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Title: The Unconstitutionality of Slavery Author: Lysander Spooner Date: 1845 Language: en Topics: slavery, constitution, USA Source: Retrieved on 2020-06-10 from https://www.gutenberg.org/ebooks/31844
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 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 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 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 of 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 any body 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.[1]
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 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 any thing, 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,) any
thing in violation of natural justice, or the natural 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 every where 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
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 any thing, 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 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, 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.[2]
“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 every where, 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.
“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 State’s 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 laws
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.
All the foregoing definitions of law, rights and natural liberty,
although some of them are expressed in somewhat vague and indefinite
terms, nevertheless recognize the 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 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 every thing, 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 developement
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.
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 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 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 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
overthrown, where the general system of the law 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.”[3]
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.
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 prevailed 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.”[4]
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.[5]
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.[6] 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 any where; 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 any where 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 any where, if they had attempted to do
so.[7] 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 that
coast of Africa, to allow slavery under 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 decision 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.[8]
The conclusion of the whole matter is, that until some reason appears
against them, we are bound by the decision of the King’s bench in 1772,
and the colonial charters. That decision declared that there was, at
that time, in England, no right of property in man, (notwithstanding the
English government had for a long time connived at the slave trade.)—The
colonial charters required the legislation of the colonies to be
consonant to reason, and not repugnant or contrary, but conformable, or
agreeable, as nearly as circumstances would allow, to the laws, statutes
and rights of the realm of England. That decision, then, if correct,
settled the 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.
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 be 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 repugnant 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.
“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. State’s Reports, 332–3.)
“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
“1795, 8 and 10 Wm. 3, ch. 26.” (Should be 1797, 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. &., 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,(The Royal African 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 merchandizes 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, redwood 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,(The Royal African 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 enterprize 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 any thing
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 20^(th) 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 29^(th) 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 it
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
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 28^(th) 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 any where, 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.
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 baptise their slaves,[9]
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 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.”[10]
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.[11]
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.[12]
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.[13]
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.
Brevard’s Digest, vol. 2, p. 130.
“Baptised.” 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 baptised.
But that notwithstanding such slave or slaves shall receive and profess
the Christian religion, and be baptised, 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 confering 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 endeavor 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.
“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.”
“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 vigor 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.
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 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 only for 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, and 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 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 4^(th) 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
re-asserted the same truth in nearly every state constitution since
adopted. We have virtually re-asserted 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 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.
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.[14]
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
any body 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 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 46^(th) 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.
2. 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 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,) 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 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 any
thing 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 Jacob’s Law Dictionary the following definitions, among others, are
given of the word “freemen.”
“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 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,
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.[15]
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,”
“freeman 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:
“That all and every the subjects of us, our heirs and successors,” (i.e.
of the king of England granting the charter,) “which are already planted
and settled within our said colony of Providence Plantations, or which
shall hereafter go to inhabit within the said colony, and all and every
of their children which have been born there, or which shall happen
hereafter to be born there, or on the sea going thither, or returning
from thence, shall have and enjoy all liberties and immunities of free
and natural subjects, within any of the dominions of us, our heirs and
successors, to all intents, constructions and purposes whatsoever, as if
they and every of them were born within the realm of England.”
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.
“And forasmuch as it is apparent that the just encouragement of the
inhabitants of the province, and territories thereunto belonging, is
likely to be an effectual way for the improvement thereof; and since
some of the people that live therein and are likely to come thereunto,
are foreigners, and so not freemen, according to the acceptation of the
laws of England, the consequences of which may prove very detrimental to
them in their estates and traffic, and so injurious to the prosperity of
this province and territories thereof. Be it enacted, by the proprietary
and governor of the province and counties aforesaid, by and with the
advice and consent of the deputies of the freemen thereof, in assembly
met, That all persons who are strangers and foreigners, that do now
inhabit this province and counties aforesaid, that hold land in fee in
the same, according to the law of a freeman, and who shall solemnly
promise, within three months after the publication thereof, in their
respective county courts where they live, upon record, faith and
allegiance to the king of England and his heirs and successors, and
fidelity and lawful obedience to the said William Penn, proprietary and
governor of the said province and territories, and his heirs and
assigns, according to the king’s letters, patents and deed aforesaid,
shall be held and reputed freemen of the province and counties
aforesaid, in as ample and full a manner as any person residing therein.
And it is hereby further enacted, by the authority aforesaid, That when
at any time any person, that is a foreigner, shall make his request to
the proprietary and governor of this province and territories thereof,
for the aforesaid freedom, the said person shall be admitted on the
conditions herein expressed, paying at his admission twenty shillings
sterling, and no more, any thing in this law, or any other law, act or
thing in this province, to the contrary in any wise notwithstanding.”
“Given at Chester,” &c., “under the hand and broad seal of William Penn,
proprietary and governor of this province and territories thereunto
belonging, in the second year of his government, by the king’s
authority. W. Penn.”[16]
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 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 have 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:
“Art. 11. No person shall be entitled to more than one vote, which shall
be given in the county where such person resides, except as before
excepted; nor shall any person who holds any title of nobility, be
entitled to a vote, or be capable of serving as a representative, or
hold any post of honor, profit, or trust, in this State, while such
person claims his title of nobility; but if the person shall give up
such distinction, in the manner as may be directed by any future
legislature, then, and in such case, he shall be entitled to a vote, and
represent, as before directed, and enjoy all the other benefits of a
FREE citizen.”
The constitution of North Carolina, (adopted in 1776), used the word in
a similar sense, as follows:
“40. That every foreigner, who comes to settle in this State, having
first taken an oath of allegiance to the same, may purchase, or by other
just means acquire, hold, and transfer land, or other real estate, and
after one year’s residence be deemed a FREE citizen.”
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:
“Sec. 42. Every foreigner, of good character, who comes to settle in
this State, having first taken an oath or affirmation of allegiance to
the same, may purchase, or by other just means acquire, hold and
transfer land or other real estate; and after one year’s residence,
shall be deemed a FREE denizen thereof, and entitled to all the rights
of a natural born subject of this state, except that he shall not be
capable of being elected a representative until after two year’s
residence.”
The constitution of New York, (adopted in 1777,) uses the word in the
same manner:
“Sec. 6. That every male inhabitant of full age, who has personally
resided in one of the counties of this state for six months, immediately
preceding the day of election, shall at such election be entitled to
vote for representatives of the said county in assembly, if during the
time aforesaid he shall have been a freeholder, possessing a freehold of
the value of twenty pounds, within the said county, or have rented a
tenement therein of the yearly value of forty shillings, and been rated
and actually paid taxes to the State. Provided always, That every person
who now is a freeman of the city of Albany, or who was made a freeman of
the city of New York, on or before the fourteenth day of October, in the
year of our Lord one thousand seven hundred and seventy-five, and shall
be actually and usually resident in the said cities respectively, shall
be entitled to vote for representatives in assembly within his place of
residence.”
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:
Sec. 13. The qualification of electors shall be that “every free white
man, and no other person,” &c., “shall be deemed a person qualified to
vote for, and shall be capable of being elected a representative.”
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 to 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 remained in force until
1784, when it was repealed by an act entitled “An act to confer the
right of citizenship on aliens”[17]
One more example of this use of the word “freeman.” The constitution of
Connecticut, adopted as late as 1818, has this provision:
“Art. 6. Sec. 1. All persons who have been, or shall hereafter, previous
to the ratification of this constitution, be admitted freemen, according
to the existing laws of this State, shall be electors.”
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.
These early Constitutions ought to be collected and published with
appropriate notes.
The Articles of Confederation, (formed in 1778,) contained no
recognition of slavery. The only words in them, that could be claimed by
any body as recognizing slavery, are the following, in Art. 4, Sec. 1.
“The better to secure and perpetuate mutual friendship and intercourse
among the people of the different States in this Union, the free
inhabitants of each of these States, paupers, vagabonds and fugitives
from justice excepted, shall be entitled to all the privileges and
immunities of free citizens in the several States; and the people of
each State shall have free ingress and regress to and from any other
State, and shall enjoy therein all the privileges of trade and commerce,
subject to the same duties, impositions and restrictions, as the
inhabitants thereof respectively.”
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 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.”
He says: “The dissimilarity in the rules of naturalization,” (i.e. in
the rules established by the separate states, for under the
confederation each state established its own rules of naturalization,)
“has long been remarked as a fault in our system, and as laying a
foundation for intricate and delicate questions. In the fourth article
of confederation, it is declared, ‘that the free inhabitants of each of
these states, paupers, vagabonds, and fugitives from justice excepted,
shall be entitled to all the privileges and immunities of free citizens
in the several states; and the people of each state shall, in every
other, enjoy all the privileges of trade and commerce,’ &c. There is a
confusion of language here, which is remarkable. Why the terms free
inhabitants are used in one part of the article, free citizens in
another, and people in another; or what was meant by superadding to ‘all
privileges and immunities of free citizens,’ ‘all the privileges of
trade and commerce,’ cannot easily be determined. It seems to be a
construction scarcely avoidable, however, that those who come under the
denomination of free inhabitants of a state, although not citizens of
such state, are entitled, in every other state, to all the privileges of
free citizens of the latter; that is, to greater privileges than they
may be entitled to in their own state; so that it may be in the power of
a particular state, or rather every state is laid under the necessity,
not only to confer the rights of citizenship in other states upon any
whom it may admit to such rights within itself, but upon any whom it may
allow to become inhabitants within its jurisdiction. But were an
exposition of the term ‘inhabitant’ to be admitted, which would confine
the stipulated privileges to citizens alone, the difficulty is
diminished only, not removed. The very improper power would still be
retained by each state, of naturalizing aliens in every other state. In
one state, residence for a short time confers all the rights of
citizenship; in another, qualifications of greater importance are
required. An alien, therefore, legally incapacitated for certain rights
in the latter, may, by previous residence only in the former, elude his
incapacity, and thus the law of one state be preposterously rendered
paramount to the laws of another, within the jurisdiction of the other.
“We owe it to mere casualty, that very serious embarrassments on this
subject have been hitherto escaped. By the laws of several states,
certain description of aliens, who had rendered themselves obnoxious,
were laid under interdicts inconsistent, not only with the rights of
citizenship, but with the privileges of residence. What would have been
the consequence, if such persons, by residence, or otherwise, had
acquired the character of citizens under the laws of another state, and
then asserted their rights as such, both to residence and citizenship,
within the state proscribing them? Whatever the legal consequences might
have been, other consequences would probably have resulted of too
serious a nature, not to be provided against. The new constitution has
accordingly, with great propriety, made provision against them, and all
others proceeding from the defect of the confederation on this head, by
authorizing the general government to establish an uniform rule of
naturalization throughout the United States.”
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.”
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 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 surplussage—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,” “any thing 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.
SECONDLY.
Although we might stop—we yet do not choose to stop—at the point last
suggested. We will now go further, and attempt to show, specifically
from its provisions, that the constitution of the United States, not
only does not recognize or sanction slavery, as a legal institution, but
that, on the contrary, it presumes all men to be free; that it
positively denies the right of property in man; and that it, of itself,
makes it impossible for slavery to have a legal existence in any of the
United States.
In the first place—although the assertion is constantly made, and rarely
denied, yet it is palpably a mere begging of the whole question in favor
of slavery, to say that the constitution intended to sanction it; for if
it intended to sanction it, it did thereby necessarily sanction it,
(that is, if slavery then had any constitutional existence to be
sanctioned.) The intentions of the constitution are the only means
whereby it sanctions any thing. And its intentions necessarily sanction
everything to which they apply, and which, in the nature of things, they
are competent to sanction. To say, therefore, that the constitution
intended to sanction slavery, is the same as to say that it did sanction
it; which is begging the whole question, and substituting mere assertion
for proof.
Why, then, do not men say distinctly, that the constitution did sanction
slavery, instead of saying that it intended to sanction it? We are not
accustomed to use the word “intention,” when speaking of the other
grants and sanctions of the constitution. We do not say, for example,
that the constitution intended to authorize congress “to coin money,”
but that it did authorize them to coin it. Nor do we say that it
intended to authorize them “to declare war;” but that it did authorize
them to declare it. It would be silly and childish to say merely that it
intended to authorize them “to coin money,” and “to declare war,” when
the language authorizing them to do so, is full, explicit and positive.
Why, then, in the case of slavery, do men say merely that the
constitution intended to sanction it, instead of saying distinctly, as
we do in the other cases, that it did sanction it? The reason is
obvious. If they were to say unequivocally that it did sanction it, they
would lay themselves under the necessity of pointing to the words that
sanction it; and they are aware that the words alone of the constitution
do not come up to that point. They, therefore, assert simply that the
constitution intended to sanction it; and they then attempt to support
the assertion by quoting certain words and phrases, which they say are
capable of covering, or rather of concealing such an intention; and then
by the aid of exterior, circumstantial and historical evidence, they
attempt to enforce upon the mind the conclusion that, as matter of fact,
such was the intention of those who drafted the constitution; and thence
they finally infer that such was the intention of the constitution
itself.
The error and fraud of this whole procedure—and it is one purely of
error and fraud—consists in this—that it artfully substitutes the
supposed intentions of those who drafted the constitution, for the
intentions of the constitution itself; and, secondly, it personifies the
constitution as a crafty individual; capable of both open and secret
intentions; capable of legally participating in, and giving effect to
all the subtleties and double dealing of knavish men; and as actually
intending to secure slavery, while openly professing to “secure and
establish liberty and justice.” It personifies the constitution as an
individual capable of having private and criminal intentions, which it
dare not distinctly avow, but only darkly hint at, by the use of words
of an indefinite, uncertain and double meaning, whose application is to
be gathered from external circumstances.
The falsehood of all these imaginings is apparent, the moment it is
considered that the constitution is not a person, of whom an
“intention,” not legally expressed, can be asserted; that it has none of
the various and selfish passions and motives of action, which sometimes
prompt men to the practice of duplicity and disguise; that it is merely
a written legal instrument; that, as such, it must have a fixed, and not
a double meaning; that it is made up entirely of intelligible words; and
that it has, and can have, no soul, no “intentions,” no motives, no
being, no personality, except what those words alone express or imply.
Its “intentions” are nothing more nor less than the legal meaning of its
words. Its intentions are no guide to its legal meaning—as the advocates
of slavery all assume; but its legal meaning is the sole guide to its
intentions. This distinction is all important to be observed; for if we
can gratuitously assume the intentions of a legal instrument to be what
we may wish them to be, and can then strain or pervert the ordinary
meaning of its words, in order to make them utter those intentions, we
can make any thing we choose of any legal instrument whatever. The legal
meaning of the words of an instrument is, therefore, necessarily our
only guide to its intentions.
In ascertaining the legal meaning of the words of the constitution,
these rules of law, (the reasons of which will be more fully explained
hereafter,) are vital to be borne constantly in mind, viz: 1^(st), that
no intention in violation of natural justice and natural right, (like
that to sanction slavery,) can be ascribed to the constitution, unless
that intention be expressed in terms that are legally competent to
express such an intention; and, 2d, that no terms, except those that are
plenary, express, explicit, distinct, unequivocal, and to which no other
meaning can be given, are legally competent to authorize or sanction any
thing contrary to natural right. The rule of law is materially different
as to the terms necessary to legalize and sanction any thing contrary to
natural right, and those necessary to legalize things that are
consistent with natural right. The latter may be sanctioned by
implication and inference; the former only by inevitable implication, or
by language that is full, definite, express, explicit, unequivocal, and
whose unavoidable import is to sanction the specific wrong intended.
To assert, therefore, that the constitution intended to sanction
slavery, is, in reality, equivalent to asserting that the necessary
meaning, the unavoidable import of the words alone of the constitution,
come fully up to the point of a clear, definite, distinct, express,
explicit, unequivocal, necessary and peremptory sanction of the specific
thing, human slavery, property in man. If the necessary import of its
words alone do but fall an iota short of this point, the instrument
gives, and, legally speaking, intended to give no legal sanction to
slavery. Now, who can, in good faith, say that the words alone of the
constitution come up to this point? No one, who knows any thing of law,
and the meaning of words. Not even the name of the thing, alleged to be
sanctioned, is given. The constitution itself contains no designation,
description, or necessary admission of the existence of such a thing as
slavery, servitude, or the right of property in man. We are obliged to
go out of the instrument, and grope among the records of oppression,
lawlessness and crime—records unmentioned, and of course unsanctioned by
the constitution—to find the thing, to which it is said that the words
of the constitution apply. And when we have found this thing, which the
constitution dare not name, we find that the constitution has sanctioned
it, (if at all,) only by enigmatical words, by unnecessary implication
and inference, by inuendo and double entendre, and under a name that
entirely fails of describing the thing. Every body must admit that the
constitution itself contains no language, from which alone any court,
that were either strangers to the prior existence of slavery, or that
did not assume its prior existence to be legal, could legally decide
that the constitution sanctioned it. And this is the true test for
determining whether the constitution does, or does not, sanction
slavery, viz: whether a court of law, strangers to the prior existence
of slavery, or not assuming its prior existence to be legal—looking only
at the naked language of the instrument—could, consistently with legal
rules, judicially determine that it sanctioned slavery. Every lawyer,
who at all deserves that name, knows that the claim for slavery could
stand no such test. The fact is palpable, that the constitution contains
no such legal sanction; that it is only by unnecessary implication and
inference, by inuendo and double-entendre, by the aid of exterior
evidence, the assumption of the prior legality of slavery, and the
gratuitous imputation of criminal intentions that are not avowed in
legal terms, that any sanction of slavery, (as a legal institution,) can
be extorted from it.
But legal rules of interpretation entirely forbid and disallow all such
implications, inferences, inuendos and double-entendre, all aid of
exterior evidence, all assumptions of the prior legality of slavery, and
all gratuitous imputations of criminal unexpressed intentions; and
consequently compel us to come back to the letter of the instrument, and
find there a distinct, clear, necessary, peremptory sanction for
slavery, or to surrender the point.
To the unprofessional reader these rules of interpretation will appear
stringent, and perhaps unreasonable and unsound. For his benefit,
therefore, the reasons on which they are founded, will be given. And he
is requested to fix both the reasons and the rules fully in his mind,
inasmuch as the whole legal meaning of the constitution, in regard to
slavery, may perhaps be found to turn upon the construction which these
rules fix upon its language.
But before giving the reasons of this rule, let us offer a few remarks
in regard to legal rules of interpretation in general. Many persons
appear to have the idea that these rules have no foundation in reason,
justice or necessity; that they are little else than whimsical and
absurd conceits, arbitrarily adopted by the courts. No idea can be more
erroneous than this. The rules are absolutely indispensable to the
administration of the justice arising out of any class of legal
instruments whatever—whether the instruments be simple contracts between
man and man, or statutes enacted by legislatures, or fundamental
compacts or constitutions of government agreed upon by the people at
large. In regard to all these instruments, the law fixes, and
necessarily must fix their meaning; and for the obvious reason, that
otherwise their meaning could not be fixed at all. The parties to the
simplest contract may disagree, or pretend to disagree, as to its
meaning, and of course as to their respective rights under it. The
different members of a legislative body, who vote for a particular
statute, may have different intentions in voting for it, and may
therefore differ, or pretend to differ, as to its meaning. The people of
a nation may establish a compact of government. The motives of one
portion may be to establish liberty, equality and justice; and they may
think, or pretend to think that the words used in the instrument convey
that idea. The motives of another portion may be to establish the
slavery or subordination of one part of the people, and the superiority
or arbitrary power of the other part; and they may think, or pretend to
think, that the language agreed upon by the whole authorizes such a
government. In all these cases, unless there were some rules of law,
applicable alike to all instruments, and competent to settle their
meaning, their meaning could not be settled; and individuals would of
necessity lose their rights under them. The law, therefore, fixes their
meaning; and the rules by which it does so, are founded in the same
justice, reason, necessity and truth, as are other legal principles, and
are for that reason as inflexible as any other legal principles
whatever. They are also simple, intelligible, natural, obvious. Every
body are presumed to know them, as they are presumed to know any other
legal principles. No one is allowed to plead ignorance of them, any more
than of any other principle of law. All persons and people are presumed
to have framed their contracts, statutes and constitutions with
reference to them. And if they have not done so—if they have said black
when they meant white, and one thing when they meant another, they must
abide the consequences. The law will presume that they meant what they
said. No one, in a court of justice, can claim any rights founded on a
construction different from that which these rules would give to the
contract, statute, or constitution, under which he claims. The judiciary
cannot depart from these rules, for two reasons. First, because the
rules embody in themselves principles of justice, reason and truth; and
are therefore as necessarily law as any other principles of justice,
reason and truth; and, secondly, because if they could lawfully depart
from them in one case, they might in another, at their own caprice.
Courts could thus at pleasure become despotic; all certainty as to the
legal meaning of instruments would be destroyed; and the administration
of justice, according to the true meaning of contracts, statutes and
constitutions, would be rendered impossible.
What, then, are some of these rules of interpretation?
One of them, (as has been before stated,) is, that where words are
susceptible of two meanings, one consistent, and the other inconsistent,
with justice and natural right, that meaning, and only that meaning,
which is consistent with right, shall be attributed to them—unless other
parts of the instrument overrule that interpretation.
Another rule, (if indeed it be not the same,) is, that no language,
except that which is peremptory, and no implication, except one that is
inevitable, shall be held to authorize or sanction any thing contrary to
natural right.
Another rule is, that no extraneous or historical evidence shall be
admitted to fix upon a statute an unjust or immoral meaning, when the
words themselves of the act are susceptible of an innocent one.
One of the reasons of these stringent and inflexible rules, doubtless
is, that judges have always known that, in point of fact, natural
justice was itself law, and that nothing inconsistent with it could be
made law, even by the most explicit and peremptory language that
legislatures could employ.—But judges have always, in this country and
in England, been dependent upon the executive and the legislature for
their appointments and salaries, and been amenable to the legislature by
impeachment. And as the executive and legislature have always enacted
more or less statutes, and had more or less purposes to accomplish, that
were inconsistent with natural right, judges have seen that it would be
impossible for them to retain their offices, and at the same time
maintain the integrity of the law against the will of those in whose
power they were. It is natural also that the executive should appoint,
and that the legislature should approve the appointment of no one for
the office of judge, whose integrity they should suppose would stand in
the way of their purposes.—The consequence has been that all judges,
(probably without exception,) though they have not dared deny, have yet
in practice yielded the vital principle of law; and have succumbed to
the arbitrary mandates of the other departments of the government, so
far as to carry out their enactments, though inconsistent with natural
right. But, as if sensible of the degradation and criminality of so
doing, they have made a stand at the first point at which they could
make it, without bringing themselves in a direct collision with those on
whom they were dependent. And that point is, that they will administer,
as law, no statute, that is contrary to natural right, unless its
language be so explicit and peremptory, that there is no way of evading
its authority, but by flatly denying the authority of those who enacted
it. They (the court) will themselves add nothing to the language of the
statute, to help out its supposed meaning. They will imply nothing,
infer nothing, and assume nothing, except what is inevitable; they will
not go out of the letter of the statute in search of any historical
evidence as to the meaning of the legislature, to enable them to
effectuate any unjust intentions not fully expressed by the statute
itself. Wherever a statute is supposed to have in view the
accomplishment of any unjust end, they will apply the most stringent
principles of construction to prevent that object’s being effected. They
will not go a hair’s breadth beyond the literal or inevitable import of
the words of the statute, even though they should be conscious, all the
while, that the real intentions of the makers of it would be entirely
defeated by their refusal. The rule, (as has been already stated,) is
laid down by the supreme court of the United States in these words:
“Where rights are infringed, where fundamental principles are
overthrown, where the general system of the law 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 et al., 2 Cranch, 390.)[18]
Such has become the settled doctrine of courts. And although it does not
come up to the true standard of law, yet it is good in itself, so far as
it goes, and ought to be unflinchingly adhered to, not merely for its
own sake, but also as a scaffolding, from which to erect that higher
standard of law, to wit, that no language or authority whatever can
legalize any thing inconsistent with natural justice.[19]
Another reason for the rules before given, against all constructions,
implications and inferences—except inevitable ones—in favor of
injustice, is, that but for them we should have no guaranty that our
honest contracts, or honest laws would be honestly administered by the
judiciary. It would be nearly or quite impossible for men, in framing
their contracts or laws, to use language so as to exclude every possible
implication in favor of wrong, if courts were allowed to resort to such
implications. The law therefore excludes them; that is, the ends of
justice—the security of men’s rights under their honest contracts, and
under honest legislative enactments—make it imperative upon courts of
justice to ascribe an innocent and honest meaning to all language that
will possibly bear an innocent and honest meaning. If courts of justice
could depart from this rule for the purpose of upholding what was
contrary to natural right, and could employ their ingenuity in spying
out some implied or inferred authority, for sanctioning what was in
itself dishonest or unjust, when such was not the necessary meaning of
the language used, there could be no security whatever for the honest
administration of honest laws, or the honest fulfilment of men’s honest
contracts. Nearly all language, on the meaning of which courts
adjudicate, would be liable, at the caprice of the court, to be
perverted from the furtherance of honest, to the support of dishonest
purposes. Judges could construe statutes and contracts in favor of
justice or injustice, as their own pleasure might dictate.
Another reason of the rules, is, that as governments have, and can have
no legitimate objects or powers opposed to justice and natural right, it
would be treason to all the legitimate purposes of government, for the
judiciary to give any other than an honest and innocent meaning to any
language, that would bear such a construction.
The same reasons that forbid the allowance of any unnecessary
implication or inference in favor of a wrong, in the construction of a
statute, forbids also the introduction of any extraneous or historical
evidence to prove that the intentions of the legislature were to
sanction or authorize a wrong.
The same rules of construction, that apply to statutes, apply also to
all those private contracts between man and man, which courts actually
enforce. But as it is both the right and the duty of courts to
invalidate altogether such private contracts as are inconsistent with
justice, they will admit evidence exterior to their words, if offered by
a defendant for the purpose of invalidating them. At the same time, a
plaintiff, or party that wishes to set up a contract, or that claims its
fulfilment, will not be allowed to offer any evidence exterior to its
words, to prove that the contract is contrary to justice—because, if his
evidence were admitted, it would not make his unjust claim a legal one;
but only invalidate it altogether. But as courts do not claim the right
of invalidating statutes and constitutions, they will not admit
evidence, exterior to their language, to give them such a meaning, that
they ought to be invalidated.
I think no one—no lawyer, certainly—will now deny that it is a legal
rule of interpretation—that must be applied to all statutes, and also to
all private contracts that are to be enforced—that an innocent meaning,
and nothing beyond an innocent meaning, must be given to all language
that will possibly bear such a meaning. All will probably admit that the
rule, as laid down by the supreme court of the United States, is
correct, to wit, that “where rights are infringed, where fundamental
principles are overthrown, where the general system of the law 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.”
But perhaps it will be said that these rules, which apply to all
statutes, and to all private contracts that are to be enforced, do not
apply to the constitution. And why do they not? No reason whatever can
be given. A constitution is nothing but a contract, entered into by the
mass of the people, instead of a few individuals. This contract of the
people at large becomes a law unto the judiciary that administer it,
just as private contracts, (so far as they are consistent with natural
right,) are laws unto the tribunals that adjudicate upon them. All the
essential principles that enter into the question of obligation, in the
case of a private contract, or a legislative enactment, enter equally
into the question of the obligation of a contract agreed to by the whole
mass of the people. This is too self-evident to need illustration.
Besides, is it not as important to the safety and rights of all
interested, that a constitution or compact of government, established by
a whole people, should be so construed as to promote the ends of
justice, as it is that a private contract or a legislative enactment
should be thus construed? Is it not as necessary that some check should
be imposed upon the judiciary to prevent them from perverting, at
pleasure, the whole purpose and character of the government, as it is
that they should be restrained from perverting the meaning of a private
contract, or a legislative enactment? Obviously written compacts of
government could not be upheld for a day, if it were understood by the
mass of the people that the judiciary were at liberty to interpret them
according to their own pleasure, instead of their being restrained by
such rules as have now been laid down.
Let us now look at some of the provisions of the constitution, and see
what crimes might be held to be authorized by them, if their meaning
were not to be ascertained and restricted by such rules of
interpretation as apply to all other legal instruments.
The second amendment to the constitution declares that “the right of the
people to keep and bear arms shall not be infringed.”
This right “to keep and bear arms,” implies the right to use them—as
much as a provision securing to the people the right to buy and keep
food, would imply their right also to eat it. But this implied right to
use arms, is only a right to use them in a manner consistent with
natural rights—as, for example, in defence of life, liberty, chastity,
&c. Here is an innocent and just meaning, of which the words are
susceptible; and such is therefore the extent of their legal meaning. If
courts could go beyond the innocent and necessary meaning of the words,
and imply or infer from them an authority for anything contrary to
natural right, they could imply a constitutional authority in the people
to use arms, not merely for the just and innocent purposes of defence,
but also for the criminal purposes of aggression—for purposes of murder,
robbery, or any other acts of wrong to which arms are capable of being
applied. The mere verbal implication would as much authorize the people
to use arms for unjust, as for just, purposes. But the legal implication
gives only an authority for their innocent use. And why? Simply because
justice is the end of all law—the legitimate end of all compacts of
government. It is itself law; and there is no right or power among men
to destroy its obligation.
Take another case. The constitution declares that “Congress shall have
power to regulate commerce with foreign nations, and among the several
states, and with the Indian tribes.”
This power has been held by the supreme court to be an exclusive one in
the general government—and one that cannot be controlled by the states.
Yet it gives congress no constitutional authority to legalize any
commerce inconsistent with natural justice between man and man; although
the mere verbal import of the words, if stretched to their utmost
tension in favor of the wrong, would authorize congress to legalize a
commerce in poisons and deadly weapons, for the express purpose of
having them used in a manner inconsistent with natural right—as for the
purposes of murder.
At natural law, and on principles of natural right, a person, who should
sell to another a weapon or a poison, knowing that it would, or
intending that it should be used for the purpose of murder, would be
legally an accessary to the murder that should be committed with it. And
if the grant to congress of a “power to regulate commerce,” can be
stretched beyond the innocent meaning of the words—beyond the power of
regulating and authorizing a commerce that is consistent with natural
justice—and be made to cover every thing, intrinsically criminal, that
can be perpetrated under the name of commerce—then congress have the
authority of the constitution for granting to individuals the liberty of
bringing weapons and poisons from “foreign nations” into this, and from
one state into another, and selling them openly for the express purposes
of murder, without any liability to legal restraint or punishment.
Can any stronger cases than these be required to prove the necessity,
the soundness, and the inflexibility of that rule of law, which requires
the judiciary to ascribe an innocent meaning to all language that will
possibly bear an innocent meaning? and to ascribe only an innocent
meaning to language whose mere verbal import might be susceptible of
both an innocent and criminal meaning? If this rule of interpretation
could be departed from, there is hardly a power granted to congress,
that might not lawfully be perverted into an authority for legalizing
crimes of the highest grade.
In the light of these principles, then, let us examine those clauses of
the constitution, that are relied on as recognizing and sanctioning
slavery. They are but three in number.
The one most frequently quoted is the third clause of Art. 4, Sec. 2, in
these words:
“No person, held to service or labor in one state, under the laws
thereof, escaping into another, shall in consequence of any law or
regulation therein, be discharged from such service or labor; but shall
be delivered up on claim of the party to whom such service or labor may
be due.”
There are several reasons why this clause renders no sanction to
slavery.
1. It must be construed, if possible, as sanctioning nothing contrary to
natural right.
If there be any “service or labor” whatever, to which any “persons”
whatever may be “held,” consistently with natural right, and which any
person may, consistently with natural right, “claim” as his “due” of
another, such “service or labor,” and only such, is recognized and
sanctioned by this provision.
It needs no argument to determine whether the “service or labor,” that
is exacted of a slave, is such as can be “claimed,” consistently with
natural right, as being “due” from him to his master. And if it cannot
be, some other “service or labor” must, if possible, be found for this
clause to apply to.
The proper definition of the word “service,” in this case, obviously is,
the labor of a servant. And we find, that at and before the adoption of
the constitution, the persons recognized by the state laws as
“servants,” constituted a numerous class. The statute books of the
states abounded with statutes in regard to “servants.” Many seem to have
been indented as servants by the public authorities, on account of their
being supposed incompetent, by reason of youth and poverty, to provide
for themselves. Many were doubtless indented as apprentices by their
parents and guardians, as now. The English laws recognized a class of
servants—and many persons were brought here from England, in that
character, and retained that character afterward. Many indented or
contracted themselves as servants for the payment of their passage money
to this country. In these various ways, the class of persons, recognized
by the statute books of the states as “servants,” was very numerous; and
formed a prominent subject of legislation. Indeed, no other evidence of
their number is necessary than the single fact, that “persons bound to
service for a term of years,” were specially noticed by the constitution
of the United States, (Art. 1, Sec. 2,) which requires that they be
counted as units in making up the basis of representation. There is
therefore not the slightest apology for pretending that there was not a
sufficient class for the words “service or labor” to refer to, without
supposing the existence of slaves.[20]
2. “Held to service or labor,” is no legal description of slavery.
Slavery is property in man. It is not necessarily attended with either
“service or labor.” A very considerable portion of the slaves are either
too young, too old, too sick, or too refractory to render “service or
labor.” As a matter of fact, slaves, who are able to labor, may, in
general, be compelled by their masters to do so. Yet labor is not an
essential or necessary condition of slavery. The essence of slavery
consists in a person’s being owned as property—without any reference to
the circumstances of his being compelled to labor, or of his being
permitted to live in idleness, or of his being too young, or too old, or
too sick to labor.
If “service or labor” were either a test, or a necessary attendant of
slavery, that test would of itself abolish slavery; because all slaves,
before they can render “service or labor,” must have passed through the
period of infancy, when they could render neither service nor labor, and
when, therefore, according to this test, they were free. And if they
were free in infancy, they could not be subsequently enslaved.
3. “Held to service or labor in one state, under the laws thereof.”
The “laws” take no note of the fact whether a slave “labors,” or not.
They recognize no obligation, on his part, to labor. They will enforce
no “claim” of a master, upon his slave, for “service or labor.” If the
slave refuse to labor, the law will not interfere to compel him. The law
simply recognizes the master’s right of property in the slave—just as it
recognizes his right of property in a horse. Having done that, it leaves
the master to compel the slave, if he please, and if he can—as he would
compel a horse—to labor. If the master do not please, or be not able, to
compel the slave to labor, the law takes no more cognizance of the case
than it does of the conduct of a refractory horse. In short, it
recognizes no obligation, on the part of the slave, to labor, if he can
avoid doing so. It recognizes no “claim,” on the part of the master,
upon his slave, for “services or labor,” as “due” from the latter to the
former.
4. Neither “service” nor “labor” is necessarily slavery; and not being
necessarily slavery, the words cannot, in this case, be strained beyond
their necessary meaning, to make them sanction a wrong. The law will not
allow words to be strained a hair’s breadth beyond their necessary
meaning, to make them authorize a wrong. The stretching, if there be
any, must always be towards the right. The words “service or labor” do
not necessarily, nor in their common acceptation, so much as suggest the
idea of slavery—that is, they do not suggest the idea of the laborer or
servant being the property of the person for whom he labors. An indented
apprentice serves and labors for another. He is “held” to do so, under a
contract, and for a consideration, that are recognized, by the laws, as
legitimate, and consistent with natural right. Yet he is not owned as
property. A condemned criminal is “held to labor”—yet he is not owned as
property. The law allows no such straining of the meaning of words
towards the wrong, as that which would convert the words “service or
labor” (of men) into property in man—and thus make a man, who serves or
labors for another, the property of that other.
5. “No person held to service or labor, in one state, under the laws
thereof.”
The “laws,” here mentioned, and impliedly sanctioned, are, of course,
only constitutional laws—laws, that are consistent, both with the
constitution of the state, and the constitution of the United States.
None others are “laws,” correctly speaking, however they may attempt to
“hold persons to service or labor,” or however they may have the forms
of laws on the statute books.
This word “laws,” therefore, being a material word, leaves the whole
question just where it found it—for it certainly does not, of itself—nor
indeed does any other part of the clause—say that acts of a legislature,
declaring one man to be the property of another, is a “law” within the
meaning of the constitution. As far as the word “laws” says any thing on
the subject, it says that such acts are not laws—for such acts are
clearly inconsistent with natural law—and it yet remains to be shown
that they are consistent with any constitution whatever, state or
national.
The burden of proof, then, still rests upon the advocates of slavery, to
show that an act of a state legislature, declaring one man to be the
property of another, is a “law,” within the meaning of this clause. To
assert simply that it is, without proving it to be so, is a mere begging
of the question—for that is the very point in dispute.
The question, therefore, of the constitutionality of the slave acts must
first be determined, before it can be decided that they are “laws”
within the meaning of the constitution. That is, they must be shown to
be consistent with the constitution, before they can be said to be
sanctioned as “laws” by the constitution. Can any proposition be plainer
than this? And yet the reverse must be assumed, in this case, by the
advocates of slavery.
The simple fact, that an act purports to “hold persons to service or
labor,” clearly cannot, of itself, make the act constitutional. If it
could, any act, purporting to hold “persons to service or labor,” would
necessarily be constitutional, without any regard to the “persons” so
held, or the conditions on which they were held. It would be
constitutional, solely because it purported to hold persons to service
or labor. If this were the true doctrine, any of us, without respect of
persons, might be held to service or labor, at the pleasure of the
legislature. And then, if “service or labor” mean slavery, it would
follow that any of us, without discrimination, might be made slaves. And
thus the result would be, that the acts of a legislature would be
constitutional, solely because they made slaves of the people. Certainly
this would be a new test of the constitutionality of laws.
All the arguments in favor of slavery, that have heretofore been drawn
from this clause of the constitution, have been founded on the
assumption, that if an act of a legislature did but purport to “hold
persons to service or labor”—no matter how, on what conditions, or for
what cause—that fact alone was sufficient to make the act
constitutional. The entire sum of the argument, in favor of slavery, is
but this, viz. the constitution recognizes the constitutionality of
“laws” that “hold persons to service or labor,”—slave acts “hold persons
to service or labor,”—therefore slave acts must be constitutional. This
profound syllogism is the great pillar of slavery in this country. It
has, (if we are to judge by results,) withstood the scrutiny of all the
legal acumen of this nation for fifty years and more. If it should
continue to withstand it for as many years as it has already done, it
will then be time to propound the following, to wit: The state
constitutions recognize the right of men to acquire property; theft,
robbery, and murder are among the modes in which property may be
acquired; therefore theft, robbery, and murder are recognized by these
constitutions as lawful.
No doubt the clause contemplates that there may be constitutional
“laws,” under which persons may be “held to service or labor.” But it
does not follow, therefore, that every act, that purports to hold
“persons to service or labor,” is constitutional.
We are obliged, then, to determine whether a statute be constitutional,
before we can determine whether the “service or labor” required by it,
is sanctioned by the constitution as being lawfully required. The simple
fact, that the statute would “hold persons to service or labor,” is, of
itself, no evidence, either for or against its constitutionality.
Whether it be or be not constitutional, may depend upon a variety of
contingencies—such as the kind of service or labor required, and the
conditions on which it requires it. Any service or labor, that is
inconsistent with the duties which the constitution requires of the
people, is of course not sanctioned by this clause of the constitution
as being lawfully required. Neither, of course, is the requirement of
service or labor, on any conditions, that are inconsistent with any
rights that are secured to the people by the constitution, sanctioned by
the constitution as lawful. Slave laws, then, can obviously be held to
be sanctioned by this clause of the constitution, only by gratuitously
assuming, 1^(st), that the constitution neither confers any rights, nor
imposes any duties, upon the people of the United States, inconsistent
with their being made slaves; and, 2d, that it sanctions the general
principle of holding “persons to service or labor” arbitrarily, without
contract, without compensation, and without the charge of crime. If this
be really the kind of constitution that has been in force since 1789, it
is somewhat wonderful that there are so few slaves in the country. On
the other hand, if the constitution be not of this kind, it is equally
wonderful that we have any slaves at all—for the instrument offers no
ground for saying that a colored man may be made a slave, and a white
man not.
Again. Slave acts were not “laws” according to any state constitution
that was in existence at the time the constitution of the United States
was adopted. And if they were not “laws” at that time, they have not
been made so since.
6. The constitution itself, (Art. 1. Sec. 2,) in fixing the basis of
representation, has plainly denied that those described in Art. 4, as
“persons held to service or labor,” are slaves,—for it declares that
“persons bound to service for a term of years” shall be “included” in
the “number of free persons.” There is no legal difference between being
“bound to service,” and being “held to service or labor.” The addition,
in the one instance, of the words, “for a term of years,” does not alter
the case, for it does not appear that, in the other, they are “held to
service or labor” beyond a fixed term—and, in the absence of evidence
from the constitution itself, the presumption must be that they are
not—because such a presumption makes it unnecessary to go out of the
constitution to find the persons intended, and it is also more
consistent with the prevalent municipal, and with natural law.
And it makes no difference to this result, whether the word “free,” in
the first article, be used in the political sense common at that day, or
as the correlative of slavery. In either case, the persons described as
“free,” could not be made slaves.
7. The words “service or labor” cannot be made to include slavery,
unless by reversing the legal principle, that the greater includes the
less, and holding that the less includes the greater; that the innocent
includes the criminal; that a sanction of what is right, includes a
sanction of what is wrong.
Another clause relied on as a recognition of the constitutionality of
slavery, is the following, (Art. 1. Sec. 2.):
“Representatives and direct taxes shall be apportioned among the several
states, which may be included within this union, according to their
respective numbers, which shall be determined by adding to the whole
number of free persons, including those bound to service for a term of
years, and excluding Indians not taxed, three-fifths of all other
persons.”
The argument claimed from this clause, in support of slavery, rests
entirely upon the word “free,” and the words “all other persons.” Or
rather it rests entirely upon the meaning of the word “free,” for the
application of the words “all other persons” depends upon the meaning
given to the word “free.” The slave argument assumes, gratuitously, that
the word “free” is used as the correlative of slavery and thence it
infers that the words, “all other persons,” mean slaves.
It is obvious that the word “free” affords no argument for slavery,
unless a meaning correlative with slavery be arbitrarily given to it,
for the very purpose of making the constitution sanction or recognize
slavery. Now it is very clear that no such meaning can be given to the
word, for such a purpose. The ordinary meaning of a word cannot be thus
arbitrarily changed, for the sake of sanctioning a wrong. A choice of
meaning would be perfectly allowable, and even obligatory, if made for
the purpose of avoiding any such sanction; but it is entirely
inadmissable for the purpose of giving it. The legal rules of
interpretation, heretofore laid down, imperatively require this
preference of the right, over the wrong, in all cases where a word is
susceptible of different meanings.
The English law had for centuries used the word “free” as describing
persons possessing citizenship, or some other franchise or peculiar
privilege—as distinguished from aliens, and persons not possessed of
such franchise or privilege. This law, and this use of the word “free,”
as has already been shown, had been adopted in this country from its
first settlement. The colonial charters all, (probably without an
exception,) recognized it. The colonial legislation generally, if not
universally, recognized it. The state constitutions, in existence at the
time the constitution of the United States was formed and adopted, used
the word in this sense, and no other. The Articles of Confederation—the
then existing national compact of union—used the word in this sense, and
no other. The sense is an appropriate one in itself; the most
appropriate to, and consistent with the whole character of the
constitution, of any of which the word is susceptible. In fact, it is
the only one that is either appropriate to, or consistent with, the
other parts of the instrument. Why, then, is it not the legal meaning?
Manifestly it is the legal meaning. No reason whatever can be given
against it, except that, if such be its meaning, the constitution will
not sanction slavery! A very good reason—a perfectly unanswerable
reason, in fact—in favor of this meaning; but a very futile one against
it.
It is evident that the word “free” is not used as the correlative of
slavery, because “Indians not taxed” are “excluded” from its
application—yet they are not therefore slaves.
Again. The word “free” cannot be presumed to be used as the correlative
of slavery—because slavery then had no legal existence. The word must
obviously be presumed to be used as the correlative of something that
did legally exist, rather than of something that did not legally exist.
If it were used as the correlative of something that did not legally
exist, the words “all other persons” would have no legal application.
Until, then, it be shown that slavery had a legal existence, authorized
either by the United States constitution, or by the then existing state
constitutions—a thing that cannot be shown—the word “free” certainly
cannot be claimed to have been used as its correlative.
But even if slavery had been authorized by the state constitutions, the
word “free,” in the United States constitution, could not have been
claimed to have been used as its correlative, unless it had appeared
that the United States constitution had itself provided or suggested no
correlative of the word “free;” for it would obviously be absurd and
inadmissible to go out of an instrument to find the intended correlative
of one of its own words, when it had itself suggested one. This the
constitution of the United States has done, in the persons of aliens.
The power of naturalization is, by the constitution, taken from the
states, and given exclusively to the United States. The constitution of
the United States, therefore, necessarily supposes the existence of
aliens—and thus furnishes the correlative sought for. It furnishes a
class both for the word “free,” and the words “all other persons” to
apply to. And yet the slave argument contends that we must overlook
these distinctions, necessarily growing out of the laws of the United
States, and go out of the constitution of the United States to find
persons whom it describes as the “free,” and “all other persons.” And
what makes the argument the more absurd is, that by going out of the
instrument to the then existing state constitutions—the only instruments
to which we can go—we can find there no other persons for the words to
apply to—no other classes answering to the description of the “free
persons” and “all other persons,”—than the very classes suggested by the
United States constitution itself, to wit, citizens and aliens; (for it
has previously been shown that the then existing state constitutions
recognized no such persons as slaves.)
If we are obliged, (as the slave argument claims we are,) to go out of
the constitution of the United States to find the class whom it
describes as “all other persons” than “the free,” we shall, for aught I
see, be equally obliged to go out of it to find those whom it describes
as the “free”—for “the free,” and “all other persons” than “the free,”
must be presumed to be found described somewhere in the same instrument.
If, then, we are obliged to go out of the constitution to find the
persons described in it as “the free” and “all other persons,” we are
obliged to go out of it to ascertain who are the persons on whom it
declares that the representation of the government shall be based, and
on whom, of course, the government is founded. And thus we should have
the absurdity of a constitution that purports to authorize a government,
yet leaves us to go in search of the people who are to be represented in
it. Besides, if we are obliged to go out of the constitution, to find
the persons on whom the government rests, and those persons are
arbitrarily prescribed by some other instrument, independent of the
constitution, this contradiction would follow, viz., that the United
States government would be a subordinate government—a mere appendage to
something else—a tail to some other kite—or rather a tail to a large
number of kites at once—instead of being, as it declares itself to be,
the supreme government—its constitution and laws being the supreme law
of the land.
Again. It certainly cannot be admitted that we must go out of the United
States constitution to find the classes whom it describes as “the free,”
and “all other persons” than “the free,” until it be shown that the
constitution has told us where to go to find them. In all other cases,
(without an exception, I think,) where the constitution makes any of its
provisions dependent upon the state constitutions, or state
legislatures, it has particularly described them as depending upon them.
But it gives no intimation that it has left it with the state
constitutions, or the state legislatures, to prescribe whom it means by
the terms “free persons” and “all other persons,” on whom it requires
its own representation to be based. We have, therefore, no more
authority from the constitution of the United States, for going to the
state constitutions, to find the classes described in the former as the
“free persons” and “all other persons,” than we have for going to Turkey
or Japan. We are compelled, therefore, to find them in the constitution
of the United States itself, if any answering to the description can
possibly be found there.
Again. If we were permitted to go to the state constitutions, or to the
state statute books, to find who were the persons intended by the
constitution of the United States; and if, as the slave argument
assumes, it was left to the states respectively to prescribe who should,
and who should not, be “free” within the meaning of the constitution of
the United States, it would follow that the terms “free” and “all other
persons,” might be applied in as many different ways, and to as many
different classes of persons, as there were different states in the
union. Not only so, but the application might also be varied at pleasure
in the same state. One inevitable consequence of this state of things
would be, that there could be neither a permanent, nor a uniform basis
of representation throughout the country. Another possible, and even
probable consequence would be, such inextricable confusion, as to the
persons described by the same terms in the different states, that
Congress could not apportion the national representation at all, in the
manner required by the constitution. The questions of law, arising out
of the different uses of the word “free,” by the different states, might
be made so endless and inexplicable, that the state governments might
entirely defeat all the power of the general government to make an
apportionment.
If the slave construction be put upon this clause, still another
difficulty, in the way of making an apportionment, would follow, viz.,
that congress could have no legal knowledge of the persons composing
each of the two different classes, on which its representation must be
based; for there is no legal record—known to the laws of the United
States, or even to the laws of the states—of those who are slaves, or
those who are not. The information obtained by the census takers, (who
have no legal records to go to,) must, in the nature of things, be of
the most loose and uncertain character, on such points as these. Any
accurate or legal knowledge on the subject is, therefore, obviously
impossible. But if the other construction be adopted, this difficulty is
avoided—for congress then have the control of the whole matter, and may
adopt such means as may be necessary for ascertaining accurately the
persons who belong to each of these different classes. And by their
naturalization laws they actually do provide for a legal record of all
who are made “free” by naturalization.
And this consideration of certainty, as to the individuals and numbers
belonging to each of these two classes, “free” and “all other persons,”
acquires an increased and irresistible force, when it is considered that
these different classes of persons constitute also different bases for
taxation, as well as representation. The requirement of the constitution
is, that “representatives and direct taxes shall be apportioned,” &c.,
according to the number of “free persons” and “all other persons.” In
reference to so important a subject as taxation, accurate and legal
knowledge of the persons and numbers belonging to the different classes,
becomes indispensable. Yet under the slave construction this legal
knowledge becomes impossible. Under the other construction it is as
perfectly and entirely within the power of congress, as, in the nature
of things, such a subject can be—for naturalization is a legal process;
and legal records, prescribed by congress, may be, and actually are,
preserved of all the persons naturalized or made “free” by their laws.
If we adopt that meaning of the word “free,” which is consistent with
freedom—that meaning which is consistent with natural right—the meaning
given to it by the Articles of Confederation, by the then existing state
constitutions, by the colonial charters, and by the English law ever
since our ancestors enjoyed the name of freemen, all these difficulties,
inconsistencies, contradictions and absurdities, that must otherwise
arise, vanish. The word “free” then describes the native and naturalized
citizens of the United States, and the words “all other persons”
describe resident aliens, “Indians not taxed,” and possibly some others.
The representation is then placed upon the best, most just, and most
rational basis that the words used can be made to describe. The
representation also becomes equal and uniform throughout the country.
The principle of distinction between the two bases, becomes also a
stable, rational and intelligible one—one too necessarily growing out of
the exercise of one of the powers granted to congress;—one, too, whose
operation could have been foreseen and judged of by the people who
adopted the constitution—instead of one fluctuating with the ever
changing and arbitrary legislation of the various states, whose mode and
motives of action could not have been anticipated. Adopt this definition
of the word “free,” and the same legislature, (that is, the national
one,) that is required by the constitution to apportion the
representation according to certain principles, becomes invested—as it
evidently ought to be, and as it necessarily must be, to be
efficient—with the power of determining, by their own (naturalization)
laws, who are the persons composing the different bases on which its
apportionment is to be made; instead of being, as they otherwise would
be, obliged to seek for these persons through all the statute books of
all the different states of the union, and through all the evidences of
private property, under which one of these classes might be held. Adopt
this definition of the word “free,” and the United States government
becomes, so far at least as its popular representation—which is its most
important feature—is concerned, an independent government, subsisting by
its own vigor, and pervaded throughout by one uniform principle. Reject
this definition, and the popular national representation, loses at once
its nationality, and becomes a mere dependency on the will of local
corporations—a mere shuttlecock to be driven hither and thither by the
arbitrary and conflicting legislation of an indefinite number of
separate states. Adopt this meaning of the word “free,” and the national
government becomes capable of knowing its own bases of representation
and power, and its own subjects of taxation. Reject this definition, and
the government knows not whom it represents, or on whom to levy taxes
for its support. Adopt this meaning of the word “free,” and some three
millions of native born, but now crushed human beings, become, with
their posterity, men and citizens. Adopt this meaning—this legal
meaning—this only meaning that can, in this clause, be legally given to
the word “free,” and our constitution becomes, instead of a nefarious
compact of conspirators against the rights of man, a consistent and
impartial contract of government between all “the people of the United
States,” for securing “to themselves and their posterity the blessings
of liberty” and “justice.”
Again. We cannot unnecessarily place upon the constitution a meaning
directly destructive of the government it was designed to establish. By
giving to the word “free” the meaning universally given to it by our
political papers of a similar character up to the time the constitution
was adopted, we give to the government three millions of citizens, ready
to fight and be taxed for its support. By giving to the word “free” a
meaning correlative with slavery, we locate in our midst three millions
of enemies; thus making a difference of six millions, (one third of our
whole number,) in the physical strength of the nation. Certainly a
meaning so suicidal towards the government, cannot be given to any part
of the constitution, except the language be irresistibly explicit; much
less can it be done, (as in this case it would be,) wantonly,
unnecessarily, gratuitously, wickedly, and in violation of all previous
usage.
Again. If we look into the constitution itself for the meaning of the
word “free,” we find it to result from the distinction there recognized
between citizens and aliens. If we look into the contemporary state
constitutions, we still find the word “free” to express the political
relation of the individual to the state, and not any property relation
of one individual to another. If we look into the law of nature for the
meaning of the word “free,” we find that by that law all mankind are
free. Whether, therefore, we look to the constitution itself, to the
contemporary state constitutions, or to the law of nature, for the
meaning of this word “free,” the only meaning we shall find is one
consistent with the personal liberty of all. On the other hand, if we
are resolved to give the word a meaning correlative with slavery, we
must go to the lawless code of the kidnapper to find such a meaning.
Does it need any argument to prove to which of these different codes our
judicial tribunals are bound to go, to find the meaning of the words
used in a constitution, that is established professedly to secure
liberty and justice?
Once more. It is altogether a false, absurd, violent, unnatural and
preposterous proceeding, in construing a political paper, which purports
to establish men’s relations to the state, and especially in construing
the clause in it which fixes the basis of representation and taxation,
to give to the words, which describe the persons to be represented and
taxed, and which appropriately indicate those relations of men to the
state which make them proper subjects of taxation and representation—to
give to such words a meaning, which, instead of describing men’s
relations to the state, would describe merely a personal or property
relation of one individual to another, which the state has nowhere else
recognized, and which, if admitted to exist, would absolve the persons
described from all allegiance to the state, would deny them all right to
be represented, and discharge them from all liability to be taxed.
But it is unnecessary to follow out this slave argument into all its
ramifications. It sets out with nothing but assumptions, that are
gratuitous, absurd, improbable, irrelevant, contrary to all previous
usage, contrary to natural right, and therefore inadmissible. It
conducts to nothing but contradictions, absurdities, impossibilities,
indiscriminate slavery, anarchy, and the destruction of the very
government which the constitution was designed to establish.
The other clause relied on as a recognition and sanction, both of
slavery and the slave trade, is the following:
“The migration or importation of such persons as any of the states now
existing shall think proper to admit, shall not be prohibited by the
congress prior to the year one thousand eight hundred and eight, but a
tax or duty may be imposed on such importation, not exceeding ten
dollars for each person.”—(Art. 1, Sec. 9.)
The slave argument, drawn from this clause, is, that the word
“importation” applies only to property, and that it therefore implies,
in this clause, that the persons to be imported are necessarily to be
imported as property—that is, as slaves.
But the idea that the word “importation” applies only to property, is
erroneous. It applies correctly both to persons and things. The
definition of the verb “import” is simply “to bring from a foreign
country, or jurisdiction, or from another state, into one’s own country,
jurisdiction or state.”—When we speak of “importing” things, it is true
that we mentally associate with them the idea of property. But that is
simply because things are property, and not because the word “import”
has any control, in that particular, over the character of the things
imported. When we speak of importing “persons,” we do not associate with
them the idea of property, simply because “persons” are not property.
We speak daily of the “importation of foreigners into the country;” but
no one infers therefrom that they are brought in as slaves, but as
passengers. A vessel imports, or brings in, five hundred passengers.
Every vessel, or master of a vessel, that “brings in” passengers,
“imports” them. But such passengers are not therefore slaves. A man
imports his wife and children—but they are not therefore his slaves, or
capable of being owned or sold as his property. A man imports a gang of
laborers, to clear lands, cut canals, or construct railroads; but not
therefore to be held as slaves. An innocent meaning must be given to the
word, if it will bear one. Such is the legal rule.
Even the popular understanding of the word “import,” when applied to
“persons,” does not convey the idea of property. It is only when it is
applied distinctly to “slaves,” that any such idea is conveyed; and then
it is the word “slaves,” and not the word “import,” that suggests the
idea of property. Even slave traders and slave holders attach no such
meaning to the word “import,” when it is connected with the word
“persons;” but only when it is connected with the word “slaves.”
In the case of Ogden vs. Saunders, (12 Wheaton, 332,) Chief Justice
Marshall said, that in construing the constitution, “the intention of
the instrument must prevail; that this intention must be collected from
its words; that its words are to be understood in that sense in which
they are generally used by those for whom the instrument was intended.”
On this principle of construction, there is not the least authority for
saying that this provision for “the importation of persons,” authorized
the importation of them as slaves. To give it this meaning, requires the
same stretching of words towards the wrong, that is applied, by the
advocates of slavery, to the words “service or labor,” and the words
“free” and “all other persons.”
Another reason, which makes it necessary that this construction should
be placed upon the word “importation,” is, that the clause contains no
other word that describes the immigration of foreigners. Yet that the
clause related to the immigration of foreigners generally, and that it
restrained congress, (up to the year 1808,) from prohibiting the
immigration of foreigners generally, there can be no doubt.
The object, and the only legal object, of the clause was to restrain
congress from so exercising their “power of regulating commerce with
foreign nations, and among the several states, and with the Indian
tribes”—(which power has been decided by the supreme court of the United
States, to include a power over navigation and the transportation of
passengers in boats and vessels[21])—as to obstruct the introduction of
new population into such of the states as were desirous of increasing
their population in that manner. The clause does not imply at all, that
the population, which the states were thus to “admit,” was to be a slave
population.
The word “importation,” (I repeat,) is the only word in the clause, that
applies to persons that were to come into the country from foreign
nations. The word “migration” applies only to those who were to go out
from one of our own states or territories into another. “Migration” is
the act of going out from a state or country; and differs from
immigration in this, that immigration is the act of coming into a state
or country. It is obvious, therefore, that the “migration,” which
congress are here forbidden to prohibit, is simply the going out of
persons from one of our own states or territories into another—(for that
is the only “migration” that could come within the jurisdiction of
congress)—and that it has no reference to persons coming in from foreign
countries to our own.
If, then, “migration,” as here used, has reference only to persons going
out from one state into another, the word “importation” is the only one
in the clause that is applicable to foreigners coming into our country.
This word “importation,” then, being the only word that can apply to
persons coming into the country, it must be considered as substantially
synonymous with immigration, and must apply equally to all “persons,”
that are “imported,” or brought into the country as passengers. And if
it applies equally to all persons, that are brought in as passengers, it
does not imply that any of those persons are slaves; for no one will
pretend that this clause ever authorized the state governments to treat
as slaves all persons that were brought into the country as passengers.
And if it did not authorize them to treat all such passengers as slaves,
it did not authorize them to treat any of them as such; for it makes no
discrimination between the different “persons” that should be thus
imported.
Again. The argument, that the allowance of the “importation” of
“persons,” implies the allowance of property in such persons, would
imply a recognition of the validity of the slave laws of other
countries; for unless slaves were obtained by valid purchase
abroad—which purchase implies the existence and validity of foreign
slave laws—the importer certainly could not claim to import his slaves
as property; but he would appear, at the custom-house, as a mere pirate,
claiming to have his captures legalized. So that, according to the slave
argument, the simple use of the word “importation,” in the constitution,
as applied to “persons,” bound our government, not only to the sanction
and toleration of slavery in our own country, but to the recognition of
the validity of the slave laws of other countries.
But farther. The allowance of the “importation” of slaves, as such,
under this clause of the constitution, would imply that congress must
take actual, and even the most critical cognizance of the slave laws of
other countries; and that they should allow neither the mere word of the
person calling himself the owner, nor any thing short of the fullest and
clearest legal proof, according to the laws of those countries, to be
sufficient to enable him to enter his slaves, as property, at the
custom-house; otherwise any masters of vessels, from England or France,
as well as from Africa, might, on their arrival here, claim their
passengers as slaves. Did the constitution, in this clause, by simply
using the word “importation,” instead of immigration, intend to throw
upon the national government—at the hazard of making it a party to the
illegal enslavement of human beings—the responsibility of investigating
and deciding upon the legality and credibility of all the evidence that
might be offered by the piratical masters of slave ships, to prove their
valid purchase of, and their right of property in their human cargoes,
according to the slave laws of the countries from which they should
bring them? Such must have been the intention of the constitution, if it
intended, (as it must, if it intended any thing of this kind,) that the
fact of “importation” under the commercial regulations of congress,
should be thereafter a sufficient authority for holding in slavery the
persons imported.
But perhaps it will be said that it was not the intention of the
constitution, that congress should take any responsibility at all in the
matter; that it was merely intended that whoever came into the country
with a cargo of men, whom he called his slaves, should be permitted to
bring them in on his own responsibility, and sell them as slaves for
life to our people; and that congress were prohibited only from
interfering, or asking any questions as to how he obtained them, or how
they became his slaves. Suppose such were the intention of the
constitution—what follows? Why, that the national government, the only
government that was to be known to foreign nations, the only government
that was to be permitted to regulate our commerce, or make treaties with
foreign nations, the government on whom alone was to rest the
responsibility of war with foreign nations, was bound to permit, (until
1808,) all masters, both of our own ships and of the ships of other
nations, to turn pirates, and make slaves of their passengers, whether
Englishmen, Frenchmen, or any other civilized people, (for the
constitution makes no distinction of “persons” on this point,) bring
them into this country, sell them as slaves for life to our people, and
thus make our country a rendezvous and harbor for pirates, involve us
inevitably in war with every civilized nation in the world, cause
ourselves to be outlawed as a people, and bring certain and swift
destruction upon the whole nation; and yet this government, that had the
sole responsibility of all our foreign relations, was constitutionally
prohibited from interfering in the matter, or from doing any thing but
lifting its hands in prayer to God and these pirates, that the former
would so far depart, and the latter so far desist from their usual
courses, as might be necessary to save us, until 1808, (after which time
we would take the matter into our own hands, and, by prohibiting the
causes of the danger, save ourselves,) from the just vengeance, which
the rest of mankind were taking upon us.
This is the kind of constitution, under which, (according to the slave
argument,) we lived until 1808.
But is such the real character of the constitution? By it, did we thus
really avow to the world that we were a nation of pirates? that our
territory should be a harbor for pirates? that our people were
constitutionally licensed to enslave the people of all other nations,
without discrimination, (for the instrument makes no discrimination,)
whom they could either kidnap in their own countries, or capture on the
high seas? and that we had even prohibited our only government that
could make treaties with foreign nations, from making any treaty, until
1808, with any particular nation, to exempt the people of that nation
from their liability to be enslaved by the people of our own? The slave
argument says that we did avow all this. If we really did, perhaps all
that can be said of it now is, that it is very fortunate for us that
other nations did not take us at our word. For if they had taken us at
our word, we should, before 1808, have been among the nations that were.
Suppose that, on the organization of our government, we had been charged
by foreign nations, with having established a piratical government—how
could we have rebutted the charge otherwise than by denying that the
words “importation of persons” legally implied that the persons imported
were slaves? Suppose that European ambassadors had represented to
president Washington that their governments considered our constitution
as licensing our people to kidnap the people of other nations, without
discrimination, and bring them to the United States as slaves. Would he
not have denied that the legal meaning of the clause did any thing more
than secure the free introduction of foreigners as passengers and
freemen? Or would he—he, the world-renowned champion of human
rights—have indeed stooped to the acknowledgment that in truth he was
the head of a nation of pirates, whose constitution did guarantee the
freedom of kidnapping men abroad, and importing them as slaves? And
would he, in the event of this acknowledgment, have sought to avert the
destruction, which such an avowal would be likely to bring upon the
nation, by pleading that, although such was the legal meaning of the
words of our constitution, we yet had an understanding, (an honorable
understanding!) among ourselves, that we would not take advantage of the
license to kidnap or make slaves of any of the citizens of those
civilized and powerful nations of Europe, that kept ships of war, and
knew the use of gunpowder and cannon; but only the people of poor, weak,
barbarous and ignorant nations, who were incapable of resistance and
retaliation?
Again. Even the allowance of the simple “importation” of slaves—(and
that is the most that is literally provided for—and the word
“importation” must be construed to the letter,) would not, of itself,
give any authority for the continuance of the slavery after
“importation.” If a man bring either property or persons into this
country, he brings them in to abide the constitutional laws of the
country; and not to be held according to the customs of the country from
which they were brought. Were it not so, the Turk might import a harem
of Georgian slaves, and, at his option, either hold them as his own
property, or sell them as slaves to our own people, in defiance of any
principles of freedom that should prevail amongst us. To allow this kind
of “importation,” would be to allow not merely the importation of
foreign “persons,” but also of foreign laws to take precedence of our
own.
Finally. The conclusion, that congress were restrained, by this clause,
only from prohibiting the immigration of a foreign population, and not
from prohibiting the importation of slaves, to be held as slaves after
their importation—is the more inevitable, from the fact that the power
given to congress of naturalizing foreigners, is entirely
unlimited—except that their laws must be uniform throughout the United
States. They have perfect power to pass laws that shall naturalize every
foreigner without distinction, the moment he sets foot on our soil. And
they had this power as perfectly prior to 1808, as since. And it is a
power entirely inconsistent with the idea that they were bound to admit,
and forever after to acknowledge as slaves, all or any who might be
attempted to be brought into the country as such.
One other provision of the constitution, viz: the one that “the United
States shall protect each of the States against domestic violence”—has
sometimes been claimed as a special pledge of impunity and succor to
that kind of “violence,” which consists in one portion of the people’s
standing constantly upon the necks of another portion, and robbing them
of all civil privileges, and trampling upon all their personal rights.
The argument seems to take it for granted, that the only proper way of
protecting a “republican” state (for the states are all to be
“republican,”) against “domestic violence,” is to plant men firmly upon
one another’s necks, (about in the proportion of two upon one,) arm the
two with whip and spur, and then keep an armed force standing by to cut
down those that are ridden, if they dare attempt to throw the riders.
When the ridden portion shall, by this process, have been so far subdued
as to bear the burdens, lashings and spurrings of the other portion
without resistance, then the state will have been secured against
“domestic violence,” and the “republican form of government” will be
completely successful.
This version of this provision of the constitution presents a fair
illustration of those new ideas of law and language, that have been
invented for the special purpose of bringing slavery within the pale of
the constitution.
We have thus examined all those clauses of the constitution, that have
been relied on to prove that the instrument recognizes and sanctions
slavery. No one would have ever dreamed that either of these clauses
alone, or that all of them together, contained so much as an allusion to
slavery, had it not been for circumstances extraneous to the
constitution itself. And what are these extraneous circumstances? They
are the existence and toleration, in one portion of the country, of a
crime that embodies within itself nearly all the other crimes, which it
is the principal object of all our governments to punish and suppress; a
crime which we have therefore no more right to presume that the
constitution of the United States intended to sanction, than we have to
presume that it intended to sanction all the separate crimes which
slavery embodies, and our governments prohibit. Yet we have gratuitously
presumed that the constitution intended to sanction all these separate
crimes, as they are comprehended in the general crime of slavery. And
acting upon this gratuitous presumption, we have sought, in the words of
the constitution, for some hidden meaning, which we could imagine to
have been understood, by the initiated, as referring to slavery; or
rather we have presumed its words to have been used as a kind of cypher,
which, among confederates in crime, (as we presume its authors to have
been,) was meant to stand for slavery. In this way, and in this way
only, we pretend to have discovered, in the clauses that have been
examined, a hidden, yet legal sanction of slavery. In the name of all
that is legal, who of us are safe, if our government, instead of
searching our constitution to find authorities for maintaining justice,
are to continue to busy themselves in such prying and microscopic
investigations, after such disguised and enigmatical authorities for
such wrongs as that of slavery, and their pretended discoveries are to
be adopted as law, which they are sworn to carry into execution?
The clauses mentioned, taken either separately or collectively, neither
assert, imply, sanction, recognize nor acknowledge any such thing as
slavery. They do not even speak of it. They make no allusion to it
whatever. They do not suggest, and, of themselves, never would have
suggested the idea of slavery. There is, in the whole instrument, no
such word as slave or slavery; nor any language that can legally be made
to assert or imply the existence of slavery. There is in it nothing
about color; nothing from which a liability to slavery can be predicated
of one person more than another; or from which such a liability can be
predicated of any person whatever. The clauses, that have been claimed
for slavery, are all, in themselves, honest in their language, honest in
their legal meaning; and they can be made otherwise only by such
gratuitous assumptions against natural right, and such straining of
words in favor of the wrong, as, if applied to other clauses, would
utterly destroy every principle of liberty and justice, and allow the
whole instrument to be perverted to every conceivable purpose of tyranny
and crime.
Let us now look at the positive provisions of the constitution, in favor
of liberty, and see whether they are not only inconsistent with any
legal sanction of slavery, but also whether they must not, of
themselves, have necessarily extinguished slavery, if it had had any
constitutional existence to be extinguished.
And, first, the constitution made all “the people of the United States”
citizens under the government to be established by it; for all of those,
by whose authority the constitution declares itself to be established,
must of course be presumed to have been made citizens under it. And
whether they were entitled or not to the right of suffrage, they were at
least entitled to all the personal liberty and protection, which the
constitution professes to secure to “the people” generally.
Who, then, established the constitution?
The preamble to the constitution has told us in the plainest possible
terms, to wit, that “We, the people of the United States” “do ordain and
establish this constitution,” &c.
By “the people of the United States,” here mentioned, the constitution
intends all “the people” then permanently inhabiting the United States.
If it does not intend all, who were intended by “the people of the
United States?”—The constitution itself gives no answer to such a
question.—It does not declare that “we, the white people,” or “we, the
free people,” or “we, a part of the people”—but that “we, the
people”—that is, we the whole people—of the United States, “do ordain
and establish this constitution.”
If the whole people of the United States were not recognized as citizens
by the constitution, then the constitution gives no information as to
what portion of the people were to be citizens under it. And the
consequence would then follow that the constitution established a
government that could not know its own citizens.
We cannot go out of the constitution for evidence to prove who were to
be citizens under it. We cannot go out of a written instrument for
evidence to prove the parties to it, nor to explain its meaning, except
the language of the instrument on that point be ambiguous. In this case
there is no ambiguity. The language of the instrument is perfectly
explicit and intelligible.
Because the whole people of the country were not allowed to vote on the
ratification of the constitution, it does not follow that they were not
made citizens under it; for women and children did not vote on its
adoption; yet they are made citizens by it, and are entitled as citizens
to its protection; and the state governments cannot enslave them. The
national constitution does not limit the right of citizenship and
protection by the right of suffrage, any more than do the state
constitutions. Under the most, probably under all the state
constitutions, there are persons who are denied the right of
suffrage—but they are not therefore liable to be enslaved.
Those who did take part in the actual ratification of the constitution,
acted in behalf of, and, in theory, represented the authority of the
whole people. Such is the theory in this country wherever suffrage is
confined to a few; and such is the virtual declaration of the
constitution itself. The declaration that “we the people of the United
States do ordain and establish this constitution,” is equivalent to a
declaration that those who actually participated in its adoption, acted
in behalf of all others, as well as for themselves.
Any private intentions or understandings, on the part of one portion of
the people, as to who should be citizens, cannot be admitted to prove
that such portion only were intended by the constitution, to be
citizens; for the intentions of the other portion would be equally
admissible to exclude the exclusives. The mass of the people can claim
citizenship under the constitution, on no other ground than as being a
part of “the people of the United States;” and such claim necessarily
admits that all other “people of the United States” are equally
citizens.
That the designation, “We the people of the United States,” included the
whole people that properly belonged to the United States, is also proved
by the fact that no exception is made in any other part of the
instrument.
If the constitution had intended that any portion of “the people of the
United States” should be excepted from its benefits, disfranchised,
outlawed, enslaved, it would of course have designated these exceptions
with such particularity as to make it sure that none but the true
persons intended would be liable to be subjected to such wrongs. Yet,
instead of such particular designation of the exceptions, we find no
designation whatever of the kind. But on the contrary, we do find, in
the preamble itself, a sweeping declaration to the effect that there are
no such exceptions; that the whole people of the United States are
citizens, and entitled to liberty, protection, and the dispensation of
justice under the constitution.
If it be admitted that the constitution designated its own citizens,
then there is no escape from the conclusion that it designated the whole
people of the United States as such. On the other hand, if it be denied
that the constitution designated its own citizens, one of these two
conclusions must follow, viz., 1^(st), that it has no citizens; or, 2d,
that it has left an unrestrained power in the state governments to
determine who may, and who may not, be citizens of the United States
government. If the first of these conclusions be adopted, viz., that the
constitution has no citizens, then it follows that there is really no
United States government, except on paper—for there would be as much
reason in talking of an army without men, as of a government without
citizens. If the second conclusion be adopted, viz., that the state
governments have the right of determining who may, and who may not be
citizens of the United States government, then it follows that the state
governments may at pleasure destroy the government of the United States,
by enacting that none of their respective inhabitants shall be citizens
of the United States.
This latter is really the doctrine of some of the slave states—the
“state-rights” doctrine, so called. That doctrine holds that the general
government is merely a confederacy or league of the several states, as
states; not a government established by the people, as people. This
“state-rights” doctrine has been declared unconstitutional by reiterated
opinions of the supreme court of the United States;[22] and, what is of
more consequence, it is denied also by the preamble to the constitution
itself, which declares that it is “the people,” (and not the state
governments,) that ordain and establish it. It is true also that the
constitution was ratified by conventions of the people, and not by the
legislatures of the states. Yet because the constitution was ratified by
conventions of the states separately, (as it naturally would be for
convenience, and as it necessarily must have been for the reason that
none but the people of the respective states could recall any portion of
the authority they had, delegated to their state governments, so as to
grant it to the United States government,)—yet because it was thus
ratified, I say, some of the slave states have claimed that the general
government was a league of states, instead of a government formed by
“the people.” The true reason why the slave states have held this
theory, probably is, because it would give, or appear to give, to the
states the right of determining who should, and who should not, be
citizens of the United States. They probably saw that if it were
admitted that the constitution of the United States had designated its
own citizens, it had undeniably designated the whole people of the then
United States as such; and that, as a state could not enslave a citizen
of the United States, (on account of the supremacy of the constitution
of the United States,) it would follow that there could be no
constitutional slavery in the United States.
Again. If the constitution was established by authority of all “the
people of the United States,” they were all legally parties to it, and
citizens under it. And if they were parties to it, and citizens under
it, it follows that neither they, nor their posterity, nor any nor
either of them, can ever be legally enslaved within the territory of the
United States; for the constitution declares its object to be, among
other things, “to secure the blessings of liberty to ourselves, and our
posterity.” This purpose of the national constitution is a law paramount
to all state constitutions; for it is declared that “this constitution,
and the laws of the United States that 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.”
No one, I suppose, doubts that if the state governments were to abolish
slavery, the slaves would then, without further legislation, become
citizens of the United States. Yet, in reality, if they would become
citizens then, they are equally citizens now—else it would follow that
the state governments had an arbitrary power of making citizens of the
United States; or—what is equally absurd—it would follow that
disabilities, arbitrarily imposed by the state governments, upon native
inhabitants of the country, were, of themselves, sufficient to deprive
such inhabitants of their citizenship, which would otherwise have been
conferred upon them by the constitution of the United States. To suppose
that the state governments are thus able, arbitrarily, to keep in
abeyance, or arbitrarily to withhold from any of the inhabitants of the
country, any of the benefits or rights which the national constitution
intended to confer upon them, would be to suppose that the state
constitutions were paramount to the national one. The conclusion,
therefore, is inevitable, that the state governments have no power to
withhold the rights of citizenship from any who are otherwise competent
to become citizens. And as all the native born inhabitants of the
country are at least competent to become citizens of the United States,
(if they are not already such,) the state governments have no power, by
slave laws or any other, to withhold the rights of citizenship from
them.
But however clear it may be, that the constitution, in reality, made
citizens of all “the people of the United States,” yet it is not
necessary to maintain that point, in order to prove that the
constitution gave no guaranty or sanction to slavery—for if it had not
already given citizenship to all, it nevertheless gave to the government
of the United States unlimited power of offering citizenship to all. The
power given to the government of passing naturalization laws, is
entirely unrestricted, except that the laws must be uniform throughout
the country. And the government have undoubted power to offer
naturalization and citizenship to every person in the country, whether
foreigner or native, who is not already a citizen. To suppose that we
have in the country three millions of native born inhabitants, not
citizens, and whom the national government has no power to make
citizens, when its power of naturalization is entirely unrestricted, is
a palpable contradiction.
But further. The constitution of the United States must be made
consistent with itself throughout; and if any of its parts are
irreconcilable with each other, those parts that are inconsistent with
liberty, justice and right, must be thrown out for inconsistency.
Besides the provisions already mentioned, there are numerous others, in
the constitution of the United States, that are entirely and
irreconcilably inconsistent with the idea that there either was, or
could be, any constitutional slavery in this country.
Among these provisions are the following:
First. Congress have power to lay a capitation or poll tax upon the
people of the country. Upon whom shall this tax be levied? and who must
be held responsible for its payment? Suppose a poll tax were laid upon a
man, whom the state laws should pretend to call a slave. Are the United
States under the necessity of investigating, or taking any notice of the
fact of slavery, either for the purpose of excusing the man himself from
the tax, or of throwing it upon the person claiming to be his owner?
Must the government of the United States find a man’s pretended owner,
or only the man himself, before they can tax him? Clearly the United
States are not bound to tax any one but the individual himself, or to
hold any other person responsible for the tax. Any other principle would
enable the state governments to defeat any tax of this kind levied by
the United States. Yet a man’s liability to be held personally
responsible for the payment of a tax, levied upon himself by the
government of the United States, is inconsistent with the idea that the
government is bound to recognize him as not having the ownership of his
own person.
Second. “The congress shall have power to regulate commerce with foreign
nations, and among the several states, and with the Indian tribes.”
This power is held, by the supreme court of the United States, to be an
exclusive one in the general government; and it obviously must be so, to
be effectual—for if the states could also interfere to regulate it, the
states could at pleasure defeat the regulations of congress.
Congress, then, having the exclusive power of regulating this commerce,
they only (if any body) can say who may, and who may not, carry it on;
and probably even they have no power to discriminate arbitrarily between
individuals.—But, in no event, have the state governments any right to
say who may, or who may not, carry on “commerce with foreign nations,”
or “among the several states,” or “with the Indian tribes.” Every
individual—naturally competent to make contracts—whom the state laws
declare to be a slave, probably has, and certainly may have, under the
regulations of congress, as perfect a right to carry on “commerce with
foreign nations, and among the several states, and with the Indian
tribes,” as any other citizen of the United States can have—“any thing
in the constitution or laws of any state to the contrary
notwithstanding.” Yet this right of carrying on commerce is a right
entirely inconsistent with the idea of a man’s being a slave.
Again. It is a principle of law that the right of traffic is a natural
right, and that all commerce (that is intrinsically innocent) is
therefore lawful, except what is prohibited by positive legislation.
Traffic with the slaves, either by people of foreign nations, or by
people belonging to other states than the slaves, has never (so far as I
know) been prohibited by congress, which is the only government, (if
any,) that has power to prohibit it. Traffic with the slaves is
therefore as lawful at this moment, under the constitution of the United
States, as is traffic with their masters; and this fact is entirely
inconsistent with the idea that their bondage is constitutional.
Third. “The congress shall have power to establish post offices and post
roads.”
Who, but congress, have any right to say who may send, or receive
letters by the United States posts? Certainly no one. They have
undoubted authority to permit any one to send and receive letters by
their posts—“any thing in the constitutions or laws of the states to the
contrary notwithstanding.” Yet the right to send and receive letters by
post, is a right inconsistent with the idea of a man’s being a slave.
Fourth. “The congress shall have power to promote the progress of
science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and
discoveries.”
Suppose a man, whom a state may pretend to call a slave, should make an
invention or discovery—congress have undoubted power to secure to such
individual himself, by patent, the “exclusive”—(mark the word)—the
“exclusive right” to his invention or discovery. But does not this
“exclusive right” in the inventor himself, exclude the right of any man,
who, under a state law, may claim to be the owner of the inventor?
Certainly it does. Yet the slave code says that whatever is a slave’s is
his owner’s. This power, then, on the part of congress, to secure to an
individual the exclusive right to his inventions and discoveries, is a
power inconsistent with the idea that that individual himself, and all
he may possess, are the property of another.
Fifth. “The congress shall have power to declare war, grant letters of
marque and reprisal, and make rules concerning captures on land and
water;” also “to raise and support armies;” and “to provide and maintain
a navy.”
Have not congress authority, under these powers, to enlist soldiers and
sailors, by contract with themselves, and to pay them their wages, grant
them pensions, and secure their wages and pensions to their own use,
without asking the permission either of the state governments, or of any
individuals whom the state governments may see fit to recognize as the
owners of such soldiers and sailors? Certainly they have, in defiance of
all state laws and constitutions whatsoever; and they have already
asserted that principle by enacting that pensions, paid by the United
States to their soldiers, shall not be liable to be taken for debt,
under the laws of the states. Have they not authority also to grant
letters of marque and reprisal, and to secure the prizes, to a ship’s
crew of blacks, as well as of whites? To those whom the State
governments call slaves, as well as to those whom the state governments
call free?—Have not congress authority to make contracts, for the
defence of the nation, with any and all the inhabitants of the nation,
who may be willing to perform the service? Or are they obliged first to
ask and obtain the consent of those private individuals who may pretend
to own the inhabitants of this nation? Undoubtedly congress have the
power to contract with whom they please, and to secure wages and
pensions to such individuals, in contempt of all state authority. Yet
this power is inconsistent with the idea that the constitution
recognizes or sanctions the legality of slavery.
Sixth. “The congress shall have power to provide for the organizing,
arming and disciplining the militia, and for governing such part of them
as may be employed in the service of the United States, reserving to the
states respectively the appointment of the officers, and the authority
of training the militia, according to the discipline prescribed by
congress.” Also “to provide for calling forth the militia to execute the
laws of the Union, suppress insurrections, and repel invasions.”
Have not congress, under these powers, as undoubted authority to enroll
in the militia, and “arm” those whom the states call slaves, and
authorize them always to keep their arms by them, even when not on duty,
(that they may at all times be ready to be “called forth” “to execute
the laws of the Union, suppress insurrections, and repel invasions,”) as
they have thus to enroll and arm those whom the states call free? Can
the state governments determine who may, and who may not compose the
militia of the “United States?”
Look, too, at this power, in connection with the second amendment to the
constitution; which is in these words:
“A well regulated militia being necessary to the security of a free
state, the right of the people to keep and bear arms shall not be
infringed.”
These provisions obviously recognize the natural right of all men “to
keep and bear arms” for their personal defence; and prohibit both
congress and the state governments from infringing the right of “the
people”—that is, of any of the people—to do so; and more especially of
any whom congress have power to include in their militia. This right of
a man “to keep and bear arms,” is a right palpably inconsistent with the
idea of his being a slave. Yet the right is secured as effectually to
those whom the states presume to call slaves, as to any whom the states
condescend to acknowledge free.
Under this provision any man has a right either to give or sell arms to
those persons whom the states call slaves; and there is no
constitutional power, in either the national or state governments, that
can punish him for so doing; or that can take those arms from the
slaves; or that can make it criminal for the slaves to use them, if,
from the inefficiency of the laws, it should become necessary for them
to do so, in defence of their own lives or liberties; for this
constitutional right to keep arms implies the constitutional right to
use them, if need be, for the defence of one’s liberty or life.
Seventh. The constitution of the United States declares that “no state
shall pass any law impairing the obligation of contracts.”
“The obligation of contracts,” here spoken of, is, of necessity, the
natural obligation; for that is the only real or true obligation that
any contracts can have. It is also the only obligation, which courts
recognize in any case, except where legislatures arbitrarily interfere
to impair it. But the prohibition of the constitution is upon the
states’ passing any law whatever that shall impair the natural
obligation of men’s contracts. Yet, if slave laws were constitutional,
they would effectually impair the obligation of all contracts entered
into by those who are made slaves; for the slave laws must necessarily
hold that all a slave’s contracts are void.
This prohibition upon the states to pass any law impairing the natural
obligation of men’s contracts, implies that all men have a
constitutional right to enter into all contracts that have a natural
obligation. It therefore secures the constitutional right of all men to
enter into such contracts, and to have them respected by the state
governments. Yet this constitutional right of all men to enter into all
contracts that have a natural obligation, and to have those contracts
recognized by law as valid, is a right plainly inconsistent with the
idea that men can constitutionally be made slaves.
This provision therefore absolutely prohibits the passage of slave laws,
because laws that make men slaves must necessarily impair the obligation
of all their contracts.
Eighth. Persons, whom some of the state governments recognize as slaves,
are made eligible, by the constitution of the United States, to the
office of president of the United States. The constitutional provision
on this subject is this:
“No person, except a natural born citizen, or a citizen of the United
States at the time of the adoption of this constitution, shall be
eligible to the office of president; neither shall any person be
eligible to that office, who shall not have attained the age of
thirty-five years, and been fourteen years a resident of the United
States.”
According to this provision, all “persons”,[23] who have resided within
the United States fourteen years, have attained the age of thirty-five
years, and are either natural born citizens, or were citizens of the
United States at the time of the adoption of the constitution, are
eligible to the office of president. No other qualifications than these
being required by the constitution, no others can be legally demanded.
The only question, then, that can arise, is as to the word “citizen.”
Who are the persons that come within this definition, as here used? The
clause itself divides them into two classes, to wit, the “natural born,”
and those who were “citizens of the United States at the time of the
adoption of the constitution.” In regard to this latter class, it has
before been shown, from the preamble to the constitution, that all who
were “people of the United States,” (that is, permanent inhabitants,) at
the time the constitution was adopted, were made citizens by it. And
this clause, describing those eligible to the office of president,
implies the same thing. This is evident; for it speaks of those who were
“citizens of the United States at the time of the adoption of the
constitution.” Now there clearly could have been no “citizens of the
United States, at the time of the adoption of the constitution,” unless
they were made so by the constitution itself; for there were no
“citizens of the United States” before the adoption of the constitution.
The Confederation had no citizens. It was a mere league between the
state governments. The separate states belonging to the confederacy had
each their own citizens respectively. But the confederation itself, as
such, had no citizens. There were, therefore, no “citizens of the United
States,” (but only citizens of the respective states,) before the
adoption of the constitution.—Yet this clause asserts that immediately
on the adoption, or “at the time of the adoption of this constitution,”
there were “citizens of the United States.” Those, then, who were
“citizens of the United States at the time of the adoption of the
constitution,” were necessarily those, and only those, who had been made
so by the adoption of the constitution; because they could have become
citizens at that precise “time” in no other way. If, then, any persons
were made citizens by the adoption of the constitution, who were the
individuals that were thus made citizens? They were “the people of the
United States,” of course—as the preamble to the constitution virtually
asserts. And if “the people of the United States” were made citizens by
the adoption of the constitution, then all “the people of the United
States” were necessarily made citizens by it—for no discrimination is
made by the constitution between different individuals, “people of the
United States”—and there is therefore no means of determining who were
made citizens by the adoption of the constitution, unless all “the
people of the United States” were so made. Any “person,” then, who was
one of “the people of the United States” “at the time of the adoption of
this constitution,” and who is thirty-five years old, and has resided
fourteen years within the United States, is eligible to the office of
president of the United States. And if every such person be eligible,
under the constitution, to the office of president of the United States,
the constitution certainly does not recognize them as slaves.
The other class of citizens, mentioned as being eligible to the office
of president, consists of the “natural born citizens.” Here is an
implied assertion that natural birth in the country gives the right of
citizenship. And if it gives it to one, it necessarily gives it to
all—for no discrimination is made; and if all persons, born in the
country, are not entitled to citizenship, the constitution has given us
no test by which to determine who of them are entitled to it.
Every person, then, born in the country, and that shall have attained
the age of thirty-five years, and been fourteen years a resident within
the United States, is eligible to the office of president. And if
eligible to that office, the constitution certainly does not recognize
him as a slave.
Persons, who are “citizens” of the United States, according to the
foregoing definitions, are also eligible to the offices of
representative and senator of the United States; and therefore cannot be
slaves.
Ninth. The constitution declares that “the trial of all crimes, except
in cases of impeachment, shall be by jury.”—Also that “Treason against
the United States shall consist only in levying war against them, or in
adhering to their enemies, giving them aid and comfort.”
It is obvious that slaves, if we had any, might “levy war against the
United States,” and might also “adhere to their enemies, giving them aid
and comfort.” It may, however, be doubted whether they could commit the
crime of treason—for treason implies a breach of fidelity, trust or
allegiance, where fidelity, trust or allegiance is due. And it is very
clear that slaves could owe allegiance, trust or fidelity, neither to
the United States, nor to the state governments; for allegiance is due
to a government only from those who are protected by it. Slaves could
owe to our governments nothing but resistance and destruction. If
therefore they were to levy war against the United States, they might
not perhaps be liable to the technical charge of treason; although there
would, in reality, be as much treason in their act, as there would of
any other crime—for there would, in truth, be neither legal nor moral
crime of any kind in it. Still, the government would be compelled, in
order to protect itself against them, to charge them with some crime or
other—treason, murder, or something else. And this charge, whatever it
might be, would have to be tried by a jury. And what (in criminal
cases,) is the “trial by jury?” It is a trial, both of the law and the
fact, by the “peers,” or equals, of the person tried. Who are the
“peers” of a slave? None, evidently, but slaves. If, then, the
constitution recognizes any such class of persons, in this country, as
slaves, it would follow that for any crime committed by them against the
United States, they must be tried, both on the law and the facts, by a
jury of slaves. The result of such trials we can readily imagine.
Does this look as if the constitution guarantied, or even recognized the
legality of slavery?
Tenth. The constitution declares that “The privilege of the writ of
habeas corpus shall not be suspended, unless when, in cases of rebellion
or invasion, the public safety may require it.”
The privilege of this writ, wherever it is allowed, is of itself
sufficient to make slavery impossible and illegal. The object and
prerogative of this writ are to secure to all persons their natural
right to personal liberty, against all restraint except from the
government; and even against restraints by the government itself, unless
they are imposed in conformity with established general laws, and upon
the charge of some legal offence or liability. It accordingly liberates
all who are held in custody against their will, (whether by individuals
or the government,) unless they are held on some formal writ or process,
authorized by law, issued by the government, according to established
principles, and charging the person held by it with some legal offence
or liability. The principle of the writ seems to be, that no one shall
be restrained of his natural liberty, unless these three things
conspire; 1^(st), that the restraint be imposed by special command of
the government; 2d, that there be a general law authorizing restraints
for specific causes; and, 3d, that the government, previously to issuing
process for restraining any particular individual, shall itself, by its
proper authorities, take express cognizance of, and inquire cautiously
into the facts of each case, and ascertain, by reasonable evidence, that
the individual has brought himself within the liabilities of the general
law. All these things the writ of habeas corpus secures to be done,
before it will suffer a man to be restrained of his liberty; for the
writ is a mandate to the person holding another in custody, commanding
him to bring his prisoner before the court, and show the authority by
which it holds him. Unless he then exhibit a legal precept, warrant or
writ, issued by, and bearing the seal of the government, specifying a
legal ground for restraining the prisoner, and authorizing or requiring
him to hold him in custody, he will be ordered to let him go free. Hence
all the keepers of prisons, in order to hold their prisoners against the
authority of this writ, are required, in the case of each prisoner, to
have a written precept or order, bearing the seal of the government, and
issued by the proper authority, particularly describing the prisoner by
name or otherwise, and setting forth the legal grounds of his
imprisonment, and requiring the keeper of the prison to hold him in his
custody.
Now the master does not hold his slave in custody by virtue of any
formal or legal writ or process, either authorized by law, or issued by
the government, or that charges the slave with any legal offence or
liability. A slave is incapable of incurring any legal liability, or
obligation to his master. And the government could, with no more
consistency, grant a writ or process to the master, to enable him to
hold his slave, than it could to enable him to hold his horse. It simply
recognizes his right of property in his slave, and then leaves him at
liberty to hold him by brute force, if he can, as he holds his ox, or
his horse—and not otherwise. If the slave escape, or refuse to labor,
the slave code no more authorizes the government to issue legal process
against the slave, to authorize the master to catch him, or compel him
to labor, than it does against a horse for the same purpose.—The slave
is held simply as property, by individual force, without legal process.
But the writ of habeas corpus acknowledges no such principle as the
right of property in man. If it did, it would be perfectly impotent in
all cases whatsoever; because it is a principle of law, in regard to
property, that simple possession is prima facie evidence of ownership;
and therefore any man, who was holding another in custody, could defeat
the writ by pleading that he owned his prisoner, and by giving, as proof
of ownership, the simple fact that he was in possession of him. If,
therefore, the writ of habeas corpus did not, of itself, involve a
denial of the right of property in man, the fact stated in it, that one
man was holding another in custody, would be prima facie evidence that
he owned him, and had a right to hold him; and the writ would therefore
carry an absurdity in its face.
The writ of habeas corpus, then, necessarily denies the right of
property in man. And the constitution, by declaring, without any
discrimination of persons, that “the privilege of this writ shall not be
suspended,”—that is, shall not be denied to any human being—has declared
that, under the constitution, there can be no right of property in man.
This writ was unquestionably intended as a great constitutional guaranty
of personal liberty. But unless it denies the right of property in man,
it in reality affords no protection to any of us against being made
slaves. If it does deny the right of property in man, the slave is
entitled to the privilege of the writ; for he is held in custody by his
master, simply on the ground of property.
Mr. Christian, one of Blackstone’s editors, says that it is this writ
that makes slavery impossible in England. It was on this writ, that
Somerset was liberated. The writ, in fact, asserts, as a great
constitutional principle, the natural right of personal liberty. And the
privilege of the writ is not confined to citizens, but extends to all
human beings.[24] And it is probably the only absolute guaranty, that
our national constitution gives to foreigners and aliens, that they
shall not, on their arrival here, be enslaved by those of our state
governments that exhibit such propensities for enslaving their
fellow-men. For this purpose, it is a perfect guaranty to people who
come here from any part of the world. And if it be such a guaranty to
foreigners and aliens, is it no guaranty to those born under the
constitution? Especially when the constitution makes no discrimination
of persons?
Eleventh. “The United States shall guaranty to every state in this union
a republican form of government, and shall protect each of them against
invasion; and, on application of the legislature, or of the executive,
(when the legislature cannot be convened,) against domestic violence.”
Mark the strength and explicitness of the first clause of this section,
to wit, “The United States shall guarantee to every state in this union
a republican form of government.” Mark also especially that this
guaranty is one of liberty, and not of slavery.
We have all of us heretofore been compelled to hear, from individuals of
slaveholding principles, many arrogant and bombastic assertions,
touching the constitutional “guaranties” given to slavery; and persons,
who are in the habit of taking their constitutional law from other men’s
mouths, instead of looking at the constitution for themselves, have
probably been led to imagine that the constitution had really given such
guaranties in some explicit and tangible form. We have, nevertheless,
seen that all those pretended guaranties are at most nothing but certain
vague hints, insinuations, ciphers and innuendoes, that are imagined to
be covered up under language which legally means nothing of the kind.
But, in the clause now cited, we do have an explicit and peremptory
“guaranty,” depending upon no implications, inferences or conjectures,
and couched in no uncertain or ambiguous terms. And what is this
guaranty? Is it a guaranty of slavery? No. It is a guaranty of something
flatly incompatible with slavery: a guaranty of “a republican form of
government to every state in this union.”
And what is “a republican form of government?” It is where the
government is a commonwealth—the property of the public, of the mass of
the people, or of the entire people. It is where the government is made
up of, and controlled by the combined will and power of the public, or
the mass of the people—and where, of natural consequence, it will have,
for its object, the protection of the rights of all. It is indispensable
to a republican form of government, that the public, the mass of the
people, if not the entire people, participate in the grant of powers to
the government, and in the protection afforded by the government. It is
impossible, therefore, that a government, under which any considerable
number of the people, (if indeed any number of the people,) are
disfranchised and enslaved, can be a republic. A slave government is an
oligarchy; and one too of the most arbitrary and criminal character.
Strange that men, who have eyes capable of discovering in the
constitution so many covert, implied and insinuated guaranties of crime
and slavery, should be blind to the legal import of so open, explicit
and peremptory a guaranty of freedom, equality and right.
Even if there had really been, in the constitution, two such
contradictory guaranties, as one of liberty or republicanism in every
state of the Union, and another of slavery in every state where one
portion of the people might succeed in enslaving the rest, one of these
guaranties must have given way to the other—for, being plainly
inconsistent with each other, they could not have stood together. And it
might safely have been left either to legal or to moral rules to
determine which of the two should prevail—whether a provision to
perpetuate slavery should triumph over a guaranty of freedom.
But it is constantly asserted, in substance, that there is “no
propriety” in the general government’s interfering in the local
governments of the states. Those who make this assertion appear to
regard a state as a single individual, capable of managing his own
affairs, and of course unwilling to tolerate the intermeddling of
others. But a state is not an individual. It is made up of large numbers
of individuals, each and all of whom, amid the intestine mutations and
strifes to which states are subject, are liable, at some time or other,
to be trampled upon by the strongest party, and may therefore reasonably
choose to secure, in advance, some external protection against such
emergencies, by making reciprocal contracts with other people similarly
exposed in the neighboring states. Such contracts for mutual succor and
protection, are perfectly fit and proper for any people who are so
situated as to be able to contribute to each other’s security. They are
as fit and proper as any other political contracts whatever; and are
founded on precisely the same principle of combination for mutual
defence—for what are any of our political contracts and forms of
government, but contracts between man and man for mutual protection
against those who may conspire to injure either or all of them? But
these contracts, fit and proper between all men, are peculiarly
appropriate to those, who, while they are members of various local and
subordinate associations, are, at the same time, united for specific
purposes, under one general government. Such a mutual contract, between
the people of all the states, is contained in this clause of the
constitution. And it gives to them all an additional guaranty for their
liberties.
Those who object to this guaranty, however, choose to overlook all these
considerations, and then appear to imagine that their notions of
“propriety” on this point, can effectually expunge the guaranty itself
from the constitution. In indulging this fancy, however, they
undoubtedly overrate the legal, and perhaps also the moral effect of
such superlative fastidiousness; for even if there were “no propriety”
in the interference of the general government to maintain a republican
form of government in the states, still, the unequivocal pledge to that
effect, given in the constitution, would nevertheless remain an
irresistible rebutter to the allegation that the constitution intended
to guaranty its opposite, slavery, an oligarchy, or a despotism. It
would, therefore, entirely forbid all those inferences and implications,
drawn by slaveholders, from those other phrases, which they quote as
guaranties of slavery.[25]
But the “propriety,” and not only the propriety, but the necessity of
this guaranty, may be maintained on still other grounds.
One of these grounds is, that it would be impossible, consistently with
the other provisions of the constitution, that the general government
itself could be republican, unless the state governments were republican
also. For example. The constitution provides, in regard to the choice of
congressional representatives, that “the electors in each state shall
have the qualifications requisite for electors of the most numerous
branch of the state legislature.” It was indispensable to the internal
quiet of each state, that the same body of electors, who should
participate in the suffrage of the state governments, should participate
also in the suffrage of the national one—and vice versa, that those who
should participate in the national suffrage, should also participate in
that of the state. If the general and state constitutions had each a
different body of electors within each state, it would obviously give
rise at once to implacable and irreconcilable feuds, that would result
in the overthrow of one or the other of the governments within the
state. Harmony or inveterate conflict was the only alternative. As
conflict would necessarily result in the destruction of one of the
governments, harmony was the only mode by which both could be preserved.
And this harmony could be secured only by giving to the same body of
electors, suffrage in both the governments.
If, then, it was indispensable to the existence and authority of both
governments, within the territory of each state, that the same body, and
only the same body of electors, that were represented in one of the
governments, should be represented in the other, it was clearly
indispensable, in order that the national one should be republican, that
the state governments should be republican also. Hence the interest
which the nation at large have in the republicanism of each of the state
governments.
It being necessary that the suffrage under the national government,
within each state, should be the same as for the state government, it is
apparent that unless the several state governments were all formed on
one general plan, or unless the electors of all the states were united
in the acknowledgement of some general controlling principle, applicable
to both governments, it would be impossible that they could unite in the
maintenance of a general government that should act in harmony with the
state governments; because the same body of electors, that should
support a despotic government in the state, could not consistently or
cordially unite, or even unite at all, in the support of a republican
government for the nation. If one portion of the state governments
should be republican, like Vermont, where suffrage is open to all—and
another portion should be oligarchies, like South Carolina, and the
other slave states—another portion limited monarchies, like
England—another portion ecclesiastical, like that of the Pope of Rome,
or that of the ancient Jews—and another portion absolute despotisms,
like that of Nicholas, in Russia, or that of Francia, in Paraguay,—and
the same body, and only the same body, of electors, that sustained each
of these governments at home, should be represented in the national
government, each state would send into the national legislature the
representatives of its own peculiar system of government; and the
national legislature, instead of being composed of the representatives
of any one theory, or principle of government, would be made up of the
representatives of all the various theories of government that prevailed
in the different states—from the extreme of democracy to the extreme of
despotism. And each of these various representatives would be obliged to
carry his local principles into the national legislature, else he could
not retain the confidence of his peculiar constituents. The consequence
would be, that the national legislature would present the spectacle of a
perfect Babel of discordant tongues, elements, passions, interests and
purposes, instead of an assembly united for the accomplishment of any
agreed or distinct object.
Without some distinct and agreed object as a bond of union, it would
obviously be impracticable for any general union of the whole people to
subsist; and that bond of union, whatever it be, must also harmonize
with the principles of each of the state governments, else there would
be a collision between the general and state governments.
Now the great bond of union, agreed upon in the general government, was
“the rights of man”—expressed in the national constitution by the terms
“liberty and justice.” What other bond could have been agreed upon? On
what other principle of government could they all have united? Could
they have united to sustain the divine right of kings? The feudal
privileges of nobles? Or the supremacy of the Christian, Mahometan, or
any other church? No. They all denied the divine right of kings, and the
feudal rights of nobles; and they were of all creeds in religion. But
they were agreed that all men had certain natural, inherent, essential
and inalienable rights, among which were life, liberty and the pursuit
of happiness; and that the preservation of these rights was the
legitimate purpose of governments among men. They had avowed this
principle before the world, had fought for it, and successfully defended
it, against the mightiest power in the world. They had filled the world
with its glory; and it, in turn, had filled the world with theirs. It
had also gathered, and was then gathering, choice spirits, and large
numbers of the oppressed from other nations unto them. And this
principle—in which were involved the safety, interests and rights of
each and every one of “the people,” who were to unite for the formation
of the government—now furnished a bond of union, that was at once
sufficient, legitimate, consistent, honorable, of universal application,
and having more general power over the hearts and heads of all of them,
than any other that could be found to hold them together. It comported
with their theory of the true objects of government. This principle,
therefore, they adopted as the corner-stone of their national
government; and, as a matter of necessity, all other things, on which
this new government was in any degree to depend, or which was to depend
in any degree upon this government, were then made to conform to this
principle. Hence the propriety of the power given to the general
government, of “guaranteeing to every state in the Union a republican
form of government.” Had not this power been given to the general
government, the majorities in each state might have converted the state
governments into oligarchies, aristocracies, monarchies or despotisms,
that should not only have trampled upon the minorities, and defeated
their enjoyment of the national constitution, but also introduced such
factions and feuds into the national governments, as would have
distracted its councils, and prostrated its power.
But there were also motives of a pecuniary and social, as well as
political nature, that made it proper that the nation should guarantee
to the states a republican form of government.
Commerce was to be established between the people of the different
states. The commerce of a free people is many times more valuable than
that of slaves. Freemen produce and consume vastly more than slaves.
They have therefore more to buy and more to sell. Hence the free states
have a direct pecuniary interest in the civil freedom of all the other
states. Commerce between free and slave states is not reciprocal or
equal. Who can measure the increase that would have been made to the
industry and prosperity of the free states, if all the slaves in the
country had been freemen, with all the wants and energies of freemen?
And their masters had had all the thrift, industry, frugality and
enterprise of men who depend upon their own labor, instead of the labor
of slaves, for their prosperity? Great Britain thought it policy to
carry on a seven years’ war against us principally to secure to herself
the control and benefits of the commerce of three millions of people and
their posterity. But we now have nearly or quite the same number of
slaves within our borders, and yet we think that commerce with them and
their posterity is a matter with which we have no concern; that there is
“no propriety” in that provision of the national constitution, which
requires that the general government—which we have invested with the
exclusive control of all commerce among the several states—should secure
to these three millions the right of traffic with their fellow men, and
to their fellow men the right of traffic with them, against the
impertinent usurpations and tyranny of subordinate governments, that
have no constitutional right to interfere in the matter.
Again. The slave states, in proportion to their population, contribute
nothing like an equal or equitable share to the aggregate of national
wealth. It would probably be within the truth to say that, in proportion
to numbers, the people of the free states have contributed ten times as
much to the national wealth as the people of the slave states. Even for
such wealth as the culture of their great staple, cotton, has added to
the nation, the south are indebted principally, if not entirely, to the
inventive genius of a single northern man.[26] The agriculture of the
slave states is carried on with rude and clumsy implements; by listless,
spiritless and thriftless laborers; and in a manner speedily to wear out
the natural fertility of the soil, which fertility slave cultivation
seldom or never replaces. The mechanic arts are comparatively dead among
them. Invention is utterly dormant. It is doubtful whether either a
slave or a slave holder has ever invented a single important article of
labor-saving machinery since the foundation of the government. And they
have hardly had the skill or enterprise to apply any of those invented
by others. Who can estimate the loss of wealth to the nation from these
causes alone? Yet we of the free states give to the south a share in the
incalculable wealth produced by our inventions and labor-saving
machinery, our steam engines, and cotton gins, and manufacturing
machinery of all sorts, and yet say at the same time that we have no
interest, and that there is “no propriety” in the constitutional
guaranty of that personal freedom to the people of the south, which
would enable them to return us some equivalent in kind.
For the want, too, of an enforcement of this guaranty of a republican
form of government to each of the states, the population of the country,
by the immigration of foreigners, has no doubt been greatly hindered.
Multitudes almost innumerable, who would have come here, either from a
love of liberty, or to better their conditions, and given the country
the benefit of their talents, industry and wealth, have no doubt been
dissuaded or deterred by the hideous tyranny that rides triumphant in
one half of the nation, and extends its pestiferous and detested
influence over the other half.
Socially, also, we have an interest in the freedom of all the states. We
have an interest in free personal intercourse with all the people living
under a common government with ourselves. We wish to be free to discuss,
with any and all of them, all the principles of liberty and all the
interests of humanity. We wish, when we meet a fellow man, to be at
liberty to speak freely with him of his and our condition; to be at
liberty to do him a service; to advise with him as to the means of
improving his condition; and, if need be, to ask a kindness at his
hands. But all these things are incompatible with slavery. Is this such
an union as we bargained for? Was it “nominated in the bond,” that we
should be cut off from these the common rights of human nature? If so,
point to the line and letter, where it is so written. Neither of them
are to be found. But the contrary is expressly guarantied against the
power of both the governments, state and national; for the national
government is prohibited from passing any law abridging the freedom of
speech and the press, and the state governments are prohibited from
maintaining any other than a republican form of government, which of
course implies the same freedom.
The nation at large have still another interest in the republicanism of
each of the states; an interest, too, that is indicated in the same
section in which this republicanism is guarantied. This interest results
from the fact that the nation are pledged to “protect” each of the
states “against domestic violence.” Was there no account taken—in
reference either to the cost or the principle of this undertaking—as to
what might be the character of the state governments, which we are thus
pledged to defend against the risings of the people? Did we covenant, in
this clause, to wage war against the rights of man? Did we pledge
ourselves that those, however few, who might ever succeed in getting the
government of a state into their hands, should thenceforth be recognized
as the legitimate power of the state, and be entitled to the whole force
of the general government to aid them in subjecting the remainder of the
people to the degradation and injustice of slavery? Or did the nation
undertake only to guarantee the preservation of “a republican form of
government” against the violence of those who might prove its enemies?
The reason of the thing, and the connexion, in which the two provisions
stand in the constitution, give the answer.
We have yet another interest still, and that no trivial one, in the
republicanism of the state governments; an interest indicated, too, like
the one last mentioned, in the very section in which this republicanism
is assured. It relates to the defence against invasion. The general
government is pledged to defend each of the states against invasion. Is
it a thing of no moment, whether we have given such a pledge to free or
to slave states? Is there no difference in the cost and hazard of
defending one or the other? Is it of no consequence to the expense of
life and money, involved in this undertaking, whether the people of the
state invaded shall be united, as freemen naturally will be, as one man
against the enemy? Or whether, as in slave states, half of them shall be
burning to join the enemy, with the purpose of satisfying with blood the
long account of wrong that shall have accrued against their oppressors?
Did Massachusetts—who during the war of the revolution furnished more
men for the common defence, than all the six southern states
together—did she, immediately on the close of that war, pledge herself,
as the slave holders would have it, that she would lavish her life in
like manner again, for the defence of those whose wickedness and tyranny
in peace should necessarily multiply their enemies and make them
defenceless in war? If so, on what principle, or for what equivalent,
did she do it? Did she not rather take care that the guaranty for a
republican government should be inserted in the same paragraph with that
for protection against invasion, in order that both the principle and
the extent of the liability she incurred, might distinctly appear?
The nation at large, then, as a political community under the
constitution, have both interests and rights, and both of the most vital
character, in the republicanism of each of the state governments. The
guaranty given by the national constitution, securing such a government
to each of the states, is therefore neither officious nor impertinent.
On the contrary, this guaranty was a sine qua non to any national
contract of union; and the enforcement of it is equally indispensable,
if not to the continuance of the union at all, certainly to its
continuance on any terms that are either safe, honorable or equitable
for the north.
This guaranty, then, is not idle verbiage. It is full of meaning. And
that meaning is not only fatal to slavery itself, but it is fatal also
to all those pretences, constructions, surmises and implications, by
which it is claimed that the national constitution sanctions, legalizes,
or even tolerates slavery.
“No law will make a construction 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.
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.
“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.
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.[27]
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, 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.[28] The
instrument had 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 partizans 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 any thing 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 any thing 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. 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 any thing 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.[29]
But even if the unexpressed intentions, which these notes of debate
ascribe 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 intend 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 purposes of its originators?
The members of the convention, as such, were the mere scriveners of the
constitution; and their individual purposes, opinions 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 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 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 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 little 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, 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,
“Thou canst not say I did it.”
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 least 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 instrument, it had been merely agreed upon orally by the members
of the convention? And by them only orally reported to the people? And
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 Mr. 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 whole 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 villainy
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 country where the people claim the
prerogative of establishing their own government, and deny the right of
any body 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 any thing 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 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.
“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.
“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.
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, 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.
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 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 principles
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 for ever
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
designed 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.
Of all the existing state constitutions, (excepting that of Florida,
which I have not seen,) not one of them contains provisions that are
sufficient, (or that would be sufficient 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 a 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 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:—
Art. 3. “The inhabitants” (that is, all the inhabitants,) “of the ceded
territory shall be incorporated in the union of the United States, and
admitted as soon as possible, according to the principles of the federal
constitution, to the enjoyment of all the rights, advantages, and
immunities of citizens of the United States; and, in the mean time, they
shall be maintained and protected in the free enjoyment of their
liberty, property, and the religion which they profess.”
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:—
“Art. 6. The inhabitants of the territories, which his Catholic majesty
cedes to the United States by this treaty, shall be incorporated in the
Union of the United States, as soon as may be consistent with the
principles of the federal constitution, and admitted to the enjoyment of
all the privileges, rights and immunities of the citizens of the United
States.”
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; 1^(st). These slave
acts were previously unconstitutional, and therefore were not, legally
speaking, “laws in force.”[30] 2d. Every constitution, I think, that has
this provision, has one or more other provisions that are “repugnant” to
the slave acts.
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 any thing 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 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 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, then 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 any body 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
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[31]—which of course 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.
[1] 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.
[2] 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.
[3] United States vs. Fisher, 2 Cranch, 390.
[4] 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.”
[5] In the case of the town of Pawlet v. Clark and others, the court
say—
[6] 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.
[7] 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?
[8] Mr. Bancroft, in the third volume of his history, (pp. 413, 14,)
says:
[9] “Chastised.” 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.”
[10] Hening, vol. 2, p. 283.
[11] Hening, vol. 5, p. 547–8.
[12] 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:
[13] The following is the preamble and the important enacting clause of
this statute of 1740:
[14] 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; Massachusetts, 1780; New Hampshire, 1783.
[15] 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.
[16] Dallas’s edition of the Laws of Pennsylvania, vol. 1, Appendix,
page 25.
[17] Cooper’s edition of the Laws of South Carolina, vols. 2 and 4.
“Aliens,”
[18] 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,
1^(st), 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.
[19] “Laws are construed strictly to save a right.”—Whitney et al. vs.
Emmett et al., 1 Baldwin, C.C.R. 316.
[20] 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.
[21] Gibbons vs. Ogden.—(9 Wheaton, 1.)
[22] “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.
[23] 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.
[24] 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.
[25] 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.
[26] Eli Whitney.
[27] 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.
[28] The Supreme Court of the United States say:
[29] “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:
[30] 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.
[31] Art. 2, Sec. 1, Clause 5, “No person, except a natural born
citizen,* * * * shall be eligible to the office of President.”