exerts in its practice the cardinal virtues of the heart; a science, which is universal in its use and extent, accommodated to each individual, yet comprehending the whole community.”—Blackstone’s Lecture on the Study of the Law.

“This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid, derive all their force, and all their authority mediately or immediately, from this original.”—Blackstone, Vol. 1, p. 41.

Mr. Christian, one of Blackstone’s editors, in a note to the above passage, says:

“Lord Chief Justice Hobart has also advanced, that even an act of Parliament made against natural justice, as to make a man judge in his own cause, is void in itself, for jura naturæ sunt immutabilia, and they are leges legum”—(the laws of nature are immutable—they are the laws of laws.)—Hob. 87.

Mr. Christian then adds:

“With deference to these high authorities, (Blackstone and Hobart,) I should conceive that in no case whatever can a judge oppose his own opinion and authority to the clear will and declaration of the legislature. His province is to interpret and obey the mandates of the supreme power of the state. And if an act of Parliament, if we could suppose such a case, should, like the edict of Herod, command all the children under a certain age to be slain, the judge ought to resign his office rather than be auxiliary to its execution; but it could only be declared void by the same legislative power by which it was ordained. If the judicial power were competent to decide that an act of parliament was void because it was contrary to natural justice, upon an appeal to the House of Lords this inconsistency would be the consequence, that as judges they must declare void, what as legislators they had enacted should be valid.

“The learned judge himself (Blackstone) declares in p. 91, if the Parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution, that is vested with authority to control it.”

It will be seen from this note of Mr. Christian, that he concurs in the opinion that an enactment contrary to natural justice is intrinsically void, and not law; and that the principal, if not the only difficulty, which he sees in carrying out that doctrine, is one that is peculiar to the British constitution, and does not exist in the United States. That difficulty is, the “inconsistency” there would be, if the House of Lords, (which is the highest law court in England, and at the same time one branch of the legislature,) were to declare, in their capacity as judges, that an act was void, which, as legislators, they had declared should be valid. And this is probably the reason why Blackstone admitted that he knew of no power in the ordinary forms of the (British) constitution, that was vested with authority to control an act of Parliament that was unreasonable, (against natural justice.) But in the United States, where the judicial and legislative powers are vested in different bodies, and where they are so vested for the very purpose of having the former act as a check upon the latter, no such inconsistency would occur.

The constitutions that have been established in the United States, and the discussions had on the formation of them, all attest the importance which our ancestors attached to a separation of the judicial, from the executive and legislative departments of the government. And yet the benefits, which they had promised to liberty and justice from this separation, have in slight only, if any degree, been realized.—Although the legislation of the country generally has exhibited little less than an entire recklessness both of natural justice and constitutional authority, the records of the judiciary nevertheless furnish hardly an instance where an act of a legislature has, for either of these reasons, been declared void by its co-ordinate judicial department. There have been cases, few and far between, in which the United States courts have declared acts of state legislatures unconstitutional. But the history of the co-ordinate departments of the same governments has been, that the judicial sanction followed the legislative act with nearly the same unerring certainty, that the shadow follows the substance. Judicial decisions have consequently had the same effects in restraining the actions of legislatures, that shadows have in restraining the motions of bodies.

Why this uniform concurrence of the judiciary with the legislature? It is because the separation between them is nominal, not real. The judiciary receive their offices and salaries at the hands of the executive and the legislature, and are amenable only to the legislature for their official character. They are made entirely independent of the people at large, (whose highest interests are liberty and justice,) and entirely dependent upon those who have too many interests inconsistent with liberty and justice. Could a real and entire separation of the judiciary from the other departments take place, we might then hope that their decisions would, in some measure, restrain the usurpations of the legislature, and promote progress in the science of law and of government.

Whether any of our present judges would, (as Mr. Christian suggests they ought,) “resign their offices” rather than be auxiliary to the execution of an act of legislation, that, like the edict of Herod, should require all the children under a certain age to be slain, we cannot certainly know. But this we do know—that our judges have hitherto manifested no intention of resigning their offices to avoid declaring it to be law, that “children of two years old and under,” may be wrested forever from that parental protection which is their birthright, and subjected for life to outrages which all civilized men must regard as worse than death.

To proceed with our authorities:—

“Those human laws that annex a punishment to murder, do not at all increase its moral guilt, or superadd any fresh obligation in the forum of conscience to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.”—Blackstone, Vol. 1, p. 42, 43.

“The law of nations depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues and agreements between these several communities; in the construction also of which compacts, we have no other rule to resort to but the law of nature: (that) being the only one to which all the communities are equally subject.”—Blackstone, Vol. 1, p. 43.

“Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.”—Blackstone, Vol. 1, p. 54.

“By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society, or in it.”—Blackstone, Vol. 1, p. 123.

“The principal aim of society (government) is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies; so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human law is, or ought always to be, to explain, protect, and enforce such rights as are absolute; which, in themselves, are few and simple: and then such rights as are relative, which, arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind.”—Blackstone, Vol. 1, p. 124.

“The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature, being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endowed him with the faculty of free will.”—Blackstone, Vol. 1, p. 125.

“Moral or natural liberty, (in the words of Burlamaqui, ch. 3, s. 15,) is the right, which nature gives to all mankind of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and that they do not any way abuse it to the prejudice of any other men.”—Christian’s note, Blackstone, Vol. 1, p. 126.

“The law of Nature is antecedent and paramount to all human governments. * * * Every individual of the human race comes into the world with rights, which, if the whole aggregate of human power were concentrated in one arm, it could not take away. * * * The Declaration of Independence recognizes no despotism, monarchical, aristocratic, or democratic. It declares that individual man is possessed of rights of which no government can deprive him.”—John Quincy Adams.

All the foregoing definitions of law, rights and natural liberty, although some of them are expressed in somewhat vague and indefinite terms, nevertheless recognize he primary idea, that law is a fixed principle, resulting from men’s natural rights: and that therefore the acknowledgment and security of the natural rights of individuals constitute the whole basis of law as a science, and a sine qua non of government as a legitimate institution.

And yet writers generally, who acknowledge the true theory of government and law, will nevertheless, when discussing matters of legislation, violate continually the fundamental principles with which they set out. On some pretext of promoting a great public good, the violation of individual rights will be justified in particular cases; and the guardian principle being once broken down, nothing can then stay the irruption of the whole horde of pretexts for doing injustice; and government and legislation thenceforth become contests between factions for power and plunder, instead of instruments for the preservation of liberty and justice equally to all.

The current doctrine that private rights must yield to the public good, amounts, in reality, to nothing more nor less than this, that an individual or the minority must consent to have less than their rights, in order that other individuals, or the majority, may have more than their rights. On this principle no honest government could ever be formed by voluntary contract, (as our governments purport to be;) because no man of common sense would consent to be one of the plundered minority, and no honest man could wish to be one of the plundering majority.

The apology, that is constantly put forth for the injustice of government, viz., that a man must consent to give up some of his rights, in order to have his other rights protected—involves a palpable absurdity, both legally and politically. It is an absurdity in law, because it says that the law must be violated in some cases, in order that it may be maintained in others. It is an absurdity politically, because a man’s giving up one of his rights has no tendency whatever to promote the protection of others. On the contrary, it only renders him less capable of defending himself, and consequently makes the task of his protection more burdensome to the government. At the same time it places him in the situation of one who has conceded a part of his rights, and thus cheapened the character of all his rights in the eyes of those of whom he asks assistance. There would be as much reason in saying that a man must consent to have one of his hands tied behind him, in order that his friends might protect the rest of his body against an enemy, as there is in saying that a man must give up some of his rights in order that government may protect the remainder. Let a man have the use of both of his hands, and the enjoyment of all his rights, and he will then be more competent to his own defence; his rights will be more respected by those who might otherwise be disposed to invade them; he will want less the assistance and protection of others; and we shall need much less government than we now have.

If individuals choose to form an association or government, for the mutual protection of each other’s rights, why bargain for the protection of an indefinite portion of them, at the price of giving to the association itself liberty to violate the equally indefinite remainder? By such a contract, a man really surrenders everything, and secures nothing. Such a contract of government would be a burlesque on the wisdom of asses. Such a contract never was, nor ever will be voluntarily formed. Yet all our governments act on that principle; and so far as they act upon it, they are as essentially usurping and tyrannical as any governments can be. If a man pay his proportion of the aggregate cost of protecting all the rights of each of the members of the association, he thereby acquires a claim upon the association to have his own rights protected without diminution.

The ultimate truth on this subject is, that man has an inalienable right to so much personal liberty as he will use without invading the rights of others. This liberty is an inherent right of his nature and his faculties. It is an inherent right of his nature and his faculties to develope themselves freely, and without restraint from other natures and faculties, that have no superior prerogatives to his own. And this right has only this limit, viz., that he do not carry the exercise of his own liberty so far as to restrain or infringe the equally free development of the natures and faculties of others. The dividing line between the equal liberties of each must never be transgressed by either. This principle is the foundation and essence of law and of civil right. And legitimate government is formed by the voluntary association of individuals, for the mutual protection of each of them in the enjoyment of this natural liberty, against those who may be disposed to invade it. Each individual being secured in the enjoyment of this liberty, must then take the responsibility of his own happiness and well-being. If his necessities require more than his faculties will supply, he must depend upon the voluntary kindness of his fellow-men; unless he be reduced to that extremity where the necessity of self-preservation over-rides all abstract rules of conduct, and makes a law for the occasion—an extremity, that would probably never occur but for some antecedent injustice.

United States vs. Fisher, 2 Cranch, 390.

The second charter to Virginia (1609) grants the power of making “orders, ordinances, constitutions, directions and instructions,” “so always as the said statutes, ordinances and proceedings, as near as conveniently may be, be agreeable to the laws, statutes, government and policy of this our realm of England.”

The third charter (1611—12) gave to the “General Court” “power and authority” to “make laws and ordinances” “so always as the same be not contrary to the laws and statutes of our realm of England.”

The first charter to Carolina, (including both North and South Carolina,) dated 1663, authorized the making of laws under this proviso—“Provided nevertheless, that the said laws be consonant to reason, and as near as may be conveniently, agreeable to the laws and customs of this our kingdom of England.”

The second charter (1665) has this proviso. “Provided nevertheless, that the said laws he consonant to reason, and as near as may be conveniently, agreeable to the laws and customs of this our realm of England.”

The charter to Georgia, (1732,) an hundred years after slavery had actually existed in Virginia, makes no mention of slavery, but requires the laws to be “reasonable and not repugnant to the laws of this our realm.” “The said corporation shall and may form and prepare laws, statutes and ordinances fit and necessary for and concerning the government of the said colony, and not repuguant to the laws and statutes of England.”

The charter to Maryland gave the power of making laws, “So, nevertheless, that the laws aforesaid be consonant to reason, and be not repugnant or contrary, but (so far as conveniently may be,) agreeable to the laws, statutes, customs, and rights of this our kingdom of England.”

The charter granted to Sir Edward Plowden had this proviso. “So, nevertheless, that the laws aforesaid be consonant to reason, and not repugnant and contrary, (but as convenient as may be to the matter in question,) to the laws, statutes, customs and rights of our kingdoms of England and Ireland.”

In the charter to Pennsylvania, power was granted to make laws, and the people were required to obey them, “Provided nevertheless that the said laws be consonant to reason, and be not repugnant or contrary, but, as near as conveniently may be, agreeable to the laws, statutes, and rights of this our kingdom of England.”

I have not been able to find a copy of the charter granted to the Duke of York, of the territory comprising New York, New Jersey, &c. But Gordon, in his history of the American Revolution, (vol. 1, p. 43,) says, “The King’s grant to the Duke of York, is plainly restrictive to the laws and government of England.”

The charter to Connecticut gave power “Also from time to time, to make, ordain and establish all manner of wholesome and reasonable laws, statutes, ordinances, directions and instructions, not contrary to the laws of this realm of England.”

The charter to the Massachusetts Bay Colony, (granted by William and Mary,) gave “full power and authority, from time to time, to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to the laws of this our realm of England.”

The charter to Rhode Island granted the power of making laws, “So as such laws, ordinances, constitutions, so made, be not contrary and repugnant unto, but (as near as may be) agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there.”

Several other charters, patents, &c., that had a temporary existence, might be named, that contained substantially the same provision.

In the case of the town of Pawlet v. Clarke and others, the court say—

“Let us now see how far these principles were applicable to New Hampshire, at the time of issuing the charter to Pawlet.

“New Hampshire was originally erected into a royal province in the thirty-first year of Charles II., and from thence until the revolution continued a royal province, under the immediate control and direction of the crown. By the first royal commission granted in 31 Charles II., among other things, judicial powers, in all actions, were granted to the provincial governor and council, ‘So always that the form of proceeding in such cases, and the judgment thereupon to be given, be as consonant and agreeable to the laws and statutes of this our realm of England, as the present state and condition of our subjects inhabiting within the limits aforesaid (i. e. of the province) and the circumstances of the place will admit.’ Independent, however, of such a provision, we take it to be a clear principle that the common law in force at the emigration of our ancestors, is deemed the birthright of the colonies, unless so far as it is inapplicable to their situation, or repugnant to their other rights and privileges. A fortiori the principle applies to a royal province.”—(9 Cranch’s U. States’ Reports, 332-3.)

Somerset v. Stewart.—Lofft’s Reports, p. 1 to 19, of Easter Term, 1772. In the Dublin edition the case is not entered in the Index.

Have Parliament the constitutional prerogative of abolishing the writ of habeas corpus? the trial by jury? or the freedom of speech and the press? If not, have they the prerogative of abolishing a man’s right of property in his own person?

Mr. Bancroft, in the third volume of his history, (pp. 413-14,) says:

“And the statute book of England soon declared the opinion of its king and its Parliament, that ‘the trade,’ ” (by which he means the slave trade, of which he is writing,) “ ‘is highly beneficial and advantageous to the kingdom and the colonies.’ ” To prove this he refers to statute of “1695, 8 and 10 Wm. 3, ch. 26.” (Should be 1697, 8—9 and 10 Wm. 3, ch. 26.)

Now the truth is that; although this statute may have been, and very probably was designed to insinuate to the slave traders the personal approbation of Parliament to the slave trade, yet the statute itself says not a word of slaves, slavery, or the slave trade, except to forbid, under penalty of five hundred pounds, any governor, deputy-governor or judge, in the colonies or plantations in America, or any other person or persons, for the use or on the behalf of such governor, deputy-governor or judges, to be “a factor or factor’s agent or agents” “for the sale or disposal of any negroes.”

The statute does not declare, as Mr. Bancroft asserts, that “the (slave) trade is highly beneficial and advantageous to the kingdom and the colonies;” but that “the trade to Africa is highly beneficial and advantageous,” &c. It is an inference of Mr. Bancroft’s that “the trade to Africa” was the slave trade. Even this inference is not justified by the words of the statute, considering them in that legal view, in which Mr. Bancroft’s remarks purport to consider them.

It is true that the statute assumes that “negroes” will be “imported” from Africa into “England,” (where of course they were not slaves,) and into the “plantations and colonies in America.” But it nowhere calls these “negroes” slaves, nor assumes that they are slaves. For aught that appears from the statute, they were free men and passengers, voluntary emigrants, going to “England” and “the plantations and colonies” as laborers, as such persons are now going to the British West Indies.

The statute, although it apparently desires to insinuate or faintly imply that they are property, or slaves, nevertheless studiously avoids to acknowledge them as such distinctly, or even by any necessary implication; for it exempts them from duties as merchandize, and from forfeiture for violation of revenue laws, and it also relieves the masters of vessels from any obligation to render any account of them at the custom houses.

When it is considered that slavery, property in man, can be legalized, according to the decision of Lord Mansfield, by nothing less than positive law; that the rights of property and person are the same on board an English ship, as in the island of Great Britain; and that this statute implies that these “negroes” were to be “imported” into “England,” as well as into the “plantations and colonies in America,” and that it therefore no more implies that they were to be slaves in “the plantations and colonies” than in “England,” where we know they could not be slaves; when these things are considered, it is perfectly clear, as a legal proposition, that the statute legalized neither slavery in the plantations and colonies, nor the slave trade from Africa to America—however we may suppose it to have been designed to hint a personal approbation, on the part of Parliament, of the actual traffic.

But lest I may be suspected of having either misrepresented the words of the statute, or placed upon them an erroneous legal construction, I give all the words of the statute, that make any mention of “negroes,” or their importation, with so much of the context as will enable the reader to judge for himself of the legal import of the whole.

The act is entitled, “An Act to settle the Trade to Africa.” Sec. 1, recites as follows:—

“Whereas, the Trade to Africa is highly beneficial and advantageous to this kingdom and to the Plantations and Colonies thereunto belonging.”

The act contains twenty-one sections, regulating trade, duties, &c., like any other navigation act. “Negroes” are mentioned only in the following instances and connexions, to wit:

Sec. 7. “And be it enacted by the authority aforesaid, That from and after the four-and-twentieth day of June, one thousand six hundred ninety-and-eight, it shall and may be lawful to and for any of the subjects of his majesty’s realms of England, as well as the said Company,* to trade from England or any of his majesty’s plantations or colonies in America to the coast of Africa, between Blanco and Cape Mount, answering and paying a duty of ten pounds per centum ad valorem for the goods and merchandises to be exported from England or any of his majesty’s plantations or colonies in America to and for the coast of Africa, between Cape Blanco and Cape Mount, and in proportion for a greater or lesser value, and answering and paying a further sum and duty of ten pounds per centum ad valorem, red wood only excepted, which is to pay five pounds per centum ad valorem, at the place of importation upon all goods and merchandize (negroes excepted) imported in (into) England or any of his majesty’s plantations or colonies in America, from the coast of Africa, between Cape Blanco and Cape Mount aforesaid. * * * And that all goods and merchandize, (negroes excepted,) that shall be laded or put on board any ship or vessel on the coast of Africa, between Cape Blanco and Cape Mount, and shall be imported into England or into any of his majesty’s plantations or colonies aforesaid, shall answer and pay the duties aforesaid, and that the master or chief officer of every such ship or vessel that shall lade or receive any goods or merchandize (negroes excepted) on board of his or their ship or vessel between Cape Blanco and Cape Mount, shall upon making entry at any of his majesty’s custom houses aforesaid of the said ship or vessel, or before any goods or merchandize be landed or taken out of the said ship or vessel (negroes excepted) shall deliver in a manifest or particular of his cargo, and take the following oath, viz.

“I, A. B., do swear that the manifest or particular now by me given in and signed, to the best of my knowledge and belief doth contain, signify and express all the goods, wares and merchandizes, (negroes excepted,) which were laden or put on board the ship called the—, during her stay and continuing on the coast of Africa between Cape Blanco and Cape Mount, whereof I, A. B., am master.”

Sec. 8. “And that the owner or importer of all goods and merchandize (negroes excepted) which shall be brought to England or any of his majesty’s plantations from any port of Africa between Cape Blanco and Cape Mount aforesaid shall make entry of all such goods and merchandize at one of his majesty’s chief custom houses in England, or in such of his majesty’s plantations where the same shall be imported,” &c.

Sec. 9. * * * “that all goods or merchandizes (negroes excepted) which shall be brought from any part of Africa, between Cape Blanco and Cape Mount aforesaid, which shall be unladed or landed before entry made and signed and oath of the true and real value thereof made and the duty paid as aforesaid, shall be forfeited, or the value thereof.”

Sec. 20. “And be it further enacted by the authority aforesaid, that no governor, or deputy-governor of any of his majesty’s colonies or plantations in America, or his majesty’s judges in any courts there for the time being, nor any other person or persons for the use or on behalf of such governor or deputy-governor or judges, from and after the nine-and-twentieth day of September, one thousand six hundred and ninety-eight, shall be a factor or factor’s agent or agents for the said Company,* or any other person or persons for the sale or disposal of any negroes, and that every person offending herein shall forfeit five hundred pounds to the uses aforesaid, to be recovered in any of his majesty’s courts of record at Westminster, by action of debt, bill, plaint or information, wherein no essoign, protection, privilege or wager of law shall be allowed, nor any more than one imparlance.”

Sec. 21. “Provided that this act shall continue and be in force thirteen years, and from thence to the end of the next sessions of Parliament, and no longer.”

Even if this act had legalized (as in reality it did not legalize) the slave trade during those thirteen years, it would be impossible now to distinguish the descendants of those who were imported under it, from the descendants of those who had been previously, and were subsequently imported and sold into slavery without law. The act would therefore avail nothing towards making the existing slavery in this country legal.

The next statute, of which I find any trace, passed by Parliament, with any apparent view to countenance the slave trade, was the statute of 23d George II., ch. 31, (1749—50.)

Mr. Bancroft has committed another still more serious error in his statement of the words (for he professes to quote precise words) of this statute. He says, (vol. 3, p. 414,)

“At last, in 1749, to give the highest activity to the trade, (meaning the slave trade,) every obstruction to private enterprise was removed, and the ports of Africa were laid open to English competition, for ‘the slave trade,’—such” (says Mr. Bancroft,) “are the words of the statute—‘the slave trade is very advantageous to Great Britain.’ ”

As words are, in this case, things—and things of the highest legal consequence—and as this history is so extensively read and received as authority—it becomes important, in a legal, if not historical, point of view, to correct so important an error as that of the word slave in this statement. “The words of the statute” are not that “the slave trade,” but that “the trade to and from Africa is very advantageous to Great Britain.” “The trade to and from Africa” no more means, in law, “the slave trade,” than does the trade to and from China. From aught that appears, then, from so much of the preamble, “the trade to and from Africa” may have been entirely in other things than slaves. And it actually appears from another part of the statute, that trade was carried on in “gold, elephant’s teeth, wax, gums and drugs.”

From the words immediately succeeding those quoted by Mr. Bancroft from the preamble to this statute, it might much more plausibly, (although even from them it could not be legally) inferred that the statute legalized the slave trade, than from those pretended to be quoted by him. That the succeeding words may be seen, the title and preamble to the act are given, as follows:

“An act for extending and improving the trade to Africa.”

“Whereas, the trade to and from Africa is very advantageous to Great Britain, and necessary for supplying the plantations and colonies thereunto belonging, with a sufficient number of negroes at reasonable rates; and for that purpose the said trade” (i. e. “the trade to and from Africa”) “ought to be free and open to all his majesty’s subjects. Therefore be it enacted,” &c.

“Negroes” were not slaves by the English law, and therefore the word “negroes,” in this preamble, does not legally mean slaves. For aught that appears from the words of the preamble, or even from any part of the statute itself, these “negroes,” with whom it is declared to be necessary that the plantations and colonies should be supplied, were free persons, voluntary emigrants, that were to be induced to go to the plantations as hired laborers, as are those who, at this day, are induced, in large numbers, and by the special agency of the English government, to go to the British West Indies. In order to facilitate this emigration, it was necessary that “the trade to and from Africa” should be encouraged. And the form of the preamble is such as it properly might have been, if such had been the real object of Parliament. Such is undoubtedly the true legal meaning of this preamble, for this meaning being consistent with natural right, public policy, and with the fundamental principles of English law, legal rules of construction imperatively require that this meaning should be ascribed to it, rather than it should be held to authorize anything contrary to natural right, or contrary to the fundamental principles of British law.

We are obliged to put this construction upon this preamble, for the further reason that it corresponds with the enacting clauses of the statute—not one of which mentions such a thing as the transportation of slaves to, or the sale of slaves in “the plantations and colonies.” The first section of the act is in these words, to wit:

“That it shall and may be lawful for all his majesty’s subjects to trade and traffic to and from any port or place in Africa, between the port of Sallee in South Barbary, and the Cape of Good Hope, when, at such times, and in such manner, and in or with such quantity of goods, wares and merchandizes, as he or they shall think fit, without any restraint whatsoever, save as is herein after expressed.”

Here plainly is no authority given “to trade and traffic” in anything except what is known either to the English law, or the law of nature, as “goods, wares, or merchandizes”—among which men were not known, either to the English law, or the law of nature.

The second section of the act is in these words:

“That all his majesty’s subjects, who shall trade to or from any of the ports or places of Africa, between Cape Blanco and the Cape of Good Hope, shall forever hereafter be a body corporate and politic, in name and in deed, by the name of the Company of Merchants Trading to Africa, and by the same name shall have perpetual succession, and shall have a common seal, and by that name shall and may sue, and be sued, and do any other act, matter and thing, which any other body corporate or politic, as such, may lawfully do.”

Neither this nor any other section of the act purports to give this “Company,” in its corporate capacity, any authority to buy or sell slaves, or to transport slaves to the plantations and colonies.

The twenty-ninth section of the act is in these words:

“And be it further enacted, by the authority aforesaid, that no commander or master of any ship trading to Africa, shall by fraud, force or violence, or by any other indirect practice whatsoever, take on board, or carry away from the coast of Africa, any negro or native of the said country, or commit, or suffer to be committed, any violence on the natives, to the prejudice of the said trade; and that every person so offending shall, for every such offence, forfeit the sum of one hundred pounds of lawful money of Great Britain; one moiety thereof to the use of the said Company hereby established, and their successors, for and towards the maintaining of said forts and settlements, and the other moiety to and for the use of him or them who shall inform or sue for the same.”

Now, although there is perhaps no good reason to doubt that the secret intention of Parliament in the passage of this act, was to stimulate the slave trade, and that there was a tacit understanding between the government and the slave dealers, that the slave trade should go on unharmed (in practice) by the government, and although it was undoubtedly understood that this penalty of one hundred pounds would either not be sued for at all, or would be sued for so seldom as practically to interpose no obstacle to the general success of the trade, still, as no part of the whole statute gives any authority to this “Company of Merchants trading to Africa” to transport men from Africa against their will, and as this twenty-ninth section contains a special prohibition to individuals, under penalty, to do so, no one can pretend that the trade was legalized. If the penalty had been but one pound, instead of one hundred pounds, it would have been sufficient, in law to have rebutted the pretence that the trade was legalized. The act, on its face and in its legal meaning, is much more an act to prohibit, than to authorize the slave trade.

The only possible legal inference from the statute, so far as concerns the “supplying the plantations and colonies with negroes at reasonable rates,” is, that these negroes were free laborers, voluntary emigrants, that were to be induced to go to the plantations and colonies; and that “the trade to and from Africa” was thrown open in order that the facilities for the transportation of these emigrants might be increased.

But although there is, in this statute, no authority given for—but, on the contrary, a special prohibition upon—the transportation of the natives from Africa against their will, yet I freely admit that the statute contains one or two strong, perhaps decisive implications in favor of the fact that slavery was allowed in the English settlements on the coast of Africa, apparently in conformity with the customs of the country, and with the approbation of Parliament. But that is the most that can be said of it. Slavery, wherever it exists, is a local institution; and its toleration, or even its legality, on the coast of Africa, would do nothing towards making it legal in any other part of the English dominions. Nothing but positive and explicit legislation could transplant it into any other part of the empire.

The implications, furnished by the act, in favor of the toleration of slavery, in the English settlements, on the coast of Africa, are the following:

The third section of the act refers to another act of Parliament “divesting the Royal African Company of their charter, forts, castles and military stores, canoe men and castle-slaves;” and section thirty-first requires that such “officers of his majesty’s navy,” as shall be appointed for the purpose, “shall inspect and examine the state and condition of the forts and settlements on the coast of Africa, in the possession of the Royal African Company, and of the number of the soldiers therein, and also the state and condition of the military stores, castles, slaves, canoes and other vessels and things, belonging to the said company, and necessary for the use and defence of the said forts and settlements, and shall with all possible despatch report how they find the same.”

Here the fact is stated that the “Royal African Company,” (a company that had been in existence long previous to the passing of this act,) had held “castle slaves” “for the use and defence of the said forts and settlements.” The act does not say directly whether this practice was legal or illegal; although it seems to imply that, whether legal or illegal, it was tolerated with the knowledge and approbation of Parliament.

But the most distinct approbation given to slavery by the act, is implied in the twenty-eighth section, in these words:

“That it shall and may be lawful for any of his majesty’s subjects trading to Africa, for the security of their goods and slaves, to erect houses and warehouses, under the protection of the said forts,” &c.

Although even this language would not be strong enough to overturn previously established principles of English law, and give the slave holders a legal right of property in their slaves, in any place where English law had previously been expressly established, (as it had been in the North American colonies,) yet it sufficiently evinces that Parliament approved of Englishmen holding slaves in the settlements on the coast of Africa, in conformity with the customs of that country. But it implies no authority for transporting their slaves to America; it does nothing towards legalizing slavery in America; it implies no toleration even of slavery anywhere, except upon the coast of Africa. Had slavery been positively and explicitly legalized on the coast of Africa, it would still have been a local institution.

This reasoning may appear to some like quibbling; and it would perhaps be so, were not the rule well settled that nothing but explicit and irresistible language can be legally held to authorize anything inconsistent with natural right, and with the fundamental principles of a government.

That this statute did not legalize the right of property in man, (unless as a local principle on the coast of Africa,) we have the decision of Lord Mansfield, who held that it did not legalize it in England; and if it did not legalize it in England, it did not legalize it in any of the colonies where the principles of the common law prevailed. Of course it did not legalize it in the North American colonies.

But even if it were admitted that this statute legalized the right of property, on the part of the slave trader, in his slaves taken in Africa after the passage of the act, and legalized the sale of such slaves in America, still the statute would be ineffectual to sustain the legality of slavery, in general, in the colonies. It would only legalize the slavery of those particular individuals, who should be transported from Africa to America, subsequently to the passage of this act, and in strict conformity with the law of this act—(a thing, by the way, that could now be proved in no case whatever.) This act was passed in 1749—50, and could therefore do nothing towards legalizing the slavery of all those who had, for an hundred and thirty years previous, been held in bondage in Virginia and elsewhere. And as no distinction can now be traced between the descendants of those who were imported under this act, and those who had illegally been held in bondage prior to its passage, it would be of no practical avail to slavery now, to prove, (if it could be proved,) that those introduced into the country subsequent to 1750, were legally the property of those who introduced them.

The Royal African Company.

The Royal African Company.

“Chastise.” An act passed in South Carolina in 1740, authorized slaves to sue for their liberty, by a guardian appointed for the purpose. The act then provides that if judgment be for the slave, he shall be set free, and recover damages; “but in case judgment shall be given for the defendant, (the master,) the said court is hereby fully empowered to inflict such corporeal punishment, not extending to life or limb, on the ward of the plaintiff, (the slave,) as they in their discretion shall see fit.”—Brevard’s Digest, vol. 2, p. 130.

“Baptize.” In 1712 South Carolina passed this act:

“Since charity and the Christian religion which we profess, obliges us to wish well to the souls of all men, and that religion may not be made a pretence to alter any man’s property and right, and that no persons may neglect to baptize their negroes or slaves, or suffer them to be baptized, for fear that thereby they should be manumitted and set free: Be it therefore enacted, That it shall be, and is hereby declared lawful for any negro or Indian slave, or any other slave or slaves whatsoever, to receive and profess the Christian faith, and be thereunto baptized. But that notwithstanding such slave or slaves shall receive and profess the Christian religion, and be baptized, he or they shall not thereby be manumitted or set free, or his or their owner, master or mistress lose his or their civil right, property and authority over such slave or slaves, but that the slave or slaves, with respect to his or their servitude, shall remain and continue in the same state and condition, that he or they was in before the making of this act.”—Grimke, p. 18. Brevard, vol. 2, p. 229.

In 1667, the following statute was passed in Virginia:

“Whereas, some doubts have arisen whether children that are slaves by birth, and by the charity and piety of their owners made partakers of the blessed sacrament of baptism, should by virtue of their baptism be made free; It is enacted and declared by this grand assembly, and the authority thereof, that the conferring of baptism doth not alter the condition of the person as to his bondage or freedom; that divers masters, freed from this doubt, may more carefully endeavour the propagation of Christianity by permitting children, though slaves, or those of greater growth, if capable to be admitted to that sacrament.”—Hening’s Statutes, vol. 2. p. 260.

Hening, vol. 2, p. 283.

Hening, vol. 5, p. 547-8.

In 1753 Virginia passed a statute, occupying some twelve or fifteen pages of the statute book, and intended to cover the whole general subject of slavery. One of the sections of this act is as follows:

“That all and every other act and acts, clause and clauses, heretofore made, for or concerning any matter or thing within the provision of this act, shall be and are hereby repealed.”—Hening’s Statutes, vol. 6, p. 369.

No reservation being made, by this section, of rights acquired under former statutes, and slave property being a matter dependent entirely upon statute, all title to slave property, acquired under former acts, was by this act annihilated; and all the slaves in the State were made freemen, as against all prior legislation. And the slaves of the State were thenceforward held in bondage only by virtue of another section of the same act, which was in these words:

“That all persons who have been, or shall be imported into this colony, by sea or land, and were not Christians in their native country, except Turks and Moors in amity with his majesty, and such who can prove their being free in England, or any other Christian country, before they were shipped for transportation hither, shall be accounted slaves, and as such be here bought and sold, notwithstanding a conversion to Christianity after their importation.”—Hening, vol. 6, p. 356-7.

The act also provided, “That all children shall be bond or free, according to the condition of their mothers and the particular directions of this act.”

The following is the preamble and the important enacting clause of this statute of 1740:

“Whereas, in his majesty’s plantations in America, slavery has been introduced and allowed; and the people commonly called negroes, Indians, mulattos and mestizoes have (been) deemed absolute slaves, and the subjects of property in the hands of particular persons; the extent of whose power over such slaves ought to be settled and limited by positive laws, so that the slaves may be kept in due subjection and obedience, and the owners and other persons having the care and government of slaves, may be restrained from exercising too great rigor and cruelty over them; and that the public peace and order of this province may be preserved: Be it enacted, That all negroes, Indians, (free Indians in amity with this government, and negroes, mulattos and mestizoes, who are now free, excepted,) mulattos and mestizoes, who now are or shall hereafter be in this province, and all their issue and offspring born or to be born, shall be and they are hereby declared to be and remain forever hereafter absolute slaves, and shall follow the condition of the mother,” &c.—Grimke, p. 163-4. Brevard, vol. 2, p. 229.

The State Constitutions of 1789 were adopted as follows: Georgia, 1777 South Carolina, 1778; North Carolina, 1776; Virginia, 1776; Maryland, 1776, Delaware, 1776; Pennsylvania, 1776; New Jersey, 1776; New York, 1777; Mas sachusetts, 1780; New Hampshire, 1783.

These early Constitutions ought to be collected and published with appropriate notes.

Since that time the words “free” and “freemen” have been gradually falling into disuse, and the word citizen been substituted—doubtless for the reason that it is not pleasant to our pride or our humanity to use words, one of whose significations serves to suggest a contrast between ourselves and slaves.

Dallas’ edition of the Laws of Pennsylvania, vol. 1, Appendix, page 25.

Cooper’s edition of the Laws of South Carolina, vols. 2 and 4. “Alieus.”

This language of the Supreme Court contains an admission of the truth of the charge just made against judges, viz., that rather than lose their offices, they will violate what they know to be law, in subserviency to the legislatures on whom they depend; for it admits, 1st, that the preservation of men’s rights is the vital principle of law, and, 2d, that courts (and the Supreme Court of the United States in particular) will trample upon that principle at the bidding of the legislature, when the mandate comes in the shape of a statute of such “irresistible clearness,” that its meaning cannot be evaded.

“Laws are construed strictly to save a right.”—Whitney et al. vs. Emmett et al., 1 Baldwin, C. C. R. 316.

“No law will make a construction to do wrong; and there are some things which the law favors, and some it dislikes; it favoreth those things that come from the order of nature.—Jacob’s Law Dictionary, title Law.

In the convention that framed the constitution, when this clause was under discussion, “servants” were spoken of as a distinct class from “slaves.” For instance, “Mr. Butler and Mr. Pickney moved to require ‘fugitive slaves and servants to be delivered up like criminals.’ ” Mr. Sherman objected to delivering up either slaves or servants. He said he “saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.”—Madison Papers, p. 1447-8.

The language finally adopted shows that they at last agreed to deliver up “servants,” but not “slaves”—for as the word “servant” does not mean “slave,” the word “service” does not mean slavery.

These remarks in the convention are quoted, not because the intentions of the convention are of the least legal consequence whatever; but to rebut the silly arguments of those who pretend that the convention, and not the people, adopted the constitution—and that the convention did not understand the legal difference between the word “servant” and “slave,” and therefore used the word “service” in this clause, as meaning slavery.

It is a well settled rule of interpretation, that each single word of an instrument must be taken to have some appropriate reference or relation to the matters treated of in the rest of the instrument, where it is capable of such a meaning. By this rule the words “free” and “freeman,” when used in charters of incorporation, universally apply to persons who are members of the corporation—or are (as it is termed) “free of the company” or corporation, created by the charter—that is, free to enjoy, as a matter of right, the privileges of the corporation. It is not probable that, at the adoption of the constitution, any other use of these words, “free” and “freeman,” could have been found in a single charter of incorporation in the English language, whether the charter were one of a trading corporation, of a city, a colony, or a State. Now, the constitution of the United States is but the charter of a corporation. Its object is to form “the people of the United States” into a corporation, or body politic, for the purpose of maintaining government, and for dispensing the benefits of government to the members of the corporation. If the word “free,” in such a charter, is to be construed to have any reference to the general subject matter of the charter, it of course refers to those who are members of the corporation; to the citizens; those who are “free of the corporation,” as distinguished from aliens, or persons not members of the corporation.

But the advocates of slavery are compelled to adopt the absurdity of denying that the meaning of the word “free” has any relation to the rest of the instrument; or any reference to the persons who are really “free of the corporation,” which the instrument creates. They are obliged to maintain that it is used only to describe those who are free from some individual tyranny, which the instrument nowhere else recognizes as existing, and which really had no legal existence to be recognized.

All this is a palpable violation of a perfectly well settled rule of interpretation—of a rule, which is obviously indispensable for maintaining any kind of coherence between the different parts of an instrument.

Gibbons vs. Ogden.—(9 Wheaton, 1.)

Since the publication of the first edition, it has been asked whether the “tax or duty” authorized by the clause, does not imply that the persons imported are property? The answer is this. “A tax or duty” on persons is a poll tax; and a poll tax is a tax or duty on persons—nothing more—nothing less. A poll tax conveys no implication that the persons, on whom the tax is levied, are property—otherwise all of us, on whom a poll tax has ever been levied, were deemed by the law to be property—and if property, slaves. A poll tax on immigrants no more implies that they are slaves, than a poll tax on natives implies that the latter are slaves.

“The government (of the U. S.) proceeds directly from the people; is ‘ordained and established’ in the name of the people.”—M’Culloch vs. Maryland, 4 Wheaton, 403.

“The government of the Union is emphatically and truly, a government of the people; and in form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”—Same, pages 404, 405.

“The constitution of the United States was ordained and established, not by the United States in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’ ”—Martin vs. Hunter’s lessee, 1 Wheaton, 324.

That is, male persons. The constitution, whenever it uses the pronoun, in speaking of the President, uniformly uses the masculine gender—from which it may be inferred that male persons only were intended to be made eligible to the office.

Perhaps this inference might not be allowable, if either the office, or eligibility to the office, were anything that any one could naturally claim as a right. But neither can be claimed as a right. The office is not given to any one because he has a right to it, nor because it may be even a benefit to him. It is conferred upon him, or rather confided to him, as a trust, and solely as a trust, for the sole benefit of the people of the United States. The President, as President, is not supposed to have any rights in the office on his own account; or any rights except what the people, for their own benefit, and not for his, have voluntarily chosen to grant to him. And the people have a right to confide this trust to whomsoever they please, or to whomsoever they think it will be most for their interest to confide it. And no one can say that his rights are either violated or withheld, merely because he is not selected for the trust, even though his real fitness for the trust should be altogether superior to that of the one selected. He can only say that his merits or qualifications are not properly appreciated. The people have naturally the same free, unqualified, irresponsible right to select their agents or servants, according to their pleasure or discretion, that a private individual has to select his, without giving any one, who is not selected, any reason to say that his rights are violated. The most fit person has no more claim, in the nature of a right, to the office, than a person the least fit; he has only qualifications; no one has rights.

The people, then, who establish this office, and for whose benefit alone it is to be filled, and whose servant the President is, have naturally an unqualified right to exercise their free pleasure or discretion in the selection of the person to fill it, without giving any one, who is not selected, any ground for saying that his rights are withheld, or for saying anything other than that his merits or abilities are not properly estimated. The people, for example, have a right to say, as in their constitution they have said, that they will confide this trust to no one who is not thirty-five years old; and they do not thereby infringe or withhold any of the rights of those who are under thirty-five years old; although it is possible that they do not properly estimate their fitness for the office. So they have a perfect right to say that they will not confide this trust to women; and women cannot say that their rights are thereby withheld; although they are at liberty to think and say that their qualifications for the office are not appreciated.

Inasmuch, then, as no rights are withheld or violated by making male persons only eligible to the office, we are at perfect liberty to construe the language of the constitution according to its grammatical meaning, without seeking to go beyond it. According to this meaning, male persons only are eligible—for the constitution speaks of “the President” as a single individual; and very properly too—for although different individuals may fill the office, yet only one can fill it at a time, and the office is presumed never to he vacant. It is therefore of the officer, as a single and perpetual one, and not of the different individuals, (as individuals,) who may at different times fill the office, that the constitution speaks, when it speaks of “the President.” And in speaking of this perpetual officer as a single individual, it uniformly uses the masculine pronoun. Inasmuch as it would be a plain violation of grammatical rules to speak of a single and particular individual as a male person, if the individual were a female, it may (and probably must) be inferred that the constitution did not intend that the office should ever be filled by any other than a male person.

Somerset was not a citizen of England, or entitled, as such, to the protection of the English law. The privilege of the writ of habeas corpus was granted to him on the ground simply of his being a man.

From whom come these objections to the “propriety” of the general government’s interfering to maintain republicanism in the states? Do they not come from those who have ever hitherto claimed that the general government was bound to interfere to put down republicanism? And that those who were republicans at the north, might with perfect “propriety” and consistency, pledge their assistance to the despots of the south, to sustain the worst, the meanest and most atrocious of tyrannies? Yes, from the very same. To interfere to assist one half of the people of a state in the cowardly, cruel and fiendish work of crushing the other half into the earth, corresponds precisely with their chivalrous notions of “propriety;” but it is insufferable officiousness for them to form any political compacts that will require them to interfere to protect the weak against the tyranny of the strong, or to maintain justice, liberty, peace and freedom.

Eli Whitney.

The Supreme Court say, “The instrument, when it came from their hands, (that is, the hands of the convention,) was a mere proposal, without obligation or pretension to it.” “The people were at perfect liberty to accept or reject it; and their act was final.”—M‘Cullock vs. Maryland,—4 Wheaton 403—4.

The Supreme Court of the United States say:

“The intention of the instrument must prevail: this intention must be collected from its words.”—Ogden vs. Saunders,—12 Wheaton, 332.

“The intention of the legislature is to be searched for in the words which the legislature has employed to convey it.”—Schr. Paulina’s Cargo vs. United States,—7 Cranch, 60.

Judge Story, in giving an opinion upon the bankrupt act, replies as follows to an argument analogous to that, which is often drawn from the debates of the convention, in opposition to the language of the constitution itself. He says:

“At the threshold of the argument, we are met with the suggestion, that when the (Bankrupt) act was before Congress, the opposite doctrine was then maintained in the House of Representatives, and it was confidently stated, that no such jurisdiction was conferred by the act, as is now insisted on. What passes in Congress upon the discussion of a bill can hardly become a matter of strict judicial inquiry; and if it were, it could scarcely be affirmed, that the opinions of a few members, expressed either way, are to be considered as the judgment of the whole House, or even of a minority. But, in truth, little reliance can or ought to be placed upon such sources of interpretation of a statute. The questions can be, and rarely are, there debated upon strictly legal grounds, with a full mastery of the subject and of the just rules of interpretation. The arguments are generally of a mixed character, addressed by way of objection or of support, rather with a view to carry or defeat a bill, than with the strictness of a judicial decision. But if the House entertained one construction of the language of the bill, non constat, that the same opinion was entertained either by the Senate or by the President; and their opinions are certainly, in a matter of the sanction of laws, entitled to as great weight as the other branch. But in truth, courts of justice are not at liberty to look at considerations of this sort. We are bound to interpret the act as we find it, and to make such an interpretation as its language and its apparent objects require. We must take it to be true, that the legislature intend precisely what they say, and to the extent which the provisions of the act require, for the purpose of securing their just operation and effect. Any other course would deliver over the court to interminable doubts and difficulties; and we should be compelled to guess what was the law, from the loose commentaries of different debates, instead of the precise enactments of the statute. Nor have there been wanting illustrious instances of great minds, which, after they had, as legislators, or commentators, reposed upon a short and hasty opinion, have deliberately withdrawn from their first impressions, when they came upon the judgment seat to re-examine the statute or law in its full bearings.”—Mitchell vs. Great Works Milling and Manufacturing Company. Story’s Circuit Court Reports, Vol. 2, page 653.

If the intentions of legislatures, who are invested with the actual authority of prescribing laws, are of no consequence otherwise than as they are expressed in the language of their statutes, of how much less consequence are any unexpressed intentions of the framers of the constitution, who had no authority to establish a constitution, but only to draft one to be offered to the people for their voluntary adoption or rejection.

“Elliot’s Debates,” so often referred to, are, if possible, a more miserable authority than Mr. Madison’s notes. He seems to have picked up the most of them from the newspapers of the day, in which they were reported by nobody now probably knows whom. In his preface to his first volume, containing the debates in the Massachusetts and New York conventions, he says:

“In the compilation of this volume, care has been taken to search into contemporary publications, in order to make the work as perfect as possible; still, however, the editor is sensible, from the daily experience of newspaper reports of the present time, that the sentiments they contain may, in some instances, have been inaccurately taken down, and in others, probably too faintly sketched, fully to gratify the inquisitive politician.” He also speaks of them as “rescued from the ephemeral prints of that day, and now, for the first time, presented in a uniform and durable form.”

In the preface to his second volume, which is devoted to the Virginia convention, he says the debates were reported by an able stenographer, David Robertson; and then quotes the following from Mr. Wirt, in a note to the Life of Patrick Henry:

“From the skill and ability of the reporter, there can be no doubt that the substance of the debates, as well as their general course, are accurately preserved.”

In his preface to the third volume, embracing the North Carolina and Pennsylvania conventions, he says:

“The first of the two North Carolina conventions is contained in this volume; the second convention, it is believed, was neither systematically reported nor printed.” The debates in the Pennsylvania convention, that have been preserved, it appears, are on one side only; a search into the contemporary publications of the day, has been unsuccessful to furnish us with the other side of the question.”

In his preface to the fourth volume, he says:

“In compiling the opinions, on constitutional questions, delivered in Congress, by some of the most enlightened senators and representatives, the files of the New York and Philadelphia newspapers, from 1789 to 1800, had to be relied on; from the latter period to the present, the National Intelligencer is the authority consulted for the desired information.”

It is from such stuff as this, collected and published thirty-five and forty years after the constitution was adopted—stuff very suitable for constitutional dreams to be made of—that our courts and people now make their constitutional law, in preference to adopting the law of the constitution itself. In this way they manufacture law strong enough to bind three millions of men in slavery.

This principle would apply, as we have before seen, where the change was from the colonial to a state government. It would also apply to all cases where the change took place, under the constitution of the United States, from a territorial to a state government. It needs no argument to prove that all our territorial statutes that have purported to authorize slavery, were unconstitutional.

Art. 2, Sec. 1, Clause 5: “No person, except a natural born citizen, * * * shall be eligible to the office of President.”

CONTENTS OF PART SECOND.

• CHAPTER XIV.—THE DEFINITION OF LAW, page 137
• CHAPTER XV.—OUGHT JUDGES TO RESIGN THEIR SEATS? 147
• CHAPTER XVI.—“THE SUPREME POWER OF A STATE,” 153
• CHAPTER XVII.—RULES OF INTERPRETATION, 155
  • First Rule, 157
  • Second Rule, 161
  • Third Rule, 165
  • Fourth Rule, 168
  • Fifth Rule, 180
  • Sixth Rule, 182
  • Seventh Rule, 189
  • Eighth Rule, 196
  • Ninth Rule, 198
  • Tenth Rule, 199
  • Eleventh Rule, 200
  • Twelfth Rule, 200
  • Thirteenth Rule, 201
  • Fourteenth Rule, 204
  • Rules cited for Slavery, 205
  • First Rule cited for Slavery, 205
  • Second Rule cited for Slavery, 213
  • Third Rule cited for Slavery, 217
  • Fourth Rule cited for Slavery, 219
• CHAPTER XVIII.—SERVANTS COUNTED AS UNITS, 237
• CHAPTER XIX.—SLAVE REPRESENTATION, 238
• CHAPTER XX.—ALIENS COUNTED AS THREE FIFTHS, 242
• CHAPTER XXI.—WHY THE WORDS “FREE PERSONS” WERE USED, 247
• CHAPTER XXII.—“ALL OTHER PERSONS,” 257
• CHAPTER XXL—ADDITIONAL ARGUMENTS OF THE WORD “FREE,” 264
• CHAPTER XXIV.—POWER OF THE GENERAL GOVERNMENT OVER SLAVERY, 269
• APPENDIX.
  • A.Fugitive Slavis, 279
  • B.Suggestions to Abolitionists, 290

CHAPTER XIV.: THE DEFINITION OF LAW.

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 Edition: current; Page: [138] 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 Edition: current; Page: [139] 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 Edition: current; Page: [140] 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 Edition: current; Page: [142] 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 Edition: current; Page: [144] 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 Edition: current; Page: [145] 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 Edition: current; Page: [146] 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.*

CHAPTER XV.: OUGHT JUDGES TO RESIGN THEIR SEATS?

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 Edition: current; Page: [148] are morally void; the question arises, whether a judge, who has actually sworn to support an unjust constitution, be morally bound Edition: current; Page: [149] 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 Edition: current; Page: [151] 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.

CHAPTER XVI.: “THE SUPREME POWER OF A STATE.”

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, Edition: current; Page: [154] 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.*

CHAPTER XVII.: RULES OF INTERPRETATION.*

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 Edition: current; Page: [156] 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, Edition: current; Page: [157] 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.

CHAPTER XVIII.: SERVANTS COUNTED AS UNITS.

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 Edition: current; Page: [238] “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.

CHAPTER XIX.: SLAVE REPRESENTATION.

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 Edition: current; Page: [239] 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, Edition: current; Page: [242] 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.

CHAPTER XX.: WHY ALIENS ARE COUNTED AS “THREE FIFTHS.”

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 Edition: current; Page: [243] 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, Edition: current; Page: [244] 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 Edition: current; Page: [245] 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, Edition: current; Page: [246] 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 Edition: current; Page: [247] 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.

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

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

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

It was important that the first of these classes should be described by some technical term; because technical terms are more definite, precise, and certain, in their meaning, than others. And in this case, where representation and taxation were concerned, the greatest precision that language admitted of was requisite. Now, I think, there was no other word in the language that would Edition: current; Page: [248] 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, Edition: current; Page: [249] 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; Edition: current; Page: [250] 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 Edition: current; Page: [251] 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 Edition: current; Page: [252] 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 Edition: current; Page: [254] 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, Edition: current; Page: [255] 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 Edition: current; Page: [256] 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 Edition: current; Page: [257] 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.

CHAPTER XXII.: “ALL OTHER PERSONS.”

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

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

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

But whether the words “all other persons” include slaves, or unnaturalized persons, there was still another reason for the use of the words, “all other persons,” in preference either to the Edition: current; Page: [258] word slaves, or the word aliens. That reason was, that the three fifths class was to include more than one kind of persons, whether that one kind were slaves or unnaturalized persons. “Indians not taxed” were to be included in the same count, and, therefore, neither the word slaves, nor the word aliens, would have correctly described all the persons intended.

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

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

The clause reads as follows:—

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

To state the question is nearly enough to answer it, for it is absurd to suppose there is any class of “the people of the United States” who are not to be counted at all. “Indians not taxed,” (that is, not taxed directly, for all Indians are taxed indirectly,) are as much citizens of the United States as any other persons, Edition: current; Page: [259] 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 Edition: current; Page: [260] 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 Edition: current; Page: [261] 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 Edition: current; Page: [262] 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 Edition: current; Page: [263] 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 Edition: current; Page: [264] 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.†

CHAPTER XXIII.: ADDITIONAL ARGUMENTS ON THE WORD “FREE.”

CHAPTER XXIV.: POWER OF THE GENERAL GOVERNMENT OVER SLAVERY.

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 Edition: current; Page: [271] 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 Edition: current; Page: [272] 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 Edition: current; Page: [273] 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 Edition: current; Page: [275] 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 Edition: current; Page: [276] 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 Edition: current; Page: [277] 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.

NEITHER THE CONSTITUTION, NOR EITHER OF THE ACTS OF CONGRESS OF 1793 OR 1850, REQUIRES THE SURRENDER OF FUGITIVE SLAVES.

In the preceding chapters it has been admitted, for the sake of the argument, that the constitution, and 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 Edition: current; Page: [280] 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 Edition: current; Page: [281] 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:

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 Edition: current; Page: [282] 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:

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:

Also, he says:

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 Edition: current; Page: [285] 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 Edition: current; Page: [287] 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 recognitions Edition: current; Page: [288] of slavery that are now to be found in any of the state constitutions, have been inserted since the adoption of the constitution of the United States.

There was, therefore, no legal or constitutional slavery, in any of the states, up to the time of the formation and adoption of the constitution of the United States, in 1787 and 1789.

There being no legal slavery in the country at the adoption of the constitution of the United States, all “the people of the United States” 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 Edition: current; Page: [289] 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.

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.”

Jones on Bailments, 133.

Kent, describing the difficulty of construing the written law, says:—

“Such is the imperfection of language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms, as to secure it from ambiguous expressions, and from all doubts and criticisms upon its meaning.”—Kent, 460.

This condemnation of written laws must, of course, be understood as applying only to cases where principles and rights are involved, and not as condemning any governmental arrangements, or instrumentalities, that are consistent with natural right, and which must be agreed upon for the purpose of carrying natural law into effect. These things may be varied, as expediency may dictate, so only that they be allowed to infringe no principle of justice. And they must, of course, be written, because they do not exist as fixed principles, or laws in nature.

The objections made to natural law, on the ground of obscurity, are wholly unfounded. It is true, it must be learned, like any other science, but it is equally true, that it is very easily learned. Although as illimitable in its applications as the infinite relations of men to each other, it is, nevertheless, made up of simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. It is the science of justice,—and almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn. Men living in contact with each other, and having intercourse together, cannot avoid learning natural law, to a very great extent, even if they would. The dealings of men with men, their separate possessions, and their individual wants, are continually forcing upon their minds the questions,—Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions, which, in regard to the great mass of cases, are answered alike by the human mind everywhere.

Children learn many principles of natural law at a very early age. For example: they learn that when one child has picked up an apple or a flower, it is his, and that his associates must not take it from him against his will. They also learn that if he voluntarily exchange his apple or flower with a playmate, for some other article of desire, he has thereby surrendered his right to it, and must not reclaim it. These are fundamental principles of natural law, which govern most of the greatest interests of individuals and society; yet, children learn them earlier than they learn that three and three are six, or five and five, ten. Talk of enacting natural law by statute, that it may be known! It would hardly be extravagant to say, that, in nine cases in ten, men learn it before they have learned the language by which we describe it. Nevertheless, numerous treatises are written on it, as on other sciences. The decisions of courts, containing their opinions upon the almost endless variety of cases that have come before them, are reported; and these reports are condensed, codified, and digested, so as to give, in a small compass, the facts, and the opinions of the courts as to the law resulting from them. And these treatises, codes, and digests are open to be read of all men. And a man has the same excuse for being ignorant of arithmetic, or any other science, that he has for being ignorant of natural law. He can learn it as well, if he will, without its being enacted, as he could if it were.

If our governments would but themselves adhere to natural law, there would be little occasion to complain of the ignorance of the people in regard to it. The popular ignorance of law is attributable mainly to the innovations that have been made upon natural law by legislation; whereby our system has become an incongruous mixture of natural and statute law, with no uniform principle pervading it. To learn such a system,—if system it can be called, and if learned it can be,—is a matter of very similar difficulty to what it would be to learn a system of mathematics, which should consist of the mathematics of nature, interspersed with such other mathematics as might be created by legislation, in violation of all the natural principles of numbers and quantities.

But whether the difficulties of learning natural law be greater or less than here represented, they exist in the nature of things, and cannot be removed. Legislation, instead of removing, only increases them. This it does by innovating upon natural truths and principles, and introducing jargon and contradiction, in the place of order, analogy, consistency, and uniformity.

Further than this; legislation does not even profess to remove the obscurity of natural law. That is no part of its object. It only professes to substitute something arbitrary in the place of natural law. Legislators generally have the sense to see that legislation will not make natural law any clearer than it is.

Neither is it the object of legislation to establish the authority of natural law. Legislators have the sense to see that they can add nothing to the authority of natural law, and that it will stand on its own authority, unless they overturn it.

The whole object of legislation, excepting that legislation which merely makes regulations, and provides instrumentalities for carrying other laws into effect, is to overturn natural law, and substitute for it the arbitrary will of power. In other words, the whole object of it is to destroy men’s rights. At least, such is its only effect; and its design must be inferred from its effect. Taking all the statutes in the country, there probably is not one in a hundred,—except the auxiliary ones just mentioned,—that does not violate natural law; that does not invade some right or other.

Yet, the advocates of arbitrary legislation are continually practising the fraud of pretending, that unless the legislature make the laws, the laws will not be known. The whole object of the fraud is to secure to the government the authority of making laws that never ought to be known.

Kent says, and truly, that “A great proportion of the rules and maxims, which constitute the immeuse code of the common law, grew into use by gradual adoption, and received the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and cultivated reason to particular cases.” 1 Kent, 470.

That is, these decisions are unauthorized, on the supposition that justice is not necessarily law, unless the general requirement, made upon courts by some of our constitutions, that they “administer right and justice,” or some other requirement contained in them equivalent to that, be considered as arbitrarily prescribing these principles as law, and thus authorizing the decisions. But if these requirements, instead of being regarded, as they doubtless ought to be, as an acknowledgment that “right and justice” are law of themselves, be considered only as arbitrarily prescribing them as law, it is at least an admission that the simple words “right and justice” express, with legal accuracy, an infinite variety of fixed, definite, and certain principles, that are properly applicable, as law, to the relations of man with man. But wherever a constitution makes no such requirement, the decisions are illegal, as being made without authority, unless justice itself be law.

We add the following authorities to those given in the note to chapter first, on the true nature and definition of law:—Cicero says, “There is a true law, a right reason, conformable to nature, universal, unchangeable, eternal. * * * * This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. Neither the senate nor the people can give us any dispensation for not obeying this universal law of justice. * * * * It is not one thing at Rome, and another at Athens; one thing to-day, and another to-morrow; but in all times and nations, this universal law must forever reign, eternal and imperishable. * * * * He who obeys it not, flies from himself, and does violence to the very nature of man.”—Cicero’s Republic, Barham’s Translation, B. 3, p. 270.

“This justice is the very foundation of lawful government in political constitutions.”—Same, B. 3, p. 272.

“To secure to the citizens the benefits of an honest and happy life, is the grand object of all political associations.”—Same, B. 4, p. 283.

“There is no employment so essentially royal as the exposition of equity, which comprises the true meaning of all laws.”—Same, B. 5, p. 290.

“According to the Greeks, the name of law implies an equitable distribution of goods; according to the Romans, an equitable discrimination between good and evil. The true definition of law should, however, include both these characteristics. And this being granted as an almost self-evident proposition, the origin of justice is to be sought in the divine law of eternal and immutable morality.”—Cicero’s Treatise on the Laws, Barham’s Translation, B. 1, p. 37.

“Of all the questions which our philosophers argue, there is none which it is more important thoroughly to understand than this,—that man is born for justice, and that law and equity are not a mere establishment of opinion, but an institution of nature.”—Same, B. 1, p. 45.

“Nature hath not merely given us reason, but right reason, and, consequently, that law, which is nothing else than right reason, enjoining what is good, and forbidding what is evil.

“Now, if nature hath given us law, she hath also given us justice; for, as she has bestowed reason on all, she has equally bestowed the sense of justice on all.”—Same, B. 1, p. 48.

“Nature herself is the foundation of justice.”—Same, B. 1, p. 49.

“It is an absurd extravagance, in some philosophers, to assert that all things are necessarily just, which are established by the civil laws and the institutions of the people. Are, then, the laws of tyrants just, simply because they are laws? If the thirty tyrants of Athens imposed certain laws on the Athenians, and if these Athenians were delighted with these tyrannical laws, are we, therefore, bound to consider these laws as just? For my own part, I do not think such laws deserve any greater estimation than that passed during our own interregnum, which ordained that the dictator should be empowered to put to death with impunity, whatever citizens he pleased, without hearing them in their own defence.

“There can be but one essential justice which cements society, and one law which establishes this justice. This law is right reason, which is the true rule of all commandments and prohibitions. Whoever neglects this law, whether written or unwritten, is necessarily unjust and wicked.

“But if justice consist in submission to written laws and customs, and if, as the Epicureans persist in affirming, everything must be measured by utility alone, he who wishes to find an occasion of breaking such laws and customs, will be sure to discover it. So that real justice remains powerless if not supported by nature, and this pretended justice is overturned by that very utility which they call its foundation.”—Same, B. 1, p. 55-6.

“If nature does not ratify law, all virtues lose their sway.”—Same, B. 1, p. 55.

“If the will of the people, the decrees of the senate, the adjudications of magistrates, were sufficient to establish justice, the only question would be how to gain suffrages, and to win over the votes of the majority, in order that corruption and spoliation, and the falsification of wills, should become lawful. But if the opinions and suffrages of foolish men had sufficient weight to outbalance the nature of things, might they not determine among them, that what is essentially bad and pernicious should henceforth pass for good and beneficial? Or why should not a law, able to enforce injustice, take the place of equity? Would not this same law be able to change evil into good, and good into evil?

“As far as we are concerned, we have no other rule capable of distinguishing between a good or a had law, than our natural conscience and reason. These, however, enable us to separate justice from injustice, and to discriminate between the honest and the scandalous. For common sense has impressed in our minds the first principles of things, and has given us a general acquaintance with them, by which we connect with virtue every honorable and excellent quality, and with vice all that is abominable and disgraceful.

“Now we must entirely take leave of our senses, ere we can suppose that law and justice have no foundation in nature, and rely merely on the transient opinions of men.”—Same, B. 1, p. 56-7.

“Whatever is just is always the true law; nor can this true law either be originated or abrogated by any written enactments.”—Same, B. 2, p. 83.

“As the divine mind, or reason, is the supreme law, so it exists in the mind of the sage, so far as it can be perfected in man. With respect to civil laws, which differ in all ages and nations, the name of law belongs to them not so much by right as by the favor of the people. For every law which deserves the name of a law ought to be morally good and laudable, as we might demonstrate by the following arguments. It is clear, that laws were originally made for the security of the people, for the preservation of cities, for the peace and benefit of society. Doubtless, the first legislators persuaded the people that they would write and publish such laws only as should conduce to the general morality and happiness, if they would receive and obey them. Such were the regulations, which being settled and sanctioned, they justly entitled laws. From which, we may reasonably conclude, that those who made unjustifiable and pernicious enactments for the people, counteracted their own promises and professions, and established anything rather than laws, properly so called, since it is evident that the very signification of the word law comprehends the essence and energy of justice and equity.”—Same, B. 2, p. 83-4.

“Marcus. If then, in the majority of nations, many pernicious and mischievous enactments are made, as far removed from the law of justice we have defined as the mutual engagements of robbers, are we bound to call them laws? For as we cannot call the recipes of ignorant empirics, who give poisons instead of medicines, the prescriptions of a physician, we cannot call that the true law of the people, whatever be its name, if it enjoins what is injurious, let the people receive it as they will. For law is the just distinction between right and wrong, conformable to nature, the original and principal regulator of all things, by which the laws of men should be measured, whether they punish the guilty, or protect the innocent.

“Quintus. I quite agree with you, and think that no law but that of justice should either be proclaimed as a law, or enforced as a law.

“Marcus. Then you regard as nullable and voidable, the laws of Titius and Apulcius, because they are unjust.

“Quintus. You may say the same of the laws of Livius.

“Marcus. You are right; and so much the more, since a single vote of the senate would be sufficient to abrogate them in an instant. But that law of justice which I have explained can never be rendered obsolete or inefficacious.

“Quintus. And, therefore, you require those laws of justice the more ardently, because they would be durable and permanent, and would not require those perpetual alterations which all injudicious enactments demand.”—Same, B. 2, p. 85-6.

“Long before positive laws were instituted, the moral relations of justice were absolute and universal.”—Montesquieu.

“All the tranquillity, the happiness, and security of the human race, rests on justice; on the obligation of paying a regard to the rights of others.”—Vattel, B. 2, chap. 12, sec. 163.

“Justice is the basis of all society.”—Vattel, B. 1, chap. 5, sec. 63.

Bacon says, “There are in nature certain fountains of justice, whence all civil laws are derived but as streams.”—Bacon’s Tract on Universal Justice.

“Let no man weakly conceive that just laws, and true policy, have any antipathy, for they are like the spirits and sinews, that one moves with the other.”—Bacon’s Essay on Judicature.

“Justice is the end of government. It is the end of civil society.”—Federalist, No. 51.

About half our state constitutions specially require of our courts that they administer “right and justice” to every man.

The national constitution enumerates among its objects, the establishment of “justice,” and the security of “liberty.”

Judge Story says, “To establish justice must forever be one of the greatest ends of every wise government; and even in arbitrary governments it must, to a great extent, be practised, at least in respect to private persons, as the only security against rebellion, private vengeance, and popular cruelty. But in a free government, it lies at the very basis of all its institutions. Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected.”—1 Story’s Com. on Const., 463.

“It appears in our books, that, in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void; for when an act of parliament is against common right or reason, the common law will control it, and adjudge such act to be void.”—Coke, in Bonham’s case; 4 Coke’s Rep., part 8, p. 118.

Kent also, although he holds that, in England, “the will of the legislature is the supreme law of the land, and demands perfect obedience,” yet says: “But while we admit this conclusion of the English law, we cannot but admire the intrepidity and powerful sense of justice which led Lord Coke, when Chief Justice of the King’s bench, to declare, as he did in Doctor Bonham’s case, that the common law doth control acts of parliament, and adjudges them void when against common right and reason. The same sense of justice and freedom of opinion led Lord Chief Justice Hobart, in Day vs. Savage, to insist that an act of parliament, made against natural equity, as to make a man judge in his own case, was void; and induced Lord Chief Justice Holt to say, in the case of the City of London vs. Wood, that the observation of Lord Coke was not extravagant, but was a very reasonable and true saying.”—1 Kent, 448.

“A treaty made from an unjust and dishonest intention is absolutely null, nobody having a right to engage to do things contrary to the law of nature.”—Vattel, B. 2, chap. 12, sec. 161.

That definition which makes law to be “a rule of civil conduct, prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear,” is manifestly a false definition, inasmuch as it does not include the law of nations. The law of nations has never been “prescribed” by any “supreme power,” that regards the nations as its “subjects,” and rules over them as other governments rule over individuals. Nations acknowledge no such supreme power. The law of nations is, in reality, nothing else than the law of nature, applicable to nations. Yet it is a law which all civilized nations acknowledge, and is all that preserves the peace of nations; and no definition of law that excludes so important a portion of the law of the world, can reasonably be for a moment regarded as true.

The objection stated in the text, to our present system of legislation, will not be obviated in principle, by assuming that the male adults are natural guardians of women and children, as they undoubtedly are of children, and perhaps, also, in some sense, of women. But if they are their natural guardians, they are their guardians only for the purpose of protecting their rights; not for the purpose of taking them away. Nevertheless, suppose, for the sake of the argument, that the women and children are really and rightfully represented through the male adults, the objection will still remain that the legislators are chosen by a bare majority of the voters, (representing a bare majority of the people;) and then, a bare majority of the legislators chosen constitute a quorum; and a bare majority of this quorum make the laws. So that, even then, the actual law-makers represent but little more than one eighth of the people.

If the principle is to be acted upon, that the majority have a right to rule arbitrarily, there is no legitimate way of carrying out that principle, but by requiring, either that a majority of the whole people, (or of the voters,) should vote in favor of every separate law, or by requiring entire unanimity in the representative bodies, who actually represent only a majority of the people.

But the principle is utterly false, that a majority, however large, have any right to rule so as to violate the natural rights of any single individual. It is as unjust for millions of men to murder, ravish, enslave, rob, or otherwise injure a single individual, as it is for another single individual to do it.

Two things are necessary to a good lawyer. 1. A knowledge of natural law. This knowledge, indispensable to the peace and security of mankind, in their dealings, intercourse, and neighborhood with each other, is possessed, in some good measure, by mankind at large. 2. A knowledge of the rules of interpreting the written law. These are few, simple, natural, reasonable, just, and easily learned. These two branches of knowledge comprise substantially all the science, and all “the reason,” there are in the law. I hope these considerations, in addition to that of understanding the constitution, may induce all, who read any portion of this book, to read with patience this chapter on the rules of interpretation, however tedious it may be.

In “The Unconstitutionality of Slavery,” the word laws, in this rule, was printed law, through my inadvertence in copying the rule. The error was not discovered until it was pointed out by Wendell Phillips. I am obliged to him for the correction. A case might he supposed, in which the difference would be important. But I am not aware that the correction affects any of the arguments on which the rule has thus far been, or will hereafter he, brought to bear; because, in construing the constitution by this rule, “the general system of the laws” must be presumed to be “the general system of the laws” authorized by the constitution itself, and not “the general system of the laws” previously prevailing in the country, if the two systems should happen to differ. The constitution being the supreme law, anything in the constitutions or laws of the states to the contrary notwithstanding, those constitutions and laws must be construed with reference to it; instead of its being construed with reference to them, whenever the two may appear to conflict.

Mr. Phillips, however, seems to think the difference important to this discussion; because he says “the general system of the law might refer to the general system of law, as a science;” whereas “the general system of the laws clearly relates to the general spirit of the laws of this nation, which is quite a different thing.” But he here assumes the very point in dispute, viz., that “the general spirit of the constitutional laws of this nation, (which are, in reality, its only laws,) are a very different thing” from “the general system of law, as a science.” So far as they relate to slavery, we claim that all our constitutional laws are perfectly accordant with “the general system of law, as a science,” and this is the question to be determined.

That “the general system of the laws,” authorized by the constitution, and relating to other subjects than slavery, is, for the most part, at least, if not entirely, accordant with “law, as a science,” Mr. Phillips will probably not deny, whatever he may think of those it authorizes in relation to slavery. But the rule of the court forbids that, in the matter of slavery, any construction of the constitution be adopted, at variance with “the general system of the laws” authorized by the constitution, on all other subjects, unless such intention “he expressed with irresistible clearness.” “The general system of the laws,” authorized by the constitution, on all other subjects than slavery, is a very important guide for the interpretation of those clauses that have been claimed for slavery. If this guide be followed, it extinguishes all pretended authority for slavery—instead of supporting it. as Mr. Phillips’ remark would imply.

The Supreme Court of the United States say: “The intention of the instrument must prevail; this intention must be collected from its words.”—12 Wheaton, 332.

“The intention of the legislature is to be searched for in the words which the legislature has employed to convey it.”—7 Cranch, 60.

Story says, “We must take it to be true, that the legislature intend precisely what they say.”—2 Story’s Circuit Court Rep., 653.

Rutherforth says, “A promise, or a contract, or a will, gives us a right to whatever the promiser, the contractor, or the testator, designed or intended to make ours. But his design or intention, if it is considered merely as an act of his mind, cannot be known to any one besides himself. When, therefore, we speak of his design or intention as the measure of our claim, we must necessarily be understood to mean the design or intention which he has made known or expressed by some outward mark; because, a design or intention which does not appear, can have no more effect, or can no more produce a claim, than a design or intention which does not exist.

“In like manner, the obligations that are produced by the civil laws of our country arise from the intention of the legislator; not merely as this intention is an act of the mind, but as it is declared or expressed by some outward sign or mark, which makes it known to us. For the intention of the legislator, whilst he keeps it to himself, produces no effect, and is of no more account, than if he had no such intention. Where we have no knowledge, we can be under no obligation. We cannot, therefore, be obliged to comply with his will, where we do not know what his will is. And we can no otherwise know what his will is, than by means of some outward sign or mark, by which this will is expressed or declared.”—Rutherforth, B. 2, chap. 7, p. 307-8.

This rule, that forbids us to go beyond the words of the law, must not be understood as conflicting with the one that allows us, in certain cases, to go out of an instrument to find the meaning of the words used in the instrument. We may, in certain cases, (not in all,) and under certain limitations, as will hereafter be explained, go out of an instrument to find the meaning of its words; but we can never go beyond their meaning, when found.

Kent says, these rules “have been accumulated by the experience, and ratified by the approbation, of ages.”—1 Kent, 461.

Vattel says, “The interpretation of every act, and of every treaty, ought to be made according to certain rules proper to determine the sense of them, such as the parties concerned must naturally have understood when the act was prepared and accepted.

“As these rules are founded on right reason, and are consequently approved and prescribed by the law of nature, every man, every sovereign, is obliged to admit and follow them. If princes were to acknowledge no rules that determined the sense in which the expressions ought to be taken, treaties would be only empty words; nothing could be agreed upon with security, and it would be almost ridiculous to place any dependence on the effect of conventions.”—Vattel, B. 2, chap. 17, sec. 268.

Blackstone says, “As to the subject matter, words are always to be understood as having regard thereto.”—1 Blackstone, 60.

“We ought always to give to expressions the sense most suitable to the subject, or to the matter, to which they relate.”—Vattel, B. 2., chap. 17, sec. 280.

Other authorities on this point are given in the note at the end of this chapter.

It was, for example, the commonness, or rather the uniformity, with which the word “free” had been used—up to the time the constitution was adopted—to describe persons possessed of political and other legal franchises, as distinguished from persons not possessed of the same franchises, that made the word “free” a technical one in the law.

“Terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science.”—1 Blackstone, 59.

“When technical words are used, they are to be understood in their technical sense and meaning, unless the contrary clearly appears.”—9 Pickering, 514.

“The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense.”—1 Kent, 461.

Lord Ellenborough says, “An agreement is to be construed according to its sense and meaning, as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject matter, as by the known usage of trade or the like, acquired a peculiar sense, distinct from the popular sense of the same words; or unless the context evidently points out that they must, in the particular instance, and in order to effect the immediate intention of the parties to that contract, be understood in some other special and peculiar sense.”—4 East, 135; cited in Chitty on Contracts, 80.

Chitty adds, “The same rule applies to the construction of acts of parliament,” and cites several authorities.

“In the enactment of laws, when terms of art, or peculiar phrases, are made use of, it must be supposed that the legislature have in view the subject matter about which such terms or phrases are commonly employed.”—1 Pickering, 261.

“If a statute make use of a word, the meaning of which is well known at the common law, the word shall be understood in the same sense it was understood at the common law.”—Bacon’s Abridg. Stat., I., 29.

“Technical terms, or terms proper to the arts and sciences, ought commonly to be interpreted according to the definition given of them by the masters of the art, the person versed in the knowledge of the art or science to which the term belongs. I say commonly; for this rule is not so absolute, that we cannot, or even ought not, to deviate from it, when we have good reasons to do it; as, for instance, if it was proved that he who speaks in a treaty, or in any other public piece, did not understand the art or science from which he borrowed the term, that he knows not its force as a technical word: that he has employed it in a vulgar sense, &c.”—Vattel, B. 2, ch. 17, sec. 276.

“In things favorable,” (“things favorable” he defines to mean “things useful and salutary to human society,”) “the terms of art ought to be taken in the fullest extent they are capable of; not only according to common use, but also as technical terms, if he who speaks understands the art to which those terms belong, or if he conducts himself by the advice of men who understand that art.

“But we ought not from this single reason, that a thing is favorable, to take the terms in an improper signification; this is only allowable to be done, to avoid absurdity, injustice, or the nullity of the act, as is practised on every subject. For we ought to take the terms of an act in their proper sense, conformable to custom, at least, if we have not very strong reasons for deviating from it.”—Vattel, B. 2, ch. 17, sec. 307.

“Where technical words are used, the technical meaning is to be applied to them, unless it is repelled by the context. But the same word often possesses a technical and a common sense. In such a case the latter is to be preferred, unless some attendant circumstance points clearly to the former.”—1 Story’s Comm. on Const., 438.

It will be observed that every one of these authorities, except the single one from Story, gives the preference to the technical meaning, over any of the other meanings which a word may have. The latter branch of Story’s rule gives the preference to the other meaning over the technical one.

Admitting, for the sake of the argument, that the latter branch of Story’s rule is correct, still the meaning of the word “free,” in the constitution, is not thereby altered; because his rule admits that if “some attendant circumstance points clearly to the technical meaning,” that meaning is to be adopted. Now every “attendant circumstance” that can legally be taken into consideration, “points clearly to the technical meaning”—and why? Because that meaning alone is consistent with justice, appropriate to the subject matter of the instrument, consistent with the idea that all the parties to the instrument could have reasonably agreed to it, (an essential point, as will hereafter be seen,) consistent with all the general provisions of the instrument. If the other meaning be adopted, all the general provisions of the instrument are either contradicted outright, or have to be taken subject to limitations and exceptions which are nowhere expressed, and which would not only exclude one sixth of “the people of the United States” from the operation of the constitution, established in their name, and for their benefit, but would actually sanction the greatest wrongs against them.

The result, then, is, not merely that “some attendant circumstance,” (although the rule admits that that would be sufficient to turn the scale,) but that every attendant circumstance, points to the technical meaning as the true one.

There is, also, in the same clause with the word “free,” one attendant circumstance which points clearly to the technical meaning; and that is, that “all other persons” than the free, are to be represented and taxed as three fifths units. Now there is no propriety in representing or taxing slaves at all, as persons; but there is a special propriety in representing and taxing aliens as three fifths units, as will more fully appear hereafter.

But, in point of fact, Story’s rule destroys itself, for the two branches of it flatly contradict each other. The first branch says, that “where technical words are used, the technical meaning is to be applied to them, unless it is repelled by the context.” The second branch says, that “the same word often possesses a technical and a common sense. In such case the latter is to be preferred, unless some attendant circumstance points clearly to the former.”

It might be thought, on a careless reading of this rule, that there was no contradiction in it; that the first branch of it referred to a case where a word had only one meaning, and that a technical one; and that the latter branch referred to a case where a word had two or more meanings. But, in reality, there is probably not a single technical word in the language, that has not one or more other meanings beside the technical one; and it seems impossible there should be such a word, because the very meaning of a technical word is a word which, in one profession, art, or trade, is used in a somewhat different sense from what it is out of that profession, art, or trade. But be this as it may, it is evident that the first branch of the rule as much refers to a word having two meanings, as does the latter branch of it; for it says “the technical meaning is to be applied, unless it be repelled by the context.” What is the inference from this proviso? Why, plainly, that if the technical meaning “be repelled by the context,” the other meaning is to be adopted. This of course implies that the word has another meaning which may be adopted if the context require it.

If, then, there are two meanings to the words in each case, the two branches of this rule flatly contradict each other.

The first branch of the rule is given by Story, and is sustained by all the other authorities cited. The second branch is Story’s own, sustained by nobody. The reader will judge which is sustained by reason.

But, in truth, Story has himself laid down the true rule more accurately in another place, as follows:

“Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design, of the instrument.”—1 Comm. on Const., 387.

One other authority, which has fallen under my eye, ought to be noticed, lest it be misunderstood. It is this:

“The language of a statute is not to be construed according to technical rules, unless such be the apparent meaning of the legislature.”—14 Mass. Rep., 92.

This language, taken independently of the context, would convey the idea that the adoption of the technical meaning was a matter of indifference; or perhaps even that another meaning was rather to be preferred to the technical one.

But it will be seen on examining the report from which this extract is taken, that the court did not at all intend to deny, but on the contrary to admit, that the general rule was, that the technical meaning was to be preferred; and that they only intended to assert that the rule in favor of the technical meaning was not so imperative that it could not be departed from in a case where “manifest justice” would be promoted by the departure; for they plead, as a justification for departing from the technical meaning, that in that particular case, “manifest justice” will be subserved by a different construction.

Thus have been presented all the authorities on this point, that happen now to be within my knowledge. Many more of the same kind might doubtless be found. I am aware of no contrary one, unless the single one cited from Story be so esteemed.

The conclusion, both from reason and authority, evidently is, that the technical meaning is the preferable one in all cases, except where justice, or some other legal object, will be promoted by adopting some other.

Vattel says, “Languages vary incessantly, and the signification and force of words change with time. When an ancient act is to be interpreted, we should know the common use of the terms at the time when it was written.”—B. 2, ch. 17, sec. 272.

He also says, “In the interpretation of treaties, pacts, and promises, we ought not to deviate from the common use of language, at least, if we have not very strong reasons for it.”—Same sec.

Contracts made by persons mentally incompetent to make reasonable contracts, are not “obligatory.”

Although the greatest discretion that is within the limits of reason, is allowed to parties in making contracts, yet contracts manifestly unreasonable are not held obligatory. And all contracts are unreasonable that purport to surrender one’s natural rights. Also, all contracts that purport to surrender any valuable acquired rights, as property, for example, without any equivalent, or reasonable motive.

Vattel says, “When the subject relates to things favorable”—(in sec. 302, he defines “things favorable” to be things “useful and salutary to human society,”)—“we ought to give the terms all the extent they are capable of in common use; and if a term has many significations, the most extensive ought to be preferred.”—B. 2, ch. 17, sec. 307.

“In relation to things favorable, the most extensive signification of the terms is more agreeable to equity than their confined signification.”—Same.

“We should, in relation to things odious,”—(in sec. 302, he defines “as odious, everything that, in its own nature, is rather hurtful than of use to the human race,”)—“take the terms in the most confined sense, and even, to a certain degree, may admit the figurative, to remove the burdensome consequences of the proper and literal sense, or what it contains that is odious.”—Same, sec. 308.

Story says, “Who, then, are the parties to this contract? * * * Let the instrument answer for itself. The people of the United States are the parties to the constitution.”—1 Story’s Comm. on Const., p. 355.

The supreme court of the United States says, “The government (of the U. S.) proceeds directly from the people; Is ‘ordained and established’ in the name of the people.”—4 Wheaton, 403.

“The government of the Union is, emphatically and truly, a government of the people; and in form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”—4 Wheaton, 404, 405.

“The constitution of the United States was ordained and established, not by the United States in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States.”—1 Wheaton, 324.

Story, commenting upon the words “We the people of the United States,” says, “We have the strongest assurances that this preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government. The obvious object was to substitute a government of the people for a confederacy of states.”—1 Comm., p. 446.

Also, “The convention determined that the fahric of American empire ought to rest, and should rest, on the solid basis of the consent of the people. The streams of national power ought to flow, and should flow, immediately from the highes original fountain of all legitimate authority. * * * And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and not the act of the states; and that it bound the latter as subordinate to the people.”—1 Story’s Comm., p. 447.

Kent says, “The government of the United States was erected by the free voice and the joint will of the people of America, for their common defence and general welfare.”—1 Kent, 189.

Chief Justice Jay said, “Every state constitution is a compact, made by and between the citizens of the state to govern themselves in a certain manner; and the constitution of the United States is likewise a compact, made by the people of the United States to govern themselves, as to general objects, in a certain manner.”—2 Dallas, 419; cited by Story, 1 Comm., p. 317.

Mr. Webster says, “It is the people’s constitution, the people’s government; made for the people; made by the people; and answerable to the people. The people of the United States have declared that this constitution shall be the supreme law. We must either admit the proposition, or dispute their authority. * * * We are all agents of the same supreme power, the people. The general government and the state governments derive their authority from the same source.”—Webster’s Speeches, vol. 1, p. 410.

Also, “I hold it to be a popular government, erected by the people; those who administer it, responsible to the people; and itself capable of being amended and modified, just as the people choose it should be. It is as popular, just as truly emanating from the people, as the state governments. It is created for one purpose; the state governments for another. It has its own powers; they have theirs.”—Same, p. 418.

Also, “This government is the independent offspring of the popular will.”—Same, 419.

If the constitution were not established by “the people,” there is no information given in the constitution, as to whom it was established by. We must, of necessity, therefore, accept its own declaration, that it was established by the people. And if we accept its declaration that it was established by “the people,” we must also accept its virtual declaration that it was established by the whole people, for it gives no information of its being established by one portion of the people, any more than by another. No separation can therefore be made between different portions of the people.

Page 62, Second Edition.

By Wendell Phillips.

Story says, “The importance of examining the preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs which are to be remedied, and the objects which are to be accomplished by the provisions of the statute. We find it laid down in some of our earliest authorities in the common law, and civilians are accustomed to a similar expression, cessante legis præmio, cessat et ipsa lex. (The preamble of the law ceasing, the law itself also ceases.) Probably it has a foundation in the exposition of every code of written law, from the universal principle of interpretation, that the will and intention of the legislature is to be regarded and followed. It is properly resorted to where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an absurdity, or to a direct overthrow of the intention expressed in the preamble.

“There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as expressed in the preamble. And accordingly we find that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions.”—1 Story’s Comm. on Const., p. 443-4.

Story also says, “Its true office is to expound the nature, and extent, and application of the powers actually conferred by the constitution, and not substantively to create them.”—Same, 445.

“Though the preamble cannot control the enacting part of a statute which is expressed in clear and unambiguous terms, yet, if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it.”—7 Bacon’s Abr., 435, note. 4 Term Rep., 793. 13 Vesey, 36. 15 Johnson, N. Y. Rep., 116.

“A statute made pro bono publico (for the public good) shall be construed in such manner that it may as far as possible attain the end proposed.”—7 Bacon’s Abr., 461.

The constitution of the United States avows itself to be established for the public good—that is, for the good of “the people of the United States”—to establish justice and secure the blessings of liberty to themselves and their posterity. It must of course “be construed in such manner that it may, as far as possible, attain that end.”

Story says, “Was it not framed for the good of the people, and by the people?”—1 Story’s Comm., 394.

Chief Justice Jay dwells at length upon the authority of the preamble, as a guide for the interpretation of the constitution.—2 Dallas, 419. Also Justice Story, in his Commentaries on the Constitution, vol. 1, book 3, ch. 6.

2 Cranch, 64.

The Supreme Court of Mississippi say, referring to the claim of freedom, set up before it, “Is it not an unquestioned rule that, in matters of doubt, courts must lean in favorem vitæ et libertatis?” (in favor of life and liberty.)—Harvey vs. Decker, Walker’s Mississippi Reports, 36.

I cite this authority from Mr. Chase’s argument in the Van Zandt case.

This rule is fairly applicable to the word free. The sense correlative with aliens is a sense appropriate to the subject matter of the instrument; it accurately and properly describes a class of persons, which the constitution presumes would exist under it; it was, at the time, the received and technical sense of the word in all instruments of a similar character, and therefore its presumptive sense in the constitution; it is consistent with intentions reasonably attributable to all the parties to the constitution; it is consistent with natural right, with the preamble, the declared purpose of the constitution, and with the general system of the laws established by the constitution. Its legal meaning, in the constitution, was therefore plain, manifest, palpable, and, at the time of its adoption, had no need of interprelation. It needs interpretation now, only to expose the fraudulent interpretation of the past; and because, in pursuance of that fraudulent interpretation, usage has now somewhat changed the received meaning of the word.

“Story says, “Are we at liberty, upon any principles of reason or common sense, to adopt a restrictive meaning which will defeat an avowed object of the constitution, when another equally natural, and more appropriate to the subject, is before us?”—1 Story’s Comm., p. 445.

Dane says, “With regard to the different parts of a statute, there is one general rule of construction; that is, the construction of each and every part must be made on a full view of the whole statute; and every part must have force and effect, if possible; for the meaning of every part is found in its connection with other parts.”—6 Dane, 598.

Vattel says, “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 in itself, as that it ought to have from the thread and spirit of the discourse. This is the maxim of the Roman law, Incivile est, nisi tota lege perspecta, una aliqua particula ejus proposita, judicare, vel respondere.” (It is improper to judge of, or answer to, any one particular proposed in a law, unless the whole law be thoroughly examined.)—B. 2, ch. 17, 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 do not manifestly appear, that, by the last clauses, something is changed that went before.”—Same, sec. 286.

The way the advocates of slavery proceed in interpreting the constitution, is this. Instead of judging of the meaning of the word free by its connection with the rest of the instrument, they first separate that word entirely from all the rest of the instrument; then, contrary to all legal rules, give it the worst meaning it is under any circumstances capable of; then bring it back into the instrument; make it the ruling word of the instrument; and finally cut down all the rest of the instrument so as to make it conform to the meaning thus arbitrarily and illegally given to this one word free.

No statute shall be construed in such manner as to be inconvenient, or against reason.”—7 Bacon’s Abridg., 465.

“Where the construction of a statute is doubtful, an argument from convenience will have weight.”—3 Mass., 221.

Ch. J. Shaw says, “The argument from inconvenience may have considerable weight upon a question of construction, where the language is doubtful; it is not to be presumed, upon doubtful language, that the legislature intended to establish a rule of action, which would be attended with inconvenience.”—11 Pickering, 490.

Ch. J. Abbott says, “An exposition of these statutes, pregnant with so much inconvenience, ought not to be made, if they will admit of any other reasonable construction.”—3 Barnwell, & A, 271.

“The argument from inconvenience is very forcible in the law, as often hath been observed.”—Coke Lit., 383, a. note.

The Supreme Court United States say: “It is undoubtedly a well-established principle in the exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole. It is also true, that where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain, in which case it must be obeyed.”—2 Cranch, 358.

“The natural import of the words of any legislative act, according to the common use of them, when applied to the subject matter of the act, is to be considered as expressing the intention of the legislature; unless the intention, so resulting from the ordinary import of the words, be repugnant to sound, acknowledged principles of national policy. And if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those principles, unless the intention of the legislature be clearly and manifestly repugnant to them.”—Opinion of the Justices, including Parsons; 7 Mass., 523.

There is one short and decisive answer to all the pretence that the slaveholders cannot be presumed to have agreed to the constitution, if it be inconsistent with slavery; and that is, that if the slaveholders cannot be presumed to have agreed to it, then they, and not the slaves, must be presumed to have been no parties to it, and must therefore be excluded from all rights in it. The slaves can certainly be presumed to have agreed to it, if it gives them liberty. And the instrument must be presumed to have been made by and for those who could reasonably agree to it. If, therefore, any body can be excluded from all rights in it, on the ground that they cannot be presumed to have agreed to such an instrument as it really is, it must be the slaveholders themselves. Independently of this presumption, there is just as much authority, in the constitution itself, for excluding slaveholders, as for excluding the slaves, from all rights in it. And as the slaves are some ten or fifteen times more numerous than the slaveholders, it is ten or fifteen times more important, on legal principles, that they be included among the parties to the constitution, than that the slaveholders should be.

In case Ex parte Bollman and Swartout, Justice Johnson, of the Sup. Court U. S., said,—

“I am far, very far, from denying the general authority of adjudications. Uniformity in decisions is often as important as their abstract justice. (By no means.) But I deny that a court is precluded from the right, or exempted from the necessity, of examining into the correctness or consistency of its decisions, or those of any other tribunal. If I need precedent to support me in this doctrine, I will cite the example of this court, (Sup. Court U. S.) which, in the case of the United States vs. Moore, February, 1805, acknowledged that in the case of the United States vs. Sims, February, 1803, it had exercised a jurisdiction it did not possess. Strange indeed would be the doctrine that an inadvertency, once committed by a court, shall ever after impose on it the necessity of persisting in its error. A case that cannot be tested by principle is not law, and in a thousand instances have such cases been declared so by courts of justice.”—4 Cranch, 103.

“Nullius hominis authoritas tantum apud vos valere debet, ut meliora non sequeremur si quis attulerit.” (The authority of no man ought to weigh so much with us, that if any one has offered anything better, we may not follow it.)—Coke Lit., 383, a. note.

In Vaughn’s Reports, p. 169, 70, the court say,—

“The second objection is, that the king’s officers by usage have had in several kings’ times the duties of tonnage and poundage from wrecks.

“1. We desired to see ancient precedents of that usage, but could see but one in the time of King James, and some in the time of the last king; which are so new that they are not considerable, (not worthy to be considered.)

“2. Where the penning of a statute is dubious, long usage is a just medium to expound it by; for jus et norma loquendi (the rule and law of speech) is governed by usage. And the meaning of things spoken or written must be, as it hath constantly been received to be by common acceptation.

“But if usage hath been against the obvious meaning of an act of parliament, by the vulgar and common acceptation of the words, then it is rather an oppression of those concerned, than an exposition of the act, especially as the usage may be circumstanced.

“As, for instance, the customers seize a man’s goods, under pretence of a duty against law, and thereby deprive him of the use of his goods, until he regains them by law, which must be by engaging in a suit with the king, rather than do so he is content to pay what is demanded for the king. By this usage all the goods in the land may be charged with the duties of tonnage and poundage; for when the concern is not great, most men (if put to it) will rather pay a little wrongfully, than free themselves from it overchargeably.

“And in the present case, the genuine meaning of the words and purpose of the act, is not according to the pretended usage, but against it, as hath been shewed; therefore usage in this case weighs not.”

The Supreme Court United States say, “The intention of the legislature is to be searched for in the words which the legislature has employed to convey it.”—7 Cranch, 60.

Also, “The intention of the instrument (the constitution) must prevail; this intention must be collected from its words.”—12 Wheaton, 332.

Story says, “We must take it to be true, that the legislature intend precisely what they say.”—1 Story’s C. C. Rep., 653.

Vattel says, “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 really had the view attributed to him, if he has concealed it, and made known others, the interpretation can only be founded upon these, (which he has made known,) and not upon the views which the author has not expressed; we take for true against him what he has sufficiently declared.”—B. 2, ch. 17, sec. 287.

Rutherforth says, “The safest ground for us to stand upon, is what the writer himself affords us; when the legislator himself has plainly declared the reason (intention) of the law in the body of it, we may argue from thence with certainty.”—B. 2, ch. 7, p. 330.

Rutherforth also says, “A promise, or contract, or a will, gives us a right to whatever the promiser, the contractor, or the testator, designed or intended to make ours. But his design or intention, if it is considered merely as an act of his mind, cannot be known to any one besides himself. When, therefore, we speak of his design or intention as the measure of our claim, we must necessarily be understood to mean the design or intention which he has made known or expressed by some outward mark; because, a design or intention which does not appear, can have no more effect, or can no more produce a claim, than a design or intention which does not exist.

“In like manner, the obligations that are produced by the civil laws of our country arise from the intention of the legislator; not merely as this intention is an act of the mind, but as it is declared or expressed by some outward sign or mark, which makes it known to us. For the intention of the legislator, whilst he keeps it to himself, produces no effect, and is of no more account than if he had no such intention. Where we have no knowledge, we can be under no obligation. We cannot, therefore, be obliged to comply with his will, where we do not know what his will is. And we can no otherwise know what his will is, than by means of some outward sign or mark, by which this will is expressed or declared.”—B. 2, chap. 7, p. 307.

All rules of construction apply only to words that need to be construed; to those which are capable of more than one meaning, or of a more extended or restricted sense, and whose meanings in the law are therefore uncertain. Those words whose meanings are plain, certain, and precise, are not allowed to be construed at all. It is a fundamental maxim, as before cited, (under rule thirteenth,) that it is not admissible to interpret what needs no interpretation.

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 or 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.”—B. 2, ch. 17, sec. 284.

And this is an universal rule with courts, to interpret the ambiguous words of an instrument by those that are explicit.

It will not do to take these, or any other rules, on trust from courts; for courts, although they more generally disregard, or keep out of sight, all rules which stand in the way of any unlawful decisions which they are determined to make, can yet not very unfrequently lay down false rules to accomplish their purposes. For these reasons, only those of their rules that are plainly adapted to promote certainty and justice, are to be relied on.

Story says, “In coustruing the constitution of the United States, we are, in the first instance, to consider what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted, which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and designs, of the instrument. Where the words are unambiguous, but the provision may cover more or less ground, according to the intention, which is subject to conjecture; or where it may include in its general terms more or less than might seem dictated by the general design, as that may be gathered from other parts of the instrument, there is much more room for controversy; and, the argument from inconvenience will probably have different influences upon different minds. Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only upon the most persuasive reasons. In examining the constitution, the antecedent situation of the country, and its institutions, the existence and operations of the state governments, the powers and operations of the confederation, in short, all the circumstances which had a tendency to produce or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history, and contemporary interpretation, to aid us in just conclusions.

“It is obvious, however, that contemporary interpretation must be resorted to with much qualification and reserve. In the first place, the private interpretation of any particular man, or body of men, must manifestly be open to much observation. 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. In different states, and in different conventions, different and very opposite objections are known to have prevailed; and might well be presumed to prevail. 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. In the interpretation of a state statute, no man is insensible of the extreme danger of resorting to the opinions of those who framed it, or those who passed it. Its terms may have differently impressed different minds. Some may have implied limitations and objects, which others would have rejected. Some may have taken a cursory view of its enactments, and others have studied them with profound attention. Some may have been governed by a temporary interest or excitement, and have acted upon that exposition which most favored their present views. Others may have seen, lurking beneath its text, what commended it to their judgment, against even present interests. Some may have interpreted its language strictly and closely; others, from a different habit of thinking, may have given it a large and liberal meaning. 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. The known diversity of construction of different parts of it, as well as the mass of its powers, in the different state conventions; the total silence upon many objections, which have since been started; and the strong reliance upon others, which have since been universally abandoned, add weight to these suggestions. Nothing but the text itself was adopted by the people. And it would certainly be a most extravagant doctrine to give to any commentary then made, and, a fortiori, to any commentary since made under a very different posture of feeling and opinion, an authority which should operate an absolute limit upon the text, or should supersede its natural and just construction.

“Contemporary construction is properly resorted to, to illustrate and confirm the text, to explain a doubtful phrase, or to expound an obscure clause; and in proportion to the uniformity and universality of that construction, and the known ability and talents of those by whom it was given, is the credit to which it is entitled. It can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries. We shall have abundant reason hereafter to observe, when we enter upon the analysis of the particular clauses of the constitution, how many loose interpretations and plausible conjectures were hazarded at an early period, which have since silently died away, and are now retained in no living memory, as a topic either of praise or blame, of alarm or of congratulation.—1 Story’s Com. on the Const. pp. 387 to 392.

Story makes the following caustic comments upon Mr. Jefferson’s rules of interpretation. They are particularly worthy the attention of those modern commentators, who construe the constitution to make it sanction slavery. He says,—

“Mr. Jefferson has laid down two rules, which he deems perfect canons for the interpretation of the constitution.* The first is, ‘The capital and leading object of the constitution was, to leave with the states all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other states; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favor of the states in the former, if possible to be so construed.’ Now, the very theory on which this canon is founded, is contradicted by the provisions of the constitution itself. In many instances, authorities and powers are given, which respect citizens of the respective states, without reference to foreigners, or the citizens of other states.† But if this general theory were true, it would furnish no just rule of interpretation, since a particular clause might form an exception to it; and, indeed, every clause ought, at all events, to be construed according to its fair intent and objects, as disclosed in its language. What sort of rule is that, which, without regard to the intent or objects of a particular clause, insists that it shall, if possible, (not if reasonable,) be construed in favor of the states, simply because it respects their citizens? The second canon is: ‘On every question of construction (we should) carry ourselves back to the time when the constitution was adopted; recollect the spirit manifested in the debates; and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.’ Now, who does not see the utter looseness and incoherence of this canon? How are we to know what was thought of particular clauses of the constitution at the time of its adoption? In many cases, no printed debates give any account of any construction; and where any is given, different persons held different doctrines. Whose is to prevail? Besides, of all the state conventions, the debates of five only are preserved, and these very imperfectly. What is to be done as to the other eight states? What is to be done as to the eleven new states, which have come into the Union under constructions, which have been established against what some persons may deem the meaning of the framers of it? How are we to arrive at what is the most probable meaning? Are Mr. Hamilton, and Mr. Madison, and Mr. Jay, the expounders in the Federalist, to be followed? Or are others of a different opinion to guide us? Are we to be governed by the opinions of a few, now dead, who have left them on record? Or by those of a few, now living, simply because they were actors in those days, (constituting not one in a thousand of those who were called to deliberate upon the constitution, and not one in ten thousand of those who were in favor or against it, among the people)? Or are we to be governed by the opinions of those who constituted a majority of those who were called to act on that occasion, either as framers of, or voters upon, the constitution? If by the latter, in what manner can we know those opinions? Are we to be governed by the sense of a majority of a particular state, or of all of the United States? If so, how are we to ascertain what that sense was? 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 exggerations 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 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. The opinions of the latter may sometimes aid us in arriving at just results, but they can never be conclusive. The Federalist denied that the president could remove a public officer without the consent of the senate. The first congress affirmed his right by a mere majority. Which is to be followed?”—1 Story’s Com. on Const., 390, 392, note.

Story says, also, Words, from the necessary imperfection of all human language, acquire different shades of meaning, each of which is equally appropriate, and equally legitimate; and each of which recedes in a wider or narrower degree from the others, according to circumstances; and each of which receives from its general use some indefiniteness and obscurity, as to its exact boundary and extent. We are, indeed, often driven to multiply commentaries from the vagueness of words in themselves; and, perhaps, still more often from the different manner in which different minds are accustomed to employ them. They expand or contract, not only from the conventional modifications introduced by the changes of society, but also from the more loose or more exact uses, to which men of different talents, acquirements, and tastes, from choice or necessity, apply them. No person can fail to remark the gradual deflections in the meaning of words, from one age to another, and so constantly is this process going on, that the daily language of life, in one generation, sometimes requires the aid of a glossary in another. It has been justly remarked, that no language is so copious, as to supply words and phrases for every complex idea; or so correct, as not to include many equivocally denoting different ideas. Hence it must happen, that, however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. We must resort, then, to the context, and shape the particular meaning so as to make it fit that of the connecting words, and agree with the subject matter.”—1 Story’s Com., 437.

Ch. J. Marshall, speaking for the Sup. Court United States, says, “The spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable.”—4 Whealon, 202.

Ch. J. Taney, giving the opinion of the Supreme Court of the United States, says, “In expounding this law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law, as it is passed, is the will of the majority of both houses, and the only mode in which that will is spoken, is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed.”—3 Howard, 24.

Coke says, “The words of an act of parliament must be taken in a lawful and rightful sense.”—Coke Lit., 381, b.

Also, “The surest construction of a statute is by the rule and reason of the common law.”—Same, 272, b.

“Acts of parliament are to be so construed as no man that is innocent, or free from injury of wrong, be by a literal construction punished or endamaged.”—Same, 360, a.

“When the construction of any act is left to the law, the law, which abhorreth injury and wrong, will never so construe it, as it shall work a wrong.”—Same, 42, a.

“It is a maxim in law, that the construction of a law shall not work an injury.” Same, 183, a.

“The rehearsal or preamble of the statute is a good mean to find out the meaning of the statute, and as it were a key to open the understanding thereof.”—Same, 70, a.

“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, for that best expresseth the meaning of the makers.”—Same, 381, b.

“If the words of a statute are obscure, they shall be expounded most strongly for the public good.”—Plowden, 82.

“It is most reasonable to expound the words which seem contrary to reason, according to good reason and equity.”—Same, 109.

“Such construction ought to be made of acts of parliament as may best stand with equity and reason, and mostly avoid rigor and mischief.”—Same, 364.

“The judges took the common law for their guide, which is a master in exposition, the reason whereof they pursued as near as they could.”—Same, 364.

“Words of a statute ought not to be interpreted to destroy natural justice.”—Viner’s Abridg. Constr. of Stat., sec. 156.

Blackstone’s rules of interpretation are as follows:

“The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit or reason of the law. Let us take a view of them all.

“1. Words are generally to be understood in their usual and most known significations; not so much regarding the propriety of grammar as their general and popular use.” * * *

“Terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, or science.” * * *

“2. If words happen to be still dubious, we may establish their meaning by the context; with which it may be of singular use to compare a word or sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proem, or preamble, is often called in to help the construction of an act of parliament.” * * *

“3. As to the subject matter, words are always to be understood as having regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end.” * * *

“4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” * * *

“5. But lastly, the most universal and effectual way of discerning the true meaning of a law, where the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it.” * * *—1 Blackstone, 59, 60.

Blackstone (1, 59) also lays it down as being “Contrary to all true forms of reasoning, to argue from particulars to generals.” Yet this is the universal mode of reasoning among those who hold slavery to be constitutional. Instead of reasoning from generals to particulars, they reason from particulars to generals. For example. Instead of judging of the word “free” by reference to the rest of the instrument, they judge of the whole instrument by reference to the word “free.” They first fix the meaning of the word “free,” by assuming for it, in defiance of the rest of the instrument, and of all legal rules, the worst possible meaning of which it is capable, simply on the illegal grounds that the slaveholders cannot be presumed to have been williag to do justice, but that all the rest of the country can be presumed willing to do injustice; and they then limit, bend, and break all the rest of the instrument to make it conform to that meaning. It is only by such process as this that the constitution is ever made to sanction slavery.

“The constitution is law, the people having been the legislators. And the several statutes of the commonwealth, enacted pursuant to the constitution, are law, the senators and representatives being the legislators. But the provisions of the constitution, and of any statute, are the intentions of the legislature thereby manifested. These ententions are to be ascertained by a reasonable construction, resulting from the application of correct maxims, generally acknowledged and received.

“Two of these maxims we will mention. That the natural import of the words of any legislative act, according to the common use of them, when applied to the subject matter of the act, is to be considered as expressing the intention of the legislature unless the intention, so resulting from the ordinary import of the words, be repugnant to sound, acknowledged principles of national policy. And if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those priu-ciples; unless the intention of the legislature be clearly and manifestly repugnant to them.”—Opinion of the justices, Parsons, Sewall, and Parker, 7 Mass., 524.

Chief Justice Parker says, “I have always understood that it was right and proper to consider the whole of a statute, and the preamble, and the probable intention of the legislature, in order to ascertain the meaning of any particular section; and that this mode of interpretation is justifiable, even where the words of the section itself may be unambiguous. Certainly if one section, however explicit its terms, if taken literally, would contravene the general object of the statute, it should be restrained so as to conform to that object.”—1 Pickering, 258.

“It is unquestionably a well-settled rule of construction, that when words are not precise and clear, such construction will be adopted as shall appear most reasonable, and best suited to accomplish the objects of the statute; and where any particular construction would lead to an absurd consequence, it will be presumed that some exception or qualification was intended by the legislature, to avoid such a conclusion.”—24 Pickering, 370.

“When the meaning of any particular section or clause of a statute is questioned, it is proper, no doubt, 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, and the intention of the legislature might be defeated. And if, upon examination, the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act.”—1 Pickering, 250.

The Supreme Court of the United States say, “It is undoubtedly a well-established principle in the exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole. It is also true that where great inconvenience will result from a particular construction, that construction is to be avoided; unless the meaning of the legislature be plain, in which case it must be obeyed.”—2 Cranch, 358.

“When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion. These rules, by which the sages of the law, according to Plowden, have ever been guided in seeking for the intention of the legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the wisdom of ages.”—1 Kent, 61.

Kent declares the rule of the English courts to be this: “They will not readily presume, out of respect and duty to the lawgiver, that any very unjust or absurd consequence was within the contemplation of the law. But if it should be too palpable in its direction to admit of but one construction, there is no doubt, in the English law, as to the binding efficacy of the statute.”—1 Kent, 447.

This rule implies that if a statute be susceptible of more than “one construction,” the just or reasonable one must be preferred to “any very unjust or absurd one.”

Kent also says, “Statutes are likewise to be construed in reference to the principles of the common law;” (which, in vol. 1, p. 470, he describes as being, in great part, but “the dictates of natural justice and cultivated reason;”) “for it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely required. This has been the language of the courts in every age, and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law, as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction.”—1 Kent, 463.

Rutherforth says, “All civil laws, and all contracts in general, are to be so construed, where the words are of doubtful meaning, as to make them produce no other effect but what is consistent with reason, or with the law of nature.”—B. 2, ch. 7, p. 327.

“Lord Coke has laid it down as a general rale, that where words may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment which standeth with law shall be taken.”—Co. Lit., 42, a. 6, 183, a. Cited also in Pothier.

“When the terms of a contract are capable of two significations, we ought to understand them in the sense which is most agreeable to the nature of the contract.”—Pothier on Contracts, part 1, ch. 1, art. 7, rule 3.

The Supreme Court of the United States say, “An act of congress ought never to be construed to violate the law of nations,” (or the law of nature, they might have said, for the same reason, for the two are substantially synonymous in principle,) “if any other possible construction remains.”—2 Cranch, 64.

Parson, Chief Justice, says, “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.

“Statutes are not to be construed as taking away a common law right, unless the intention is manifest.”—4 Mass., 473.

“It is an established rule, that a statute is not to be construed so as to repeal the common law, unless the intent to alter it is clearly expressed.”—9 Pickering, 514.

“Laws are construed strictly to save a right, or avoid a penalty; and liberally to give a remedy, or effect an object declared in the law.”—1 Baldwin, 316.

“Statutes are expounded by the rules and reasons of the common law; and though the words of a statute be general, yet they shall be specially construed to avoid an apparent injury.”—6 Dane, 588.

“This policy, founded in manifest justice, ought to be enforced in this case, if the several laws in the statute-book, or any one of them, will admit of a reasonable construction to this effect.”—14 Mass., 92.

“No statute ought to be so construed as to defeat its own end; nor so as to operate against reason; nor so as to punish or damnify the innocent; nor so as to delay justice.”—6 Dane, 596.

“The best construction of a statute is to construe it as near to the rule and reason of the common law as may be, and by the course which that observes in other cases.”—Bacon’s Abr. Stat., I. 32.

Lord Coke, cited by Chief Justice Abbott, says, “Acts of parliament are to be so construed, as no man that is innocent, or free from injury, or wrong, be by a literal construction punished or endamaged.”—3 Barnwell & A. 271.

“When any words or expressions in a writing are of doubtful meaning, the first rule in mixed interpretation is to give them such a sense as is agreeable to the subject matter of which the writer is treating. For we are sure on the one hand that this subject matter was in his mind, and can on the other hand have no reason for thinking that he intended anything which is different from it, and much less that he intended anything which is inconsistent with it.”—Rutherforth, b. 2, ch. 7, p. 323.

“The interpretation or construction of the constitution is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation of a law.”—1 Kent, 449.

“But we should particularly regard the famous distinction of things favorable, and things odious.”—Vattel, B. 2, ch. 17, sec. 300.

“The precise point of the will of the legislature, or of the contracting powers, is what ought to be followed; but if their expressions are indeterminate, vague, or susceptible of a more or less extensive sense,—if this precise point of their intention in the particular case in question cannot be discovered and fixed, by other rules of interpretation, it should be presumed, according to the laws of reason and equity.”—Same.

“All the things which, without too much burthening any one person in particular, are useful and salutary to human society, ought to be reckoned among the favorable things. For a nation is already under a natural obligation with respect to things of this nature; so if it has in this respect entered into any particular engagements, we run no risk in giving these engagements the most extensive sense they are capable of receiving. Can we be afraid of doing violence to equity by following the law of nature, and in giving the utmost extent to obligations that are for the common advantage of mankind? Besides, things useful to human society, on this account, tend to the common advantage of the contracting powers, and are consequently favorable. Let us, on the contrary, consider as odious everything that, in its own nature, is rather hurtful than of use to the human race.”—Same, sec. 302.

“When the legislature, or the contracting powers, have not expressed their will in terms that are precise and perfectly determinate, it is to be presumed that they desire what is most equitable.”—Same, sec. 307.

“We favor equity, and fly from what is odious, so far as that may be done without going directly contrary to the tenor of the writing, and without doing violence to terms.”—Same, sec. 308.

Assuming that the preceding principles of interpretation are correct, it may be allowable, on account of the importance of the subject, and the contrary opinions which appear to prevail, to apply them to another clause of the constitution than those claimed for slavery.

The constitution declares that “the congress shall have power to declare war.”

This power, unqualified in its terms, would, if taken literally, and independently of the declared objects of this and all the other powers granted to the government, give congress authority to declare war for any cause whatever, just or unjust, for reasons the most frivolous and wicked, as well as for the most important and necessary purposes of self-preservation. Yet such is not the power that is actually granted. All the principles of interpretation before laid down, requiring a construction consistent with justice, and prohibiting the contrary, limit this power to cases of just war; war that is necessary for the defence and enforcement of rights.

The objects of the powers granted to congress are “to establish justice,” “secure liberty,” “provide for the common defence,” &c.; and the powers are to be construed with reference to the accomplishment of these objects, and are limited by them. Congress, therefore, have no constitutional authority to make wars of aggression and conquest. And all acts of congress, of that nature, are unconstitutional.

Law-books abound with cases in which general words are restrained to such particular meanings as are consistent with justice and reason. And the rule is well established that general words are always to be thus restrained, unless there be something in the context to forbid it.

“A thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.”—15 Johnson, 381; 3 Cowen, 92; 1 Blackstone, 60-61; 3 Mass., 540; 5 Mass., 382; 15 Mass., 206; Bac. Abr. Stat., I., 45.

Was it the intent of “the people of the United States” to authorize their government to make wars of aggression and conquest? Their intention must be collected from their words, but their words must always be taken in a sense consistent with justice, and in no other, if the words are capable of a just meaning. “War” may be made for just, and for unjust purposes. But as two conflicting intentions cannot be attributed to the same provision, the just intention must be preferred to the unjust one. The preamble, also, as we have seen, shows the object of this power to be “to secure liberty,” and “provide for the common defence.” A good object, and a sufficient object, being thus apparent, and being also specially declared in the preamble, no other can be attributed, and the power is consequently limited to that object.*

Plowden says, “And the judges of the law in all times past have so far pursued the intent of the makers of statutes, that they have expounded acts, which were general in words, to be but particular, when the intent was particular.”—Plowden, 204.

Vattel says, “We limit a law or a promise contrary to the literal signification of the terms, by regulating our judgment by the reason of that law, or that promise.”—Vattel, B. 2, ch. 17, sec. 292.

Also, “The restrictive interpretation takes place, when a case is presented in which the law or the treaty, according to the rigor of the terms, lead to something unlawful. This exception must then be made, since nobody can promise or ordain what is unlawful. For this reason, though assistance has been promised to an ally in all his wars, no assistance ought to be given him when he undertakes one that is manifestly unjust.”—Same, sec. 293.

Also, “We should, in relation to things odious,” (that is, “everything that in its own nature is rather hurtful than of use to the human race,”) “take the terms in the most confined sense.”—Same, sec. 308.

The Supreme Court of the United States, also, say, “An act of congress,” (and the same reason applies to the constitution,) “ought never to be construed to violate the law of nations, if any other possible construction remains.”—2 Cranch, 64.

To understand the force of this last rule, some definition of the law of nations is necessary. The best general definition of it is, that which considers nations as individuals, and then applies the same principles of natural law to them, that are applicable to individuals. This rule, however, requires to be modified by being made more lenient to nations, in certain cases, than to individuals. For example; the whole people of a nation are not to have war made upon them, for wrongs done by their government, any sooner or further than is necessary to compel them to redress those wrongs as soon as, in the nature of things, they (the people) can do it, by changing, or operating upon their government. The reasons are these: The people, by instituting government, or appointing certain individuals to administer it, do not authorize those individuals to commit any wrongs against foreign nations. They are not, therefore, themselves culpable for those wrongs. When, then, such wrongs are committed, all that the people can be required to do, is that they dismiss the wrong doers from power, and appoint others who will redress the injuries committed. And to do this, the people must be allowed such time as is reasonable and necessary, which will be more or less, according to circumstances. But ample time must be sure to be allowed in all cases, before war against them can be lawful.

2. In controversies as to their respective rights and wrongs, nations are each entitled to longer time for investigating and determining their rights than individuals, because it is not in the nature of things possible that a whole people can investigate such questions with the same promptness that individuals can investigate their respective rights in their private controversies; and a whole people are not to be held liable, by having war made upon them, until they have had ample, or, at least, reasonable, time to investigate the matters in controversy.

3. Nations are entitled to longer delays for fulfilling their contracts, paying their debts, &c., than individuals, because governments, no more than individuals, can be required to perform impossibilities, and a government’s means of paying its debts must be obtained by systematic processes of taxation, which require a longer or shorter time, according to the wealth and resources of the country.

4. But another reason why greater forbearance is due to nations than to individuals, is, that it generally happens that a part only of a nation are disposed to withhold justice, while the rest are willing to do it. Yet if the nation, as a whole, were held responsible to the same rigid rules as an individual, by having war declared on the first want of promptitude in fulfilling their duty, the innocent would be involved in the same punishment with the guilty.

For all these reasons, and some others, great lenity and forbearance in the enforcement of rights is demanded by the law of nations, or by the natural law applicable to nations.

To apply the foregoing principles: If the war in which the United States are now engaged with Mexico, be one, not of defence, but of aggression, on their part, or be made in violation of natural law, it is unconstitutional, and all proceedings had in the prosecution of it are illegal. The enlistments of soldiers for that service are illegal; and the soldiers are not bound by their enlistments. The soldiers legally owe no obedience to their officers. The officers have no legal authority over their soldiers. The oaths of the officers to obey the laws of the United States, while they are in the territory of Mexico, are of no legal obligation. And the officers and soldiers, while in Mexico, are in no way legally amenable to the government or laws of the United States for their conduct. They owe no legal obedience to the orders of the president. They are, in the eye of our own law, mere banditti. They may throw off all allegiance to the government of the United States, turn conquerors on their own account, and it will be no offence against the laws of the United States. The appropriations for carrying on the war in Mexico are illegal, and might, with as much constitutional authority, be made to Mexican brigands, as to our own soldiers. Finally, our soldiers are bound to know our own constitutional law on this point, and to know that they are acting without legal authority. They are, therefore, not entitled to the rights of prisoners of war, in case they should fall into the hands of the Mexican government, but are liable to he treated as robbers and murderers; and our government, in such an event, would have no constitutional right to protect them, by force, from their liability to Mexican laws, for all the crimes they are now committing.

4 Jefferson’s Correspondence, 373, 391, 392, 396.

4 Jefferson’s Correspondence, 391, 392, 396.

Story says, “The true office of the preamble is to expound the nature, and extent, and application of the powers actually conferred by the constitution.”—1 Story’s Com. Const., 445.

If the word free were used as the correlative of any other kinds of restraint than slavery, it would not have implied slavery as its correlative, and there would have been no ground for the argument for slavery. On the other hand, if it were used as the correlative of slavery, there was no need of specially excepting from the implication of slavery “those bound to service for a term of years,” for they were known by everybody not to be slaves.

By Wendell Phillipe.

And in some of the States, as Illinois and Michigan, for example, they are allowed to vote.

The provision in the constitution of the United States, in regard to electors, is this: (art. 1, sec. 2.)

“The House of Representatives shall be composed of members chosen every second year, by the people of the several States,” (not by the citizens of the United States in each State, but by “the people of the several States,”) “and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.”

They may be judges, ambassadors, secretaries of the departments, commanders in the army and navy, collectors of revenue, postmasters, &c., equally with the citizens.

For the term alien technically implies exclusion from office, exclusion from the right of suffrage and inability to hold real estate.

They are called aliens in this argument, for the want of any other word that will describe them.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See Chap. 20 and 22.

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

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

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

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

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

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

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

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

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

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

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

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

See page 179.

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

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

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

See Chap. 13.

The Supreme Court of the United States say, the “powers” of the general government “are to be exercised directly on the people, and for their benefit.”—4 Wheaton, 205.

The doctrine that the government has all power except what is prohibited to it, is of despotic origin. Despotic government is supposed to originate, and does in fact originate, with the despot, instead of the people; and he claims all power over them except what they have from time to time wrested from him. It is a consistent doctrine that such governments have all power except what is prohibited to them. But where the government originates with the people, precisely the opposite doctrine is true, viz., that the government has no power except what is granted to it.

If, however, they had not known that the existing slavery was unconstitutional, and had proceeded upon the mistaken belief that it was constitutional, and had intended to recognize it as being so, such intended recognition would have availed nothing; for it is an established principle, recognized by the Supreme Court of the United States, that “a legislative act, founded upon a mistaken opinion of what was law, does not change the actual state of the law, as to pre-existing cases.”—1 Cranch, 1; Peter’s Digest, 578.

Sec Part First, pages 90 to 94, sec. edition. Also the argument under the “Sixth Rule of Interpretation,” p. 182 to 189 of this part, and under the “Second Rule cited for Slavery,” p. 214 to 216.

It is not necessary, as some imagine, for Congress to enact a law making slavery illegal. Congress have no such power. Such a power would imply that slavery was now legal. Whereas it is now as much illegal as it is possible to be made by all the legislation in the world. Congress, assuming that slavery is illegal, are constitutionally bound to provide all necessary means for having that principle maintained in practice.

Part First, ch. 8, p. 101, 2d ed.

In a speech, in the Senate of the United States, upon the Fugitive Slave bill, so called, on the 19th day of August, 1850, (as reported in the Washington Union and National Intelligencer,) senator Mason, of Virginia, the chairman of the committee that reported the bill, and the principal champion of the bill in the Senate, in describing “the actual evils under which the slave States labor in reference to the reclamation of these fugitives,” said:

I am confident that Mr Calhoun made the same admission within two or three years last past, but I have not the paper containing it at hand.

Servants were, at that time, a very numerous class in all the states; and there were many saws respecting them, all treating them as a distinct class from slaves.

Washburn, in his “Judicial History of Massachusetts,” (p. 202,) says:

Perhaps it may be claimed by some that the constitution of South Carolina was an exception to this rule. By that constitution it was provided that the qualifications of members of the Senate and House of Representatives “shall be the same as mentioned in the election act.”

“The election act” was an act of the Provincial Assembly, passed in 1759, which provided that members of the Assembly “shall have in this province a settled plantation, or freehold estate, of at least five hundred acres of land, and twenty slaves.”

But this act was necessarily void, so far as the requirement in regard to slaves was concerned; because, slavery being repugnant to the laws of England, it could have no legal existence in the colony, which was restricted from making any laws, except such as were conformable, as nearly as circumstances would allow, to the laws, statutes, and rights, of the realm of England.

This part of the act, then, being void at the time it was passed, and up to the time of the adoption of the constitution of the state, the provision in that constitution could not legally be held to give force to this part of the act. Besides, there could be no slaves, legally speaking, in 1778, for the act to refer to.

No one, I trust, will suppose I am actually accusing abolitionists of seeking power for their own gratification. I am only showing their political position, so long as they concede that slavery is constitutional.

If abolitionists think that the constitution supports slavery, they ought not to ask for power under it, nor to vote for any one who will support it. Revolution should be their principle. And they should vote against all constitutional parties, block the wheels of government and thus compel revolution.

If slavery be unconstitutional, all the colored persons in the United States are citizens of the United States, and consequently citizens of the respective States. And when they go from one State into another, they are “entitled to all the privileges and immunities of citizens” in the latter State. And all statutes forbidding them to testify against white persons, or requlring them to give bail for good behavior, or not to become chargeable as paupers, are unconstitutional

a

NEW SYSTEM

of

PAPER CURRENCY.

BY LYSANDER SPOONER.

BOSTON:

PRINTED BY STACY & RICHARDSON,

No. 11 Milk Street.

1861.

Entered according to Act of Congress, in the year 1861, By LYSANDER SPOONER, in the Clerk’s office of the District Court of the United States, for the District of Massachusetts.

CONTENTS.

• PART FIRST.
  • Note, . . . . . . 5
    • Chapter I.—Outline of the System, . . . 9
    • Chap. II.—Advantages of the System, . . . 14
    • Chap. III.—Security of the System, . . . 21
    • Chap. IV.—Practicability of the System, . . 27
    • Chap. V.—Legality of the System, . . . 48

• PART SECOND.
  • Articles of Association of a Mortgage Stock Banking Company.

PART FIRST

PART SECOND.