. .^' o 0' v^ f % THE UNCONSTITUTIONALITY OF SLAVERY: INCLUDING PAETS FIEST AND SECOND. BY LYSANDER SPOONER. BOSTON: PUBLISHED BY BELA MARSH, NO. 25 CORNHILL. \^ 1847. Entered according to Act of Congress, in the year 1847, by LYSANDER SPOONER, In the Clerk's Office of the District Court of the District of Massachusetts. Stereolyped by GEORGE A. CURTIS; MMW ENOLAMD TYPE AND 8TBRB0TYPB FOCNDKRT. CONTENTS OF PART FIRST. PAGB CHAPTER I WHAT IS LAW? 5 « n. — WRITTEN CONSTITUTIONS, - - - - 15 « m. — THE COLONIAL CHARTERS; - - - - 21 rV. — COLONIAL STATUTES, 32 « v. — THE DECLARATION OF INDEPENDENCE, - 36 « VI. — THE STATE CONSTITUTIONS OF 1789 MEANING OF THE WORD "FREE," * VII. — THE ARTICLES OF CONFEDERATION, - 51 " VIII. — THE CONSTITUTION OF THE UNITED STATES, 54 « IZ. — THE INTENTIONS OF THE CONVENTION, - 114 « X. — THE PRACTICE OF THE GOVERNMENT, - 123 « XL — THE UNDERSTANDING OF THE PEOPLE, - 124 " XH. — THE STATE CONSTITUTIONS OF 1845, - 126 * Xra, - THE CHILDREN OF SLAVES ARE BORN FREE, 129 39 THB UNCONSTITUTIONALITY OF SLAVERY. CHAPTER I. WHAT IS LAW? Before examining the language of the Constitution, in regard to Slavery, let us obtain a view of the principles, by virtue of which law arises out of those constitutions and compacts, by which people agree to establish government. To do this it is necessary to define the term law. Popular opinions are very loose and indefinite, both as to the true defini- tion 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 circum- stances, 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 prmciple, whether mental, moral or phys- ical. 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 1* 6 THE TTNCONSTITUTIONALITY OF SLAVERY. 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 depart- ments : 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 liot permanent, universal and inflexible in its application, is no law, according to any correct definition of the term law. What, then, is that naUiral, universal, impartial and inflexible • principle, which, under all circumstances, necessarily fixes, deter- mines, defines and governs the civil rights of men ? Those rights of person, property, &c., which one human being has, as agains< 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 necessa- rily from them, keeps them ever in vieAV 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, 80 as to enact a special law for them. Wherever the cases have WHAT IS LAW { not been thus anticipated, the natural law prevails. We thus politically and judicially recognize the principle of law as originat- ing in the nature and rights of men. By recognizing it as origin- ating 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 para- mount 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 arbi- trary, partial and temporary rule must, of necessity, be of less obli- gation 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 ispeaking, no law but nattiral law. There is no other principle or rule, applicable to the rights of men, that is obligatory in compari- son 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 aatural 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 forma- tion of government, founded on contract, as all our governments 8 THE UNCONSTlTXTTIONALlTy OF SLAVE EY. profess to be. But in order that the contract of government may be valid and lawful, it must purport to authorize nothing incon- sistent with natural justice, and men's natural rights. It canaot 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 oi individuals — than to a single individual. They are a necessary attribute of man's nature ; and he can no more part with them — to government or anybody else — than Avith his nature itself. But the contract of government may lawfully authorize the adop- tion of means — not inconsistent with natural justice — for the better protection of men's natural rights. And this is the legiti- mate 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 con- tract, upon those who are parties to the contract, which creates the government, and authorizes it to pass rules and statutes to carry out its objects.* But natural law tries the contract of government, and declares it lawful or unlawful, obligatory or invalid, by the same rules by which it tries all other contracts between man and man. A con- tract 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 | xmlawful, void and of no obligation, simply because it is contrary ♦ It is olivious llial loi^islniion can liavo, in this country, no higher or other author- ity, than that which results from natural law, and tlie 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 author ity or sovereignty in our governments, as governments, or of any inherent riglii 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 divinf- right of kings to reign, or any other of tlic doctrines on which arbitrary government'. have been founded. And the idea of any necessary or inherent authority in legis lation, 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 govern- meot, it i« obligatory : if not, not. WHAT IS LAW? 9 to justice and men's natural rights. On the same principle, if tho majority, however large, of the people of a country, enter mto 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, destruc- tion. 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 can- not, by accepting office under a government? rid themselves of that paramount obligation, that all men are under, to declare, if they declare anything, that justice is law ; that government can have no lawful powers, except those with which it has been invested by lawful contract ; and that an unlawful contract for the establish- ment of government, is as unlawful and void as any other con- tract 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 govern- ment, state and national, which we call constitutions, are void, and unlawful, so far as they purport to authorize, (if any of ihem do authorize,) anything in violation of natural justice, or the natural 10 THE UNCONSTITUTIONALITY OF SLAVERY. 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, legis- lative, executive, judicial and popular, who voluntarily lend their aid to the execution of any of the unlawful purposes of the gov- ernment, 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, uni- versal and inflexible principle, which has its origin in the nature of man, keeps pace everywhere with the rights of man, as their shield and protector, binds alike governments and men, weighs by the same standard the acts of communities and individuals, and is paramount in its obligation to any other requirement which can be imposed upon men — instead, I say, of the term law being allowed to signify, as it really does, this immutable and overrul- ing principle of natural justice, it has come to be applied to mere arbitrary rules of conduct, prescribed by individuals, or combina- tions 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 vener- ation 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 unre- strained 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 obe- dience 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 com- mand of power, without reference to its justice or its injustice, its innocence or its criminality. And now, commands the most crim- inal, if christened with the name of law, obtain nearly as ready an WHAT IS LAW? 11 obedience, oftentimes a more ready obedience, than law and jus- tice 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 defini- tions are nevertheless, all, in themselves, uncertain, indefinite, mutable ; and therefore incapable of being standards, by a refer- ence 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 em- braces the essence of all the rest — is this: That " law is a rule of civil conduct, prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear." — Noah Webster. In this definition, hardly anything, that is essential to the idea of law, is made certain. Let us see. It says that, " Law is a rule of civil conduct, prescribed by the supreme power of a state." Wliat 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 unceitain 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. 12 THE UNCONSTITUTIONALITY OF SLAVEKy. 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 there- fore 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. Agaui. 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 fol- lows 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 legiti- mate law of that case, and judicial tribunals can take cognizance of no other. And it makes no diflTerence, on this principle, whether this com- bination of Avill 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 suffi- cient to comply with this definition, that the power be equal to the accomplishment of the object. And the will and power of one man arc tlierefore 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 \vi\\ and power are compe- tent to establish the law that is to govern an act, Avithout 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, Avhich the will and power of communities, or large bodies of men, may be WHAT IS LAW ? ' 13 united to accomplish And judicial tribunals are as much bound to recognize, as lawful, any act of injustice or crime, which the will and power of a single individual may have succeeded in accomplishing, as they are to recognize as lawful any act of in- justice, 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 noihing^xed 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 stale " — ■ and his will and power constitute, for the time being, the .aW within those limits ; and his acts are, therefore, for the time beingi 2 14 THE UNCONSTITUTIONALITY CF SLAVERY. 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 con» bined and in successful operation, for the present moment. Under this definition, law offers ho permanent guaranty for th*5 safety, liberty, rights or happiness of any one. It licenses all possible crime, violence and wrong, both by governments and in- dividuals. 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 laio is the rule, principle, obligation or requirement of natural justice ? Adopt this definition, and law becomes simple, intelligible, scientific; always consistent with itself; alv,rays 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 govern- ment can have no powers except such as individuals may ri^/i'/wZ/y delegate to it : that no law, inconsistent with men's natural rights, can arise out of any contract or compact of government : that con- stitutional law, under any form of government, consists only of those principles of the written constitution, that are consisttnt with natural law, and Tnan's Tiattiral rights ; and that any other princi- ples, 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 tend 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. WRITTEN CONSTITUTIONS. 16 It is possible, perhaps, that this doctrine would spare enough of our existing constitutions, to save our governments from the necessity of a new organization. But whatever else it might spare, one thing it would not spare. It would spare no vestige of that system of human slavery, which now claims to exist by authority of law."^ CHAPTER II. WRITTEN CONSTITUTIONS. Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals — let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative. In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law * The mass of men are so much accustomed to regard law as an arbitrary com- mand of those who administer political power, that the idea of its being a natural, fixed, and immutable principle, may perhaps want some other support than that of the reasoning already given, to commend it to their adoption. I therefore give them the following corroborations from sources of the highest authority. " Jurisprudence is the science of what is just and unjust." — Justinian. " The primary and principal objects of the law are rights and wrongs." — Black- stone. "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 (f* Blackstone. "Law. The rule and bond of men's actions ; or it is a rule for the well govern- ing of civil society, to give to every man that which doth belong to him." — Jacob's Law Dictionary. " Laws are arbitrary or positive, and natural ; the last of which are essentially just and good, and bind everywhere, and in all places where they are observed. * * * * Those which are natural laws, are from God ; but those which are arbitrary, are properly human and positive institutions." — Selden on Fortescue, C. 17, also Jacob's Laic 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." — 3 Snep. Abr. 356, also Jac. Laie Diet. 16 THE UNCONSTITUTIONALITY OF SLAVERY. contrary to natural right ; but shall admit, for the sake of the argu- ment, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal " All laws derive their force from the law of nature ; and those which do not, are accounted as no laws." — Fortescue, Jac. Law Did. " No law will make a construction to do wrong ; and there are some things whicli the law favors, and some it dislikes ; it favoreth those things that come from the order of nature." — 1 Jnsl. 183, 197. — Jac. Lmw Diet. " Of law no less can he acknowledged, than that her seat is the hosom of Grod, her Toice the harmony of the world. All things in heaven and earth do her homage ; the least as feeling her care, and the greatest as not exempted from her power." — Hooker. Blackstone speaks of law as "A science, which distinguishes thecriterions of right and wrong ; which teaches to estahlish the one, and prevent, punish or redress the other ; which employs in its theory the nolilest faculties of the soul, and exerts in its practice the cardinal virtues of the heart ; a science, which is universal in its nse and extent, accommodated to each individual, yet comprehending the whole community." — Blackstone's Lecture on the Study of the Law. "This law of nature heing coeval with mankind, and dictated by God himself, is of course superior in ohligation 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 medi- ately or immediately, from this original." — Blackstone, Vol. I, 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, {orjura naturce sunt immutabilia, and they are leg-es leffum" — (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 jus- tice, upon an appeal to the House of Ix)rds this inconsistency would be the conse- quence, 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, 1 know of no power in the ordinary forms of the constitution, that is vested with aulhonly to control it." It will he 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 Sf 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 th« WRITTEN CONSTITUTIONS. 17 rules of interpretation be observed. The most important of these rules, and the one to which ii will be necessary constantly to refer, is the one that all language must be construed " strictly" in favor 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 Parlia- ment 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 discus- sions 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 depart- ments 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 exiiibited 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 de- partment. There have been cases, few and far between, in which the United States courts have declared acts of state legislatures unconstitutional. But the history of the co-ordinate departments of the same governments has been, that the judicial sanction followed the legislative act with nearly the same unerring certainty, that the shadow follows the substance. Judicial decisions have consequently had the same effects in restraining the actions of legislatures, that shadows have m re- straining the motions of bodies. Why this uniform concurrence of the judiciary with the legislature? It is be- cause 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 amena- ble only to the legislature for their official character. They are made entirely inde- pendent 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 de- partments 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 legis- lation, 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 out- rages 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 it? 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. l,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 communi- ties ; in the construction also of which compacts, we have no other rule to resort 19, 2* 18 THE TNCONSTITUTIONALTTY OF" SLAVERY. 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 1)111 the law of nature : (that) being the only one to which all the communities are equally subject." — Blackstone, Vol. l,p. 43. "Those rights then which God and nature have established, and are therefor* 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 lo'he inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless tha owner shall himself commit some act that amounts to a forfeiture." — Blackstone, Vol. I, p. 54. " By the absolute rights of individuals, we mean those which are so in their primarj' and strictest sense ; such as would belong to their persons merely in a state t)f nature, and which every man is entitled to enjoy, whether out of society, or in il." — Blackstone, Vol. I, p. 123. " The principal aim of society (government) is to protect individuals in the enjoy- • ment 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 communi- ties. Hence it follows, (hat the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies ; so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human law is, or ought always to be, to explain, protect, and enforce such rights as are absolute ; which, in themselves, arc few and simple: and then such rights as are relative, which, arising from a variety of connex- ions, 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 lie more attended to, though in reality they are not, than the rights of the former kind." — Blackstone, Vol. \,p. 124. "The absolute rights of man, considered as a free agent, endowed with discern ment to know good from evil, and with power of choosing those measures which appear to him most desiral)le, arc usually summed up in one general appellation, and denominated the natural lil)crly of mankind. This natural liberty consists properly in a pov/er 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 al his creation, when he endowed him with the faculty of free will." —Black- . stone, Vol. I, p. 125. " Moral or natural liberty, (in the words of Burlamaqui, cli. 3, s. 15,) is the right, whicli nature gives to all mankind of disposing of their persons and property after the maimer tluy judge nwt 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." — Clirislian's note, Blackstone, Vol. 1, p. 126. "The law of Nature is antecedent and paramount to all human governments. * * * Every individual of the human race comes into the world with rights, which, if the whole aggregate of human power were concentrated in one arm, it could not . take away. * * * -phe Declaration of Independence recognizes no despotisn), monarchical, aristocratic, or democratic. It declares that individual man is po8- gessed of rights of which no government can deprive him." — Jotin Quincy Adams, All the foregoing definitions of law, rights and natural liberty, although some of them are expressed in somewhat vague and indefinite terms, nevertheless recognize the primary id \a, that law is a fixed principle, resulting from men's natural nghU ; WRITTEN CONSTITUTIONS. 19 overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clear- ness, to induce a court of justice to suppose a design to effect sach objects."^ and that therefore the acknowledgment and security of the natural rights of in- dividuals constitute the whole basis of law as a science, andaa-ine qua non of gov- ernnient 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 soir.e 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 aad 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 wer 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 protec- tion 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 con- ceded a part of his rights, and thus cheapened the character of all his rights in the eyes of those of whom he asks assistance. There would be as much reason in saying that a man must consent to have one of his hands tied behind him, in order that his friends might protect the rest of his body against an enemy, as there is in saying that a man must give up some of his rights in order that government may protect the remainder. Let a man have the use of both of his hands, and the enjoy- ment 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 v/ill 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 pro- tection of each other's rights, why bargain for the protection of an indejinUe portion (rf them, at the price of giving to the association itself liberty to violate the equally indefinite remainder? By such a contract, a man really surrenders everything, and secures nothing. Such a contract of government would be a burlesque on the wisdom of asses. Such a contract never was, nor ever will be voluntarily formed. Yet all our governments act on that principle ; and so far as they act upon it, they are as essentially usurping and tyrannical as any governments can be. If a man pay his proportion of the aggregate cost of protecting all the rights of each of tlM * United States va. Fisher, 2 Cranch, 390. 90 THE UNCONSTITUTIONALITY OF. SLAVERY. It will probably appear from this examination of the written con- stitutions, 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 defi- ance 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 tlie Declaration of Independence to the adoption of the Constitution of the United States in 17S9 ; and the third embrac- ing 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. memJiers of the association, he thereliy acquires a claim upoa 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 libeity is an inherent right of his nature and his faculties. It is an inherent right of his nature and his faculties to developc themselves freely, and without restraint from other natures and faculties, that have no superior prerogatives to his own. And this right has only this limit, viz., that he do not carry the exercise of his own liberty so far as to restrain or infringe the equally free development of the natures and faculties of others. The dividing line between the equal liberties of each must never be transgressed by either. This principle is the foundation and essence of law and of civil right. And legitimate government is formed by the voluntary association of individuals, for the mutual protection of each of them in the enjoy- ment of this natural liiierty, against those who may be disposed to invade it. Each individual being secured in the enjoyment of ihis lijjerty, must then take the rc- spr the prcnrnble, 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 supplloH. were free persons, voluntary emigrants, that were to be induced to go to the plantations as hired laliorcrs, as are those who, at this day, arc induced, in large nnmticrs, and by the special agency of the English government, to go to the British West Indies. In order to facilitate this emigration, it was neccssiiry that "the trade to and from Africa" should be encouraged. Ami the form of the pre- amble is such as It properly mitjht have been, If such had been the rciil object of Parllaiririit. Such Is \indoulite(lly the true legal meanlngof this preaniMe, for this Oieanlnc being consistent with natural ritcht, public policy, and with the funda- mental principles of English law, legal rules of consij-uclion imperatively require THE COLONIAL CHARTERS. 29 the legislation of the colonies to be " consonant to reason, and not repugnant or contrary, but conformable, or agreeable, as nearly as 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 men- tions such a thing as the transportation of slaves to, or the sale of slaves in " the planliiiious and colonies." The first section of the act is in these words, to wit; " That it shall and niay 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 g-oods, wares and merchandizes, as he or they shall think fit, without any restraint whatsoever, save as is herein after expressed." Here plainly is no authority given " to trade and traffic " in anything except what is known either to the English law, or the law of nature, as "goods, wares, or merchandizes " — among which men were not known, either to the English law, or the law of nature. * The second section of the act is in these words : " That all his majesty's subjects, who shall trade to or from any of the ports or places of Africa, between Cape Blanco and the Cape of Good Hope, shall forever hereafter be a body corporate and politic, in name and in deed, by the name of the Company of Merchants Trading to Africa, and by the same name shall have per- petual succession, and shall hr.ve 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 trsmsport slaves to the plantations and colonies. The twenty-ninth section of the act is in these words: "And be it further enacted, by the authority aforesaid, that no commander or master of any ship trading to Africa, shall by fraud, force or violence, or by any other indirect practice whatsoever, take on board, or carry away from the coast of Africa, any negro or native of the said country, or commit, or sufier to be commit- ted, any violence on the natives, to the prejudice of the said trade ; and that every person so oflTending shall, for every such oflence, 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 at 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 a.s practically to interpose no' obstacle to the general success of the trade, still, as no part of the whole statute gives any authority to this " Company of Merchants trading to Africa" to transport men from Africa against their will, and as this twenty-ninth section contains a special prohibition to individuals, under penalty, to do so, no one can pretend that the trade was legalized. If the penalty had been but one pound, instead of one hundred pounds, it would have been sufficient, in law to haro 3* so THE UNCONSTITUTIONALITY OF SLAVERY. circumstances would allow, to the laws, statutes and rights of the realm of England." That decision, then, if correct, settled the 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 passible legal inference from the statute, so far as covccrns the " sup- jilying t/ie 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 ahhough there is, in this statute, no authority gircn for — but, on the con- trary, 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 cus- toms 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 positiv* . and explicit legislation could transplant it into any other part of the empire. The implications, furnished by the act, in favor of the toleration ol' 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 ''oflicers of his majesty's navy," as shall be appointed for the purpose, " sliall inspect and examine 'the state and condition of the forts and settlements on the coast of Africa, in the possession of the Royal African Company, and of the number of the soldiers therein, and also the state and condition of the military stores, castles, s/ai'cs, canoes and other vessels and things, belonging to the said company, and nccessar]/ 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 appro- Ikation (if Parliament. But the most distinct approbation given to slavery by the act, is implied in the twenty-eighth section, in these words: " That it shall and may be lawful for any of his majesty's subjects trading lo 'Africa, for the security of their goods and slaves, to erect houses and warehouses, under the protection of the said forts," &c. Alihoui^h even this language would not be strong enongh 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 ex- pressly established, (as it had been in the North American colonies,) yet it suffi- eiently evinces that Parliament approved of Englishmen holding slaves in ths settlements on the coast of Africa, in conformity with the customs of that country. JJut 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 •aywhere, except upon the coast of Africa. Had slavery been positively ud ME COLONIAL CHARTERS. law both for England and the colonies. And if so, there was no constitutional slavery in the colonies up to the time of the revolu tion. explicitly legalized on the coast of Africa, it would still have been a local institu- tion. 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 la.iguag'i 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 con- formity 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 im- ported 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 tne oroperty of those who introduced them. 32 THE UNCONSTITUTIONALITY OF SLAVERY. CHAPTER IV. COLONIAL STATUTES. But the colonial legislation on the subject of slavery, was not only void as being forbidden by the colonial charters, but in many of the colonies it was void for another reason, viz., that it did rwt 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, occa- sion, and time itself from whence it Avas created, is erased from the memory. It is so odious that nothing can be suffered to sup- port 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 distin- guished 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. COLONIAL STATUTES. 33 When slavery was first introduced into the country, there were no laws at all on the subject. Men bought slaves of ihe slave traders, as they would have bought horses ; and held tliem, and compelled them to labor, as they would have done horses, that is, by brute force. By common consent among the white race, this practice was tolerated without any law. At length slaves had in this way become so numerous, that some regulations became necessary, and the colonial governments began to pass statutes, which assumed the existence of slaves, although no laws defining the persons who might be made slaves, had ever been enacted. For instance, they passed statutes for the summary trial and punishment of slaves ; statutes permitting the masters to chastise and baptize their slaves,"* and providing that baptism should not be considered, in law, an emancipation of them. Yet aU the while no act had been passed declaring who might be slaves. Possession was apparently all the evidence that public sentiment *" Chastise.''' An act passed in South Carolina in 1740, authorized slaves to sue Ibr their liberty, by a guardian appointed for the purpose. The act then provides that if judgment be for the slave, he shall be set free, and recover damages ; " but in case judgment shall be given for the defendant, (the master,) the said court is hereby fully empowered to inflict such corporeal punishment, not extending to life or limb, on the ward of the plaintiff, (the slave,) as they in their discretion shall see fit." — Brevard's Digest, vol. 2, p. 130. "Baptize." In 1712 South Carolina passed this act: " Since charity and the Christian religion which we profess, obliges us to wish well to the souls of all men, and thai 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 tliereby 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 whatso- ever, to receive and profess the Christian faith, and be thereunto baptized. But that notwithstanding such slave or slaves shall receive and profess the Christian reli- gion, and be baptized, he or they shall not thereby be manumitted or set free, or his or their owner, master or mistress lose his or their civil right, property and authority over such slave or slaves, but that the slave or slaves, with respect to his or their servitude, shall remain and continue in the same state and condition, that he or they was in before the making of this act." — Grimke,p. 18. Brevard, vol. 2, p. 229. In 1667, the following statute was passed in Virginia: " Whereas, some doubts have arisen whether children that are slaves by birth, and by the charity and piety of their owners made partalcers of the blessed sacra- ment of baptism, should by virtue of their baptism be made free ; It is enacted and declared by this grand assembly, and the authority thereof, that the conferring of baptism doth not alter the condition of the person as to his bondage or freedom ; that divers masters, freed from this doubt, may more carefully endeavour the propa- gation of Christianity by permitting children, though slaves, or those of greatei growth, if capable to be admitted to that sacrament." — Hening's Statutes, volU' p. 860. 34 THE UNCONSTITUTIONALITY OF SLAVERY. 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 pur- pose 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 gene- rally, and make them slaves. Slavery was introduced in 1620, but no act was passed even pvirporting to declare who might be slaves, until 1670. In that year a statute was passed in these words : " That all servants, not being Christians, imported into this country by shipping, shall be slaves for their lives."* This word "servants" of course legally describes individuals kno\vn as such to the laws, and distinguished as such from other persons generally. But no class of Africans " imported," were known as " servants," as distinguished from Africans generally, or in any manner to bring them within the legal description of " servants," as here used. In 1682 and in 1705 acts were again passed declaring " that all servants," &c., imported, should be slaves. And it was not until 1748, after slavery had existed an hundred and twenty-eight years, that this description was changed for the following : " That all persons, who have been or shall be imported into this colony," &c., &c., shall be slaves.! In 1776, the only statute in Virginia, under which the slave- holders 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.t *Hening, vol. 2, p. 233. tHening vol. 5, p. 547-8. t In I7r,3 Virginia passed a statute, occupying some twelve or fifteen pages of the gtatute ip- ject 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. * * In the convention that framed tlie constitution, when this clause was under discussion, " servants " were spoken of as a distinct class from " slaves." Foi iostaDce, " Mr. Butler and Mr. Pickney moved to require ' fugitive slaves and ser j^ THE CONSTITUTION OF THE UNITED STATES. 69 2. " Held to service or lahor^'' 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, v^^ho 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 ovi^ned 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 atten- dant 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 " ZaziKLITy OF SLAVEKY. 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., 1st, 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 fol- lows 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 gov- ernments 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 peo- ple, as individuals. This " state-rights " doctrine has been declared unconstitutional by reiterated opinions of the Supreme Court of the United States ;=* 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 no,t 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 government (of the U. S.) proceeds directly from the people ; is 'or- dained and established' in the name of the people." — RfCulloch vs. Maryland, 4 Whcaton, 403. " The government of the Union is emphatically and truly, a government of the people ; and in form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." — Same, pages 404, 405. " The constitution of the United States was ordained and established, not by the United States in their sovereign capacities, hut emphatically, as the preamble of the constitution declares, by 'the people of the United States.' "—iWurtmVi. Hunter' » leaiee, 1 Wheaton, 324. THE CONSTITUTION OF THE UNITED STATES. 93 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 vpas thus ratified, I say, some of the slave States have claimed that the general government was a league of States, instead of a govern- ment 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 Slates 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 constitu- tional 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 pos- terity, 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 bless- ings of liberty to ourselves, and our posterity." This purpose of the national constitution is a law paramount to all State constitu- tions ; 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, anything in the con- stitution 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 legisla- tion, 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 im- posed hy the State governments, upon native inhabitants of the country, were, of themselves, sufficient to deprive such inhabitants of the citizenship, which would otherwise have been conferred 94 THE UNCONSTITUTIONALITY OF SLAVERY. 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 con- stitution 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 citi- zenship 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 con- tradiction. 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 throv/n 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 r«. sponsible for its payment ? Sup- THE CONSTITUTION OF THE UNITED STATES. 95 pose a poll tax were laid upon a man, whom the State laws should pretend to call a slave. Are the United States under the neces- sity 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 he 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 lia- bility 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 recog- nize him as not having the ownership of his own person. Second. " The Congress shall have power to regulate com- merce 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 obvi- ously 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 anybody) 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 individ- ual — 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 — " anything in the constitution or laws of any State to the contrary notwithstanding." Yet this right of carry- ing 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) Wf THE UNCONSTITUTIONALITY OF SLAVERY. is therefore lawful, except what is prohibited by positive legisla- tion. Traffic with the slaves, either by people of foreign nations, or by people belonging to other States than the slaves, hf s 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 consti- tution 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 — " anything 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 re.spective writings and discoveries." Suppose a man, whom a State may pretend to call a slave, should make an invention or discovery — Congress have un- doubted power to secure to such individual himself, by patent, the ^' ezcbmve" — (mark the word) — the "exclusive right" to his invention or discovery. But does not this " ezclitsive 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 rtay 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 cap- tures 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 «oldiers and sailors, hj contract with themselves, and to pay tbem THE CONSTITUTION OF THE UNITED STATES. 97 tneir 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 sol- diers and sailors ? Certainly they have, in defiance of all State laws and constitutions whatsoever j and they have already as- serted 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 inhab- itants 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 sanc- tions the legality of slavery. Sixth. " The Congress shall have power to provide for the organizing, arming and disciplining the militia, and for govern- ing such part of them as may be employed in the service of the United States, reserving to the States respectively the appoint- ment 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 readij to be " called forth " " to execute the laws of the Union, suppress insurrections, and repel invasions,") as they ha ve thus to enroll and arm those whom the States call free ? Can the State govern- ments determine who may, and who may not, compose the militia of the " United States ? " Look, too, at this power, in connection with the second amend ment to the constitution ; which is in these words : 9 98 THE UNCONSTITUTIONALITY OF SLAVERV. " A well regulated militia being necessary to the security of ? free State, the right of the people to keep and bear arms shall not be infringed." These provisions obvionsly 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 Congi'ess have power to mclude 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 conde- scend 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 govern- ments, 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 liber- ties; for this constitutional right to keep arms implies the con- stitutional 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 amy 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 THE CONSTITUTION OF THE UNITED STATES. 99 enter into all contracts that have a natural obligation, and to have those contracts recognized by law as valid, is a right plainly inconsistent w^ith the idea that men can constitutionally be mad'C slaves. This provision, therefore, absoj\itely prohibits the passag-s of slave laws, because laws that make men slaves must necessaril}! impair the obligation of all their contracts. Eighth, Persons, whom some of the State governments recog- nize as slaves, are made eligible, by the constitution of the United States, to the office of President of the United States. The con- stitutional 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,"* who have resided * That is, male persons. The constitution, whenever it uses the pronoun, in speaking of the President, uniformly uses the masculine gender — from whioh it may be inferred that male persons only were intended to be made eligible to the office. Perhaps this inference might not be allowable, if either the office, or eligibility to the office, were anything that any one could naturally claim as a right. But neither can be claimed as a right. The office is not given to ariy one because he has a right to it, nor because it maybe even a benefit to him. It is conferred upon him, or rather confided to him, as a trust, and solely as a trust, for the sole benefit of the people of the United States. The President, as President, is not supposed to have any rights in the office on his own account ; or any rights except what the people, for their own benefit, and not for his, have voluntarfiy chosen to grant to him. And the people have a right to confide this trust to whomsoever they please, or to whomsoever they think it will be most for tlieir interest to confide it. And no one can say that his rights are either violated or withheld, merely because he is not selected for the trust, even though his real fitness for the tru«t should be alto- gether superior to that of the one selected. He can only say that his merits or qualifications afe not properly app-eciated. The people have naturally the same free, unqualified, irresponsible right to select their agents or servants, according to their pleasure or discretion, that a private individual has to select his, without giving any one, who is not selected, any reason to say that his rights are fioiated. The most fit person has no more claim, in the nature of a right, to the oflfice, than a person the least fit ; he has only qualifications ; no one has rights. The people, then, who establish this office, and for whose benefit alone it is to be filled, and whose servant he President is, have naturally an unqualified right to exercise their free pleasure or discretion in the selection of the person to fill it, without giving any one, who is not selected, any ground for saying that his rights are withheld, qr for sajing anything other than that his merits «r abilities are cot 100 THE UNCONSTITUTIONALITY OP SLAVERY. within the United States fourteen years, have attained the age oi thirty-five years, and are either natural horn citizens, or were citizens of the United States at the time of the adoption of the con stitution, are eligible to the office of President. No other qualifi- cations 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 adop- tion 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 adop- tion of the constitution. The confederation had no citizens. It properly estimated. The people, for example, have a right to say, as in their con- stitution they have said, that they will confide this trust to no one who is not thirty-five years old ; and they do not thereby infringe or withhold any of the rights of those who are under thirty-five years old ; although it is possible that they do not properly estimate their fitness for the office. So they have a perfect right to say that they will not confide this trust to women ; and women cannot say that their ri^/ils are thereby withheld ; although they are at liberty to think and say that their qualifications for the office are not appreciated. Inasmuch, then, as no rig-hts are withheld or violated by making male persons only eligible to the office, we are at perfect liberty to construe the language of the constitution according to its granmiatical meaning, without seeking to go beyond it. According to this meaning, male persons only are eligible — for the constitu- tion speaks of "the President" as a sirifflc individual ; and very'pro])erly too — for although different individuals may fill the office, yet only one can till it at a time, and the office is prcsumetl never to be vacant. Il is therefore of the officer, as a siiii^ic aiid perpetual one, and not of the different individuals, (as individuals,) who niiiy at difieront times fill the office, that the constitution speaks, when it speaks of '' tlie President." And in speaking of this perpetual ofticer as a single individual, it uniformly uses the masculine pronoun. Inasmuch as it would be a plain violation of grammatical rules to speak of a single and particular individual as a male person, if the individual were a female, it may (and ])n)bably must) bp inferred that the constitution did not intend that the office should ever be filled by any other than a male person. THE CONSTITUTION OF THE UNITED STATES. 101 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 bv the adoption of the constitution, then all " the people of the United States" were necessarily made citizens by it — for no discrimina- tion 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 ciffzens, 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 bom 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 Presi- 9* 102 THE TTNCONSTITTTTIONALITY OF SLAVERY. dent. 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 repre- sentative and senator of the United States ; and therefore canno' 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 have 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 govern- ment 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 govern- ment 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 recog- nized the legality of slavery ? Tenth. The constitution declares that " The privilege of the THE CONSTITUTION OF THE UNITED STATES. 103 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 gov- ernment ; 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 sovie formal ivrit or process, authorized by laiv, issued by the government, according to established principles, and charging the person held by it loith 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 ; 1st, that the restraint be imposed by special command of the government ; 2d, that there be a general law authorizing I'estraints for specific causes ; and, 3d, that the government, previously to issuing pro- cess for restraining any particular individual, shall itselfj by its proper authorities, take express cognizance of, and inquire cau- tiously 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 pris- oner before the court, and show the authority by which he 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 requir- ing him to hold him in custody, he will be ordered to let him go free. Hence all 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 104 THE UNCONSTITUTIONALITY OF SLAVERY^ 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 other- wise. 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 corpits 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 prin- ciple of law, in regard to property, that simple possession is prima facie evidence of ownership ; and therefore any man, who Avas 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 on its face. The writ of habeas corptis, 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. Tliis 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 THE CONSTITUTION OF THE UNITED STATES. 105 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.* And it is probably the only absolute guar- anty, 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 legis- lature, or of the executive, (when the legislature cannot be con- vened,) against domestic violence." Mark the strength and explicitness of the first clause of this section, to wit, " The United States shall guaranty 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 indi- viduals 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 consti- tutional 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, infer- ences 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 * Somerset was not a citizen of Eng'land, or entitled, as such, to the protection ol the English law. The privilege of the writ of habeas corpus was granted to him on the ground simply of his being a man. 106 THE ITNCONSTITtJTIONALITY OF SLAVERY. 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 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 gov- ernment, 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 num- ber of the people (if indeed any number of the people, are disfran- chised 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 con- tradictory 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 trmmph 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 ap- pear to regard a State as a single individual, capable of managing his own affairs, and of course unwilling to tolerate the intermed- dling 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, THE CONSTITUTION OF THE UNITED STATES. 107 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 pro- tection, 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 govern- ment. 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 over- look 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 lliis fancy, however, they undoubtedly overrate the legal, and perhaps also the moral effect of such superlative fastidiousness ; for even if there were "wo 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 oppo- site, 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 guar- anties of slavery."^ * From whom come these objections to the " propriety " of the general govern- ment'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 Tput down republicanism 7 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 re- quire them to interfere to protect the weak against the tyranny of the strong, or to maintain justice, liberty, peace and freedom. 108 THE UNCONSTITUTIONALITY OF SLAVERY. But the " propriety," and not only the propriety, but the neces- ity of this guaranty, may be maintained on still other grounds. One of these grounds is, that it would be impossible, consist- -intly with the other provisions of the constitution, that the general government itself could be republican, unless the State govern- fjents were republican also. For example. The constitution /rovides, in regard to the choice of congressional representatives, that " the electors in each State shall have the qualifications requi- site for electors of the most numerous branch of the State legis- lature." It was indispensable to the internal quiet of each State, that the same body of electors, who should participate in the suf- frage 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 obvi- ously give rise at once to implacable and irreconcilable feuds, that would result in the overthrow of one or the other of the govern- ments within the State. Harmony or inveterate conflict was the only alternative. As conflict would necessarily result in the de- struction 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 repre- sented 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 repub- lican 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 govern- ment, within each State, should be the same as for the State government, it is apparent that unless the several State govern- ments were all formed on one general plan, or unless the electors of all the States were united in the acknowledgment 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 sup- THE CONSTITUTION OF THE UNITED STATES. I09 port 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 govern- ments 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 Rus- sia, 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 govern- ment, 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 repre- sentatives 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 ex- treme 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 accomplish- ment 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 m.< 10 110 THE UNCONSTinmONALITY OF SLAVERY. 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 th€ 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 ob- jects of government. This principle, therefore, they adopted as the corner-stone of their national government ; and, as a matter of neces- sity, 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 " guarantying 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 minori- ties, and defeated their enjoyment of the national constitution, but also introduced such factions and feuds into the national govern- ment 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 guaranty 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 V8istly 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 THfi CONSTITUTION OF THE UNITED STATES. Ill 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 Slates, if all the slaves in the country had been freemen, w^ith all the wants and energies of freemen ? And their masters had had all the thrift, industry 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 her- self 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 gov- ernment — 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 imperti- nent 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, con- tribute 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.* The agriculture of the slave States is carried on with rude and clumsy nnplements ; 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 ? Ygt we * JEli Whitney. 112 THE UNCONSTITTJTIONALITT OF SLAVERY. of the free States give to the south a share in the incalculable wealth produced hy 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 Avant, too, of an enforcement of this guaranty of a republican form of government to each of the States, the popula- tion of the country, by the immigration of foreigTiers, 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 a 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 republican- ism o£ each of the States ; an interest, too, that is indicated in tho same section in which this republicanism is guarantied. This interest results from the fact that the nation are pledged to " pro- THE CONSTITUTION OF THE UNITED STATES. 113 tect" 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 bands, 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 subject- ing the remainder of the people to the degradation and injustice of slavery ? Or did the nation undertake only to guaranty 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 inva- sion. 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 rej)ubli- can government should be inserted in the same paragraph with that for protection against invasion, in order that both the principle 10* 114 THE UNCONSTITUTIONALITY OF SLAVERV. 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 Slate govern- ments. 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 si7ie qua non to any rational contract of union ; and the enforce- ment 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 implica- tions, by which it is claimed that the national constitution sanc- tions, legalizes, or even tolerates slavery. CHAPTER IX. THE INTENTIONS OF THE CONVENTION. The intentions of the framers of the constitution, (if we could have, as we cannot, any legal knowledge of them, except from the words of the constitution,) have nothing to do with fixing the legal meaning of the constitution. That convention were not delegated to adopt or establish a constitution ; but only to consult, devise and recommend. The instrument, when it came from their hands, was a mere proposal, having no legal force or authority. It finally derived all its validity and obligation, as a frame of government, from its adoption by the people at large.* Of course the inten- tions -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 consti- * 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 oi pretension to it." "The people were at perfect liberty to accept or reject it ; and iheir act was final." — M'CuUock \s. Maryland, — 4 Whealon 403 — 4. THE INTENTIONS OF THE CONVENTION. 115 tution, the people acted as legislators, in the highest sense in which that v/ord can be applied to human lawgivers. They were establishing a law that was to govern both themselves and their government. And their intentions, like those of other legislators, are to be gathered from the words of their enactments. Such is the dictate of both law and common sense.* The instrument had * The Supreme Court of the United States say : " The intention of the instrument must prevail : this intention must be collected Ji-om its words." — Ogden\s. Saunders, — 12 Wheaton, 332. " The intention of the legislature is to be searched for in the words which the legislature has employed to convey it." — Schr. Paulina's Cargo vs. United States, — 7 Cranch, 60. Judge Story, in giving an opinion upon the bankrupt act, replies as follows to an argument analogous to that, which is often drawn from the debates of the con- vention, in opposition to the language of the constitution itself He says : " At the threshold of the argument, we are met with the suggestion, that when the (Bankrupt) act was before Congress, the opposite doctrine was then maintained in the House of Representatives, and it was confidently stated, that no such juris- diction was conferred by the act, as is now insisted on. What passes in Congress upon the discussion of a bill can hardly become a matter of strict judicial inquiry ; and if it were, it could scarcely be affirmed, that the opinions of a few members, expressed either way, are to be considered as the judgment of the whole House, or even of a minority. But, in truth, little reliance can or ought to be placed upon such sources of interpretation of a statute. The questions can be, and rarely are, there debated upon strictly legal grounds, with a full mastery of the subject and of the just rules of interpretation. The arguments are generally of a mixed character, addressed by way of objection or of support, rather with a view to carry or defeat a bill, than with the strictness of a judicial decision. But if the House entertained one construction of the language of the bill, nan constat, that the same opinion was entertained either by the Senate or by the President ; and their opinions are cer- tainly, in a matter of the sanction of laws, entitled to as great weight as the other branch. But in truth, courts of justice are not at liberty to look at considerations of this sort. We are bound to interpret the act as we find it, and to make such an interpretation as its language and its apparent objects require. We must take it to be true, that the legislature intend precisely what they say, and to the extent which the provisions of the act require, for the purpose of securing their just opera- tion and effect. Any other course would deliver over the court to interminable doubts and difficulties ; and %ce should be compelled to guess what was the tare, from the loose commentaries of different debates, instead of the precise enactments of the statute. Nor have there been wanting illustrious instances of great minds, which, after they had, as legislators, or commentators, reposed upon a short and hasty opinion, have deliberately withdrawn from their first impressions, when they came upon the judgment seat to re-examine the statute or law in its full bearings." — Mitchell vs. Great Works Milling and Manufacturing Company. Story's Circuit Court Reports, Vol. 2, page 653. If the intentions of legislatures, who are invested with the actual authority of prescribing laws, are of no consequence otherwise than as they are expressed in the language of their statutes, of how much less consequence are any unexpressed intentions of the framers of the constitution, who had no authority to establish a constitution, but only to draft one to be offered to the people for their voluntarir ftdoption or rejection. 116 THE UNCONSTITUTIONALITY OF SLAVERY. been reported by their committee, the convention. But the people did not ask this committee what was the legal meaning of the instrument reported. They adopted it, judging for themselves of its legal meaning, as any other legislative body would have done. The people at large had not even an opportunity of consultation with the members of the convention, to ascertain their opinions. And even if they had consulted them, they would not have been bound at all by their opinions. But being unable to consult them, they were compelled to adopt or reject the instrument, on their own judgment of its meaning, without any reference to the opinions of the convention. The instrument, therefore, is now to be regarded as expressing the intentions of the people at large ; and not the intentions of the convention, if the convention had any intentions differing from the meaning which the law gives to the words of the instrument. But why do the partisans of slavery resort to the debates of the convention for evidence that the constitution sanctions slavery ? Plainly for no other reason than because the words of the instru- ment do not sanction it. But can the intentions of that conven- tion, attested only by a mere skeleton of its debates, and not by any impress upon the instrument itself, add anything to the words, or to the legal meaning of the words of the constitution ? Plainly not. Their intentions are of no more consequence, in a legal point of view, than the intentions of any other equal number of the then voters of the country. Besides, as members of the con- vention, 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 inten- tion 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 termi- THE INTENTIONS OF THE CONVENTION. 117 nated. 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 con- stitution itself to be impeached and destroyed, and free govern- ment overturned, on the authority of a few meagre snatches of argument, intent or opinion, uttered by a few only of the mem- bers ; 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 pub- lication of his papers ? If anything could excite the utter contempt of the people of this nation for the miserable subterfuges, to which the advocates of slavery resort, it would seem that their offering such evidence as this in support of their cause, must do it. And yet these, and such as these mere fragments of evidence, all utterly inadmissible and worthless in their kind, for any legal purpose, constitute the warp and the woof, the very sine qua nan 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?"^ * " 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 pro- bably knows whom. In his preface to his first volume, containing the debates in the Massachusetts and New York conventions, he says : " In the compilation of this volume, care has been taken to search into contem- porary publications, in order to make the work as perfect as possible ; siill, however, the editor is sensible, from the daily experience of newspaper reports of the pres- ent time, that the sentiments they contain may, in some instances, have been in- accurately 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 sub- stance of the debates, as well as their general course, are accurately preserved." In his preface to the third volume, embracing the North Carolina and Pennsylva- nia conventions, he says : "The first of the two North Carolina conventions is contained in this volume ; 118 THE UNCONSTITUTIONALITY OF SLAVERY But even if the unexpressed intentions, which these nr tes of debate ascribed to certain members, had been participated in by the whole convention, we should have had no right to hold the people of the country at large responsible for them. This conven- tion sat with closed doors, and it was not until near fifty years after the people had adopted the constitution itself, that these pri- vate intentions of the framers authentically transpired. And even now all the e\ddence 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 partici- pated in these intentions — what then? Any forty or fifty men, like those who framed the constitution, may now secretly concoct another, that is honest in its terms, and yet in secret conclave confess to each other the criminal objects they intended to accom- plish 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 crim- inal and shameless purpose of its originators ? The members of the convention, as such, were the mere scriveners of the constitution ; and their individual purposes, opin- the second convention, it is believed, was neither systematically reported nor print- ed." 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 con suited 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, to preference to adopting the law of the constitutioh itself. In this way they manu %cture law strong enough to bind three millions of men in^slavery. THE INTENTIONS OF THE CONVENTION. 119 ions 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 express- ions of the scriveners of any other contract can be offered to prove the intentions of the true parties to such contract. As fram- ers 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 adop- tion 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 mean- ing by a bare majority. If the instrument had contained any tangible sanction of slavery, the people, in some parts of the country certainly, would sooner have had it burned by the hands of the common hangman, than they would have adopted it, and thus sold themselves as pimps to slavery, covered as they were with the scars they had received in fighting the battles of freedom. And the members of the convention knew that such was the feeling of a large portion of the people ; and for that reason, if for no other, they dared insert in the instrument no legal sanction of slavery. They chose rather to trust to their craft and influence to corrupt the government, (of which they themselves expected to be impor- tant 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 conven- tion. 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 w^ould 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 120 THE TTNCONSTITUTIONALITY OF SLAVERY. the hands of such a convention, unstained with any legal or tangi- ble sanction of slavery, were the people — who, from the nature of the case, could not assemble to draft one for themselves — bound either to discard it, or hold themselves responsible for all the secret intentions of those who had drafted it ? Had they no power to adopt its legal meaning, and that alone ? Unquestionably they had the power ; and, as a matter of law, as well as fact, it is equally unquestionable that they exercised it. Nothing else than the constitution, as a legal instrument, was offered to them for their adoption. Nothing else was legally before them that they could adopt. Nothing else, therefore, did they adopt. This alleged design, on the part of the convention, to sanction slavery, is obviously of no consequence whatever, unless it can be transferred to the people who adopted the constitution. Has any such transfer ever been shown ? Nothing of the kind. It may have been known among politicians, and may have found its way into some of the State conventions. But there probably is not a tittle of evidence in existence, that it Avas 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 w-as 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 mean- while 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 newspa- pers now do. The consequence must have been that the people at large knew nothing of the intentions of the framers of the con- stitution, but from its words, until after it \vas adopted. Never- theless, it is to be constantly borne in mind, that even if the people had been fully cognizant of those intentions, they w'ould not therefore have adopted them, or become at all responsible for them, so long as the intentions themselves were not incorporated in the instru- ment. 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 V>lilicians, that would naturally swarm around the birth-place I THE INTENTIONS OF THE CONVENTION. l2l 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 accom- plishment. 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 con- vey 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 Jiave 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 judi- • ciary, (whether the people intended it or not,) have proved them- selves to be thus much, at least, more shameless than the people, or the convention. Yet that is not what ought to have been ; expected of judicial tribunals. And whether such were really the intention of the convention, or the people, is, at best, a matter of conjecture and history, and not of law, nor of any evidence cogniz- le by any judicial tribunal. '"hy should we search at all for the intentions, either of the ^vention, or of the people, beyond the words which both the con- ?ntion and the people have agreed upon to express them ? What the object of written constitutions, and written statutes, and ritten contracts ? Is it not that the meaning of those who make |iem may be known with the most absolute precision of which ftnguage is capable ? Is it not to get rid of all the fraud, and uncertainty, and disagreements of oral testimony ? Where would \e our constitution, if, instead of its being a written instrument, it pad been merely agreed upon orally by the members of the conven- poix? And by them only orally reported to the people? And / 122 THE UNCONSTITUTIONALITY OF SLAVERY. only this oral report of it had been adopted by the people ? And all our evidence of what it really was, had rested upon reports of what Mr. A. and B., members of the convention, had been heard to say ? Or upon Mr. Madison's notes of the debates of the convention ? Or upon the oral reports made by the several members to their respective constituents, or to the respective State conventions ? Or upon flying reports of the opinions which a few individuals, out of the whole body of the people, had formed of it when they adopted it ? No two of the members of the con- vention 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 Ajnsequence 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 raay chance to furnish. And yet, to throw aside the vmtten instru- ment, 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 eflfect. 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 scrive- ners or framers of it had secret and knavish intentions, which do not appear on the face of the instrument, then perfect license is given to the scriveners of constitutions to contrive any secret scheme of villany they may please, and impose it upon the people as a system of government, under cover of a written instrument that is so plainly honest and just in its terms, that the people readily agree to it. Is such a principle to be admitted in a THE PRACTICE OF THE GOVERNMENT. . 23 country where the people claim the prerogative of establishing their own government, and deny the right of anybody to impose a government upon them, either by force, or fraud, or against their will ? Finally. The constitution is a contract; a written contract, consisting of a certain number of precise words, to which, and to which only, all the parties to it have, in theory, agreed. Mani- festly neither this contract, nor the meaning of its words, can be changed, without the consent of all the parties to it. Nor can it be changed on a representation, to be made by any number of them less than the whole, that they intended anything different from what they have said. To change it, on the representation of a part, without the consent of the rest, would be a breach of contract as to all the rest. And to change its legal meayiing, without their consent, would be as much a breach of the contract, as to change its words. If there were a single honest man in the nation, who assented, in good faith, to the honest and legal meaning of the constitution, it would be unjust and unlawful towards him to change the meaning of the instrument ao as to sanction slavery, eren 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, vvho adopted the constitution in good faith, and with the intent that its legal meaning should be carried into effect, its legal mean- ing would nevertheless remain the same ; for no judicial tribunal could lawfully allow the parties to it to come into court and allege their dishonest intentions, and claim that they be substituted for the legal meaning of the words of the instrument. CHAPTER X. THE PRACTICE OP THE GOVERNMENT. The practice of the government, under the constitution, has not altered the legal meaning of the instrument. It means now what it did before it was ratified, when it was first offered to the people for their adoption or rejection. One of the advantages of a written constitution is, that it enables the people to see what its character is before they adopt it ; and another is, that it enables them to see 124 THE UNCONSTITUTIONALITY OF SLAVERY. 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 instru- ment 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 govern- ment have placed upon the instrument ; but only what meaning they were hound to place zipon it from the beginning. The only question, then, to be decided, is, what was the mean- ing 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 uninten- tional, of which the government may have since been guilty. CHAPTER XI. THE UNDERSTANDING OF THE PEOPLE. Although the inquiry may be of no legal importance, it may nevertheless be one pertinent to the subject, whether it be matter of history even — to say nothing of legal proof — that the people of the country did really understand or believe that the constitu- tion sanctioned slavery ? Those who make the assertion, are THE UNDERSTANDING OF THE PEOPLE. 125 bound to prove it. The presumption is against them. "Where is their contrary history ? They will say that a part of the people were actually slavehold- ers, 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 excep- tion, 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 dispropor- tionate 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-slave- holders 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 under- stand, 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. 11# 126 THE UNCONSTITUTIONAUTY OF SLAVERY. 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 con- stitutions 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 strong- est slaveholding States had free constitutions — -when not one of the separate States, acting for itself, would have any but a free constitution — that the whole thirteen, when acting in unison, should concur in establishing a slaveholding one ? The idea is preposterous. The single fact that all the State constitutions were at that time free ones, scatters forever the pretence that the major- ity of the people of all the Stales 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 innu- merable and powerful appliances of slaveholders, to wrestle with and strangle slavery. But to suppose that the nation at large did not look upon the constitution as destined to destroy slavery, whenever its principles should be carried into full effect, is obvi- ously to suppose an intellectual impossibility ; for the instrument was plain, and the people had common sense ; and those two facts cannot stand together consistently with the idea that there was any general, or even any considerable misunderstanding of its meaning. CHAPTER XII. THE STATE CONSTITUTIONS OF 1846. Of all the State constitutions existing at this time, 1845, (ex- cepting that of Florida, which I have not seen,) not one of them contains provisions that are sufficient, (or that would be sufficient THE STATE CONSTITITTIONS OF 1845. 127 if not restrained by the constitution of the United States,) to author- ize the slavery that exists in the States. The material deficiency in all of them is, that they neither designate, nor give the legisla- tures 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 imknown. 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 Caro- lina, 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 pro- vision, therefore, amounts to nothing for the purposes of a consti- tutional designation of the persons who may be made slaves. The constitutions of Tennessee and Louisiana make no direct mention of slaves ; and have no provisions in favor of slavery, unless the general one for continuing existing laws in force, be such an one. But both have specific provisions inconsistent with slavery. Both purport to be established by " the people ;" both have provisions for the writ of habeas corpus. Indeed, the con- stitutions 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 Ten- nessee. The constitutions of the States of Kentucky, Missouri, Arkan- sas, 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 128 THE UNCONSTITUTIONALITY OF SLAVERY. constitutional laws,) of other States. But when we go to those other States, we find that their constitutions have made no desig- nation of the persons who may be made slaves j 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 Slate 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 prin- ciples of the federal constitution, to the enjoyment of all the rights, advantages, and immunities of citizejis of the United Slates ; 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 fol- lows : — " Art. 6. The inhabitants of the territories, which his Catholic majesty cedes to the United Slates by this treaty, shall be incor- porated in the Union of the United States, as soo'n as may be consistent with the principles of the federal constitution, and admitted to the enjoyment of all the privileges, rights and immu- nities 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 CHILDREN OF SLAVES ARE BORN FREE. 129 The constitutions of some of the slave States have provisions like this, viz., that all laws previously in force, shall remain in force until repealed, unless repugnant to this constitution. But I think there is no instance, in which the slave acts, then on their statute books, could be perpetuated by this provision — and for two reasons ; 1st. These slave acts were previously unconstitutional, and therefore were not, legally speaking, "laws in force."* 2d. Every constitution, I think, that has this provision, has one or more other provisions that are "repugnant" to the slave acts. CHAPTER XIII. THE CHILDREN OF SLAVES ARE BORN FREE. The idea that the children of slaves are necessarily born slaves, or that they necessarily follow that natural law of property, which gives the natural increase of property to the owner of the original stock, is an erroneous one. It is a principle of natural law in regard to property, that a calf belongs to the owner of the cow that bore it ; fruit to the owner of the tree or vine on which it grew ; and so on. But the princi- ple of natural law, which makes a calf belong to the owner of the cow, does not make the child of a slave belong to the owner of the slave — and why? Simply because both cow and calf are naturally subjects of property ; while neither men nor children are naturally subjects of property. The law of nature gives no aid to anything inconsistent with itself. It therefore gives no aid to the transmission of property in man — while it does give aid to the transmission of property in other animals and in things. Brute animals and things being natiirally 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 * 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 ten-itorial to tt state government. It needs no argument to prove that all our territorial statutes, that have purported to autliorize slavery, were unconstitutional, 130 THE UNCONSTITUTIONALITY OF SLAVERY. 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 owner- ship. 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 ovvti 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 contradic- tion 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 ol 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 arbi- THE CHILDREN OF SLAVES AEE BOEN FREE. 131 trafy 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 con- stitutions, be correct, no parent has ever yet been legally enslaved in this country ; and of course no child. If, however, any one thinks he can place his finger upon any constitutional law, that has enslaved a parent, let him follow that law, and see whether it also expressly authorized the enslavement of the child. If it did not, the child would be free. It is no new principle that the child of a slave would be born free, but for an express law to the contrary. Some of the slave codes admit the principle — for they have special provisions that the child shall follow the condition of the mother ; thus virtually admitting that, but for such a provision, the child would be free, though the mother were a slave. Under the constitutions of the States and the United States, it requires as explicit and plenary constitutional authority, to make slaves of the children of slaves, as it would to make slaves of 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 unconstitutional and void; and those children are free by force of the law of nature. This law of nature, that all men are born free, was recognized by this country in the Declaration of Independence. But it was no new principle then. Justinian says, " Captivity and servitude are both contrary to the law of nature ; for by that law all men are born free." But the principle was not new with Justinian; it exists in the nature of man, and is as old as man — and the race of man generally has acknowledged it. The exceptions have been special ; the rule general. The constitution of the United States recognizes the principle that all men are born free ; for it recognizes the principle that natural birth in the country g^ves citizenship^ — which of course * Art 2, Sec. 1, Clause 5 : " No person, except a natural bom citizen, * ♦ * shall be eligible to the office of President." 132 THE UNCONSTITUTIONALITY OF SLAVERY. 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 Avere 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. THE UNCONSTITUTIONALITY OF SL A YEK Y; PAET SECOND. BY LYSANDER SPOONER. BOSTON: PUBLISHED BY BELA MARSH, NO. 25 CORNHILL. 1847. Entered according to Act of Congress, in the year 1847, by LYSANDER SPOONER, In the Clerk's Office of the District Court of the District of Massachusetts. Stereotyped by GEORGE A. CURTIS; ■NOULND TYPB AMD STBRBOTYPB FOONDRRT. CONTENTS OF PART SECOND. PAOB CHAPTER XIV. — THE DEFINITION OF LAW, - - 137 " XV. — OUGHT JUDGES TO RESIGN THEIR " . SEATS? 147 " XVI. — " THE SUPREME POWER OF A STATE," 153 « XVII. — RULES OF INTERPRETATION, - - 155 First Rule, 157 Second Rule, ..-.-- 161 Third Rule, 165 Fourth Rule, 168 Fifth Rule, 180 Sixth Rule, - 182 Seventh Rule, 189 Eighth Rule, 196 Ninth Rule, 198 Tenth Rule, 199 Eleventh Rule, 200 Twelfth Rtcle, 200 Thirteenth Rule, 201 Fourteenth Rule, 204 RtTLES CITED FOR SLAVERY, - - - - 205 First Rule cited for Slavery, - - - - 205 Second Rule do. do. - ' - - 213 Third Rule do. do. • • - - 217 Fourth Rule do. do. - ■ - - 219 " XVIII. — SERVANTS COUNTED AS UNITS, - . - 237 " XIX. — SLAVE REPRESENTATION, - - - 238 « XX.— ALIENS COUNTED AS THREE FIFTHS, 242 " XXL — WHY THE WORDS "FREE PERSONS" WERE USED, 247 « XXII. — "ALL OTHER PERSONS," . . - 257 « XXIII. — ADDITIONAL ARGUMENTS ON THE WORD "FREE," .... 264 » XXIV. — POWER OF THE GENERAL GOVERN- MENT OVER SLAVERY, - - 269 APPENDIX. SUGOESTIONS TO ABOLITIONISTS, ... 277 THE UNCONSTITUTIONALITY OF SLAVERY. PART SECOND. CHAPTER XIV. THE DEFINITION OF LAW. It has been alleged, by way of objection to the definition of law given in chapter first, that under it the law would be uncer- tain, and government impracticable. Directly the opposite of both these allegations is true. Let us see. 1. Natural law, so far from being uncertain, when compared with statutory and constitutional law, is the only thing that gives any certainty at all to a very large portion of our statutory and constitutional law. The reason is this. The words, in which statutes and constitutions are written, are susceptible of so many different meanings, — meanings widely different from, often di- rectly opposite to, each other, in their bearing upon men's rights, — that, unless there were some rule of interpretation for determin- ing which of these various and opposite meanings are the true ones, there could be no certainty at all as to the meaning of the statutes and constitutions themselves. Judges could make almost anything they should please out of them. Hence the necessity of a rule of interpretation. And this rule is, that the language of statutes and constitutions shall be construed, as nearly as possible, consistently with natural laio. The rule assumes, what is true, that natural law is a thing certain in itself; also that it is capable of being learned. It assumes, furthermore, that it actually is understood by the legisla- tors and judges who make and interpret the written law. Of necessity, therefore, it assumes further, that they (the legislators and judges) are incompetent to make and interpret the writtefi law, unless they previously understand the natural law applicable to the 138 THE UNCONSTITUTIONALITY OF SLAVERY. same subject- It also assumes that the people must understand the natural laW, before they can understand the written law. It is a principle perfectly familiar to lawyers, and one that must be perfectly obvious to every other man that will reflect a moment^ that, as a general rule, no one can know what the written laib is, until he kiwtos lohat it ought to he', that men are liable to be 'constantly misled by the various and conflicting senses of the same words, unless they perceive the true legal sense in which the words ought to he taken. And this true legal sense is the sense that is most nearly consistent with natural law of any that the words can be made to bear, consistently with the laws of lan- guage, and appropriately to the subjects to which they are applied. Though the words contain the law, the tvords themselves are not the law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and different combinations of senses, in which each and all the words ".were capable of being taken. Take, for example, the Constitution of the United States. By adopting one or another sense of the single word "/rce," the whole instrument is changed. Yet, the word free is capable of some ten or twenty different senses. So that, by changing the sense of that single word, some ten or twenty different constitu- tions could be made out of the same written instrument. But there are, we will suppose, a thousand other words in the consti- tution, each of which is capable of from two to ten different senses. So that, by changing the sense of only a single word at a time, several thousands of different constitutions would be made. But this is not all. Variations could also be made by changing the senses of two or more words at a time, and these variations could be run through all the changes and combinations of senses that these thousand words are capable of. We see, then, that it is no more than a literal truth, that out of that single instrument, as it now stands, without altering the location of a single word, might .be formed, by construction and interpretation, more different con- stitutions than figures can well estimate. But each written law, in order to be a law, must be taken only in some one definite and distinct sense ; and that definite and dis- tinct sense must be selected from the almost infinite variety of senses which its words are capable of. How is this selection to THE DEFINITION OF LAW. 139 be made ? It can be only by the aid of that perception of natural law, or natural justice, which men naturally possess. Such, then, is the comparative certainty of the natural and the written law. Nearly all the certainty there is in the latter, so far as it relates to principles, is based upon, and derived from, the still greater certainty of the former. In fact, nearly all the uncer- tainty of the laws under which we live,'— which are a mixture of natural and written laws, — arises from the difficulty of construing, or, rather, from the facility of misconstruing, the written law. While natural law has nearly or quite the same certainty as mathematics. On this point. Sir William Jones, one of the most learned judges that have ever lived, learned in Asiatic as well as European law, says, — and the fact should be kept forever in mind, as one of the most important of all truths : — " It is pleasing to remark the similarity, or, rather, the identity of those conclu- sions which pure, unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive instilutioTis."^ In short, the simple fact that the written law must be interpreted by the natural, is, of itself, a sufficient confession of the superior certainty of the latter. The written law, then, even where it can be construed con- sistently with the natural, introduces labor and obscurity, instead of shutting them out. And this must always be the case, because words do not create ideas, but only recall them ; and the same word may recall many different ideas. For this reason, nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another. This is owing to the imperfection of language", and the different senses, meanings, and shades of meaning, which different individuals attach to the same words, in the same circumstances.! Where the written law cannot be construed consistently with the natural, there is no reason why it should ever be enacted at all. It may, indeed, be sufficiently plain and certain to be easily understood ; but its certainty and plainness are but a poor compen- * Jones on Bailments, 133. + Kent, describing the difficulty of construing the written law, says : — " Such is the imperfection of language, and the want of technical skill in the makers of the law, that statutes often give occasion to the ipost perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms, as to secure it from ambiguous ezpressioos, and from all doubts and criticisms upon its meaning." — Kenti 469? 140 THE UNCONSTITUTIONALITY OF SLAVERY. sation for its injustice. Doubtless a law forbidding men to drink water, on pain of death, might be made so intelligible as to cut off all discussion as to its meaning ; but would the intelligibleness of such a law be any equivalent for the right to drink water ? The principle is the same in regard to all unjust laws. Few persons could reasonably feel compensated for the arbitrary destruction of their rights, by having the order for their destruction made known beforehand, in terms so distinct and unequivocal as to admit of neither mistake nor evasion. Yet this is all the compensation that such laws offer. Whether, therefore, written laws correspond with, or differ from, the natural, they are to be condemned* In the first case, they are useless repetitions, introducing labor and obscurity. In the latter case, they are positive violations of men's rights. There would be substantially the same reason in enacting mathematics by statute, that there is in enacting natural law. Whenever the natural law is sufficiently certain to all men's minds to justify its being enacted, it is sufficiently certain to need no enactment. On the other hand, until it be thus certain, there is danger of doing injustice by enacting it ; it should, therefore, be left open to be discussed by anybody who may be disposed to question it, and to be judged of by the proper tribunal, the judici- ary.^ It is not necessary that legislators should enact natural law in order that it may be known to the people, because that would be presuming that the legislators already understand it better than the people, — a fact of which 1 am not aware that they have ever here- tofore given any very satisfactory evidence. The same sources of knowledge on the subject, are open to the people, that are open to the legislators, and the people must be presumed to know it as well as they.t * This condemnation of written laws must, of course, be understood as applying only to cases where principles and rights are involved, and not as condemning any governmental arrangements, or instrumentalities, that are consistent with natural right, and which must he agreed upon for the purpose of carrying natural law into effect. These things may be varied, as expediency may dictate, so only that they be allowed to infringe no principle of justice. And they must, of course, be writ- ten, because they do not exist as fixed principles, or laws in nature. t The objections made to natural law, on the ground of obscurity, are wholly unfounded. It is true, it must be learned, like any other science, but it is equally true, that it is very easily learned. Although as illimitable in its applications as the iafinile relations of men to each other, it is, nevertheless, made up of simple elemeuiary. principles, of the truth and justice of which every ordinary mind has THE DEFINITION OF LAW. 141 2. But it is said further, that government is not practicable under this theory of natural law. If by this is meant only that govern- ment cannot have the same arbitrary and undisputed supremacy over men's rights, as under other systems — the same absolute an almost intuitive perception. It is the science of justice, — and almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn. Men living in contact with each other, and having intercourse together, cannot avoid learning natural law, to a very great extent, even if they would. The deal- ings of men with men, their separate possessions, and their individual wants, are cpntinually forcing upon their minds the questions, — Is this act just? or is it un- just? Is this thing mine? or is it his ? And these are questions of natural law ; questions, which, in regard to the great mass of cases, are answered alike by the human mind everywhere. Children learn many principles of natural law at a very early age. For example : they learn that when one child has picked up an apple or a flower, it is his, and that his associates must not take it from him against his will. They also learn that if he voluntarily exchange his apple or flower with a playmate, for some other article of desire, he has thereby surrendered his right to it, and must not reclaim it. These are fundamental principles of natural law, which govern most of the greatest interests of individuals and society ; yet, children learn them earlier than they learn that three and three are six, or five and five, ten. Talk of enacting natural law by statute, that it may be known! It would hardly be extravagant to say, that, in nine cases in ten, men learn it before they have learned the language by which we describe it. Nevertheless, numerous treatises are written on it, as oui other sciences. The decisions of courts, containing their opinions upon the almost endless variety of cases that have come before them, are reported ; and these reports are condensed, codified, and digested, so as to give, in a small compass, the facts, and the opinions of the courts as to the law resulting from them. And these treatises, codes, and digests are open to be read of all men. And a man has the same excuse for being ignorant of arithmetic, or any other science, that he has for being ignorant of natural law. He can learn it as well, if he will, without its being enacted, as he could if it were. If our governments would but themselves adhere to natural law, there would be little occasion to complain of the ignorance of the people in regard to it. The pop- ular ignorance of law is attributable mainly to the innovations that have been made upon natural law by legislation ; whereby our system has become an incon- gruous mixture of natural and statute law, with no uniform principle pervading it. To learn such a system, — if system it can be called, and if learned it can be,— is a matter of very similar difliculty to what it would be to learn a system of mathemat- ics, which should consist of the mathematics ©f nature, interspersed with such other mathematics as might be created by legislation, in violation of all the natural principles of numbers and quantities. But whether the difliculties of learning natural law be greater or less than here* represented, they exist in the nature of things, and cannot be removed. Legislation, instead of removing, only increases them. This it does by innovating upon natural truths and principles, and introducing jargon and contradiction, in the place of order, analogy, consistency, and uniformity. Further than this ; legislation does not even profess to remove the obscurity of natural law. That is no part of its object. It only professes to substitute some- 143 THE UNCONSTITUTIONALITY OF SLAVERY. authority to do injustice, or to maintain justice, at its pleasure — the allegation is of course true ; and it is precisely that, that con- stitutes the merits of the system. But if anything more than that is meant, it is untrue. The theory presents no obstacle to the use of all J2ist means for the maintenance of justice; and this is all the power that government ought ever to have. It is all the power that it can have, consistently with the rights of those on whom it is to operate. To say that such a government is not practicable, is equivalent to saying that no governments are prac- ticable but arbitrary ones ; none but those that are licensed to do injustice, as well as to maintain justice. If these latter govern- ments only are practicable, it is time that all men knew it, in order that those who are to be made victims may stand on their defence, instead of being cheated into submission by the falsehood that government is their protector, and is licensed to do, and intends to do, nothing but justice to any. If we say it is impracticable to limit the constitutional power of government to the maintenance of natural law, we must, to be consistent, have done with all attempts to limit government at all by written constitutions ; for it is obviously as easy, by written constitutions, to limit the powers of government to the maintenance of natural law, as to give them any other limit whatever. And if they were thus limited expressly, it would then, for the reasons before given, be as easy, and even altogether more easy, for the judiciary to determine what legislation was constitutional, and what not, than it is under a constitution that should attempt to define the powers of government arbitrarily. thing arbitrary in the place of natural law. Legislators generally have the sense to see that legislation will not make natural law any clearer than it is. Neither is it the object of legislation to estal>lish the authority of natural law. Legislators have the sense to see that they can add nothing to the authority of natural law, and that it will stand on its own authority, unless they overturn it. The whole ohjcct of legislation, excepting that legislation which merely makes regulations, and provides instrumentalities for carrying other laws into effect, is to overturn natural law, and substitute for it the arbitrary will of power. In other words, the whole object of it is to destroy men's rights. At least, such is its only eQect ; and its design must be inferred from its effect. Taking all the statutes in the country, there probably is not one in a hundred, — except the auxiliary ones just mentioned, — that does not violate natural law ; that does not invade some right or other. Yet, the advocates of arbitrary legislation are continually practising the fraud of pretending, that unless the legislature Tnake the laws, the laws will not be known. The whole object of the fraud is to secure to the government the authority of making laws that never ought to be known. tHK DEFINITION OF LAW. 143 On what ground it can seriously be said that such a government is impracticable, it is difficult to conceive. Protecting the rights of all, it would naturally secure the cordial support of all, instead of a part only. The expense of maintaining it would be far less than that of maintaining a different one. And it would certainly be much more practicable to live under it, than under any other. Indeed, this is the only government which it is practicable to estab- lish by the consent of all the governed ; for an unjust government must have victims, and the victims cannot be supposed to give their consent. All governments, therefore, that profess to be founded on the consent of the governed, and yet have authority to violate natural laws, are necessarily frauds. It is not a supposable case, that all, or even any very large part, of the governed, can have agreed to them. Justice is evidently the only principle that every- body can be presumed to agree to, in the formation of government. It is true that those appointed to administer a government founded on natural law, might, through ignorance or corruption, depart from the true theory of the government in particular cases, as they do under any other system ; and these departures from the system would be departures from justice. But departures from justice would occur only through the errors of the men ; such errors as systems cannot wholly prevent ; they would never, as under other systems, be authorized by the constitution. And even errors arising from ignorance and corruption would be much less frequent than under other systems, because the powers of govern- ment would be much more definite and intelligible ; they could not, as under other systems, be stretched and strained by construc- tion, so as to afford a pretext for anything and everything that corruption might desire to accomplish. It is probable that, on an average, three fourths, and not un- likely nine tenths, of all the law questions that are decided in the progress of every trial in our courts, are decided on natural prin- ciples ; such questions, for instance, as those of evidence, crime, the obligation of contracts, the burden of proof, the rights of property, &c., &c.* If government be practicable, as we thus see it to be, where three fourths or nine tenths of the law administered * Kent says, and truly, that " A great proportion of the rules and maxima, which constitute the immense code of the common law. grew into use by gradual adoption, and received the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and cultivated reason to particular cases." 1 Kent, 470. 144 THE UNCONSTITUTIONALITY OF SLAVERY. is natural, it would be equally practicable where the whole was so. So far -from government being impracticable on principles of natural law, it is wholly impracticable to have a government of law, applicable to all cases, unless the great body of the law ad- ministered be natural ; because it is impossible for legislation to anticipate but a small portion of the cases that must arise in regard to men's rights, so as to enact a law for them. In all the cases which the legislature cannot anticipate and provide for, natural law must prevail, or there can be no law for them, and, consequently, — so far as those cases are concerned — no government. Whether, therefore, we regard the certainty of the law, or the practicability of a government applicable to all cases, the preference is incomparably in favor of natural law. But suppose it were not so. Suppose, for the sake of the argu- ment, that the meaning of the arbitrary commands of power were, in the majority of cases, more easily ascertained than the principles of natural justice ; is that any proof that the former are law, and the latter not ? Does the comparative intelligibility of the two determine which is to be adopted as the true definition of law ? It is very often easier to understand a lie than to ascertain a truth ; but is that any proof that falsehood is synonymous with fact ? or is it any reason why falsehood should be held to be fact? As much reason would there be in saying this, as there is in saying that the will of the supreme power of the state is law, or should be held to be law, rather than natural justice, because it is easier to understand the former than to ascertain the latter. Or suppose, further, that government were iinpracticable, under such a definition of law as makes law synonymous with natural justice ; would that be any argument against the definition? or only against government ? The objection to the practicability of government under such a definition of law, assumes, 1st, that government must be sustained, whether it administer justice or injustice ; and, 2d, that its com- mands must be called law, whether they really are law or not. Whereas, if justice be not law, it may certainly be questioned whether government ought to be sustained. And to this question all reasonable men must answer, that we receive such an abundance of injustice from private persons, as to make it inexpedient to maintain a government for the sole purpose of increasing the sup- ply. But even if unjust government must be sustained, the ques' THE DEFINITION OF LAW. 146 tlon will Still remain, whether its commands ought to be called law ? If they are not law, they should be called by their right, name, whatever it may be. In short, the definition of law involves a question of truth or falsehood. Natural justice either is law, or it is not. If it be law, it is always law, and nothing inconsistent with it cain ever be made law. If it be not law, then we have no law except what is pre- scribed by the reigning power of the state ; and all idea of justice being any part of our system of law, any further than it may be specially prescribed, ought to be abandoned ; and government ought to acknowledge that its authority rests solely on its power to compel submission, and that there is not necessarily any moral obligation of obedience to its mandates. If natural justice be 7iot law, then all the decisions that are made by our courts on natural principles, without being prescribed by statute or constitution, are unauthorized, and not law. And the decisions of this kind, as has already been supposed, comprise probably three fourths, or more likely nine tenths, of all the deci- sions given by our courts as law.^ If natural justice be law, then all statutes and constitutions inconsistent with it are no law, and courts are bound to say so. Courts must adopt some definition of law, and adhere to it. They cannot make it mean the two opposite principles of justice and injustice at once. White cannot be made white and black at the same time, by the assertions of all the courts on the globe. Neither- can law be made two opposite things at once. It must be either one thing or the other. No one doubts that there is such a principle as natural law ; and natural law is natural justice. If natural justice be law, natural, injustice cannot be made law, either by " the supreme power of the * That is, these decisions are unauthorized, on the supposition that justice is not necessarily law, unless the general requirement, made upon courts by some' of our constitutions, that they "administer right and justice," or some other re- quirement contained in them equivalent to that, be considered as arbitrarily pre- scribing these principles as law, and thus authorizing the decisions. But if these requirements, instead of being regarded, as they doubtless ought to be, as an ac- knowledgment that " right and justice " are law of themselves, be considered only as arbitrarily prescribing them as law, it is at least an admission that the simple words " right and justice " express, with legal accuracy, an infinite variety of fixed, definite, and certain principles, that are properly applicable, as law, to the relations of man with man. But wherever a constitution makes no such requirement, th« decisions are illegal, as being made without authority, unless justice itself be law. 13 146 THE UNCONSTITXJTIONALITY OF SLAVERY. State," or by any other power ; and it is a fraud to call it by that name. " The supreme powers of states," whether composed of majori- ties or minorities, have alike assumed to dignify their unjust com- mands with the name of law, simply for the purpose of cheating the ignorant into submission, by impressing them with the idea that obedience was a duty. The received definition of law, viz., that it is " a rule of civil conduct prescribed by the supreme power of a state," had its origin in days of ignorance and despotism, when government was founded in force, without any acknowledgment of the natural rights of men. Yet even in those days the principle of justice competed, as now, with the principle of power, in giving the definition of law ; for justice was conceded to be the law in all, or very nearly all, the cases where the will of the supreme power had not been explicitly made known ; and those cases comprised, as now, a very large portion of all the cases adjudicated. What a shame and reproach, nay, what an unparalleled crime is it, that at this day, and in this country, where men's natural rights are universally acknowledged, and universally acknowledged to be inalienable, and where government is acknowledged to have 110 just powers except what it derives from the consent of the gov- erned, (who can never be supposed to consent to any invasion of their rights, and who can be supposed to establish government only for their protection,) a definition of law should be adhered to, that denies all these self-evident and glorious truths, blots out all men's natural rights, founds government on force, buries all present knowledge under the ignorance and tyranny of the past, and commits the liberties of mankind to the custody of unrestrained power ! The enactment and enforcement of unjust laws are the greatest crimes that are committed by man against man. The crimes of single individuals invade the rights of single individuals. Unjust laws invade the rights of large bodies of men, often of a majority of the whole community ; and generally of that portion of com- munity who, from ignorance and poverty, are least able to bear the wrong, and at the same time least capable of resistance.* * We add the following authorities to those given in the note to chapter first, on the true nature and definition of law : — Cicero says, " There is a true law, a right reason, conformable to nature, universal, unchangeable, eternal. * * * * This law canoot be coutradicted by any other law, and is not liable either to derogation- OUGHT JUDGES TO RESIGN THEIR SEATS ? 147 CHAPTER XV. OUGHT JUDGES TO RESIGN THEIR SEATS? It being admitted that a judge can rightfully administer injustice as law, in no case, and on no pretence whatever ; that he has no right to assume an oath to do so ; and that all oaths of that kind or abrogation. Neither the senate nor the people can give us any dispensation for iiotobeyinglhis universal law of justice. * * * * It is not one thing at Rome, and another at Athens ; one thing to-day, and another to-morrow ; but in all times and nations, this nniversal law must forever reign, eternal and imperishable. * * * * He who obeys it not, flies from himself, and does violence to the very nature of man." — Clccro^s Republic, Barhain's Translation, B. 3, p. 270. "This justice is the very foundation of lawful government iu political constitu- tions." —S'ame, R 3, p. 272. " To secure to the citizens the benefits of an honest and happy life, is the grand object of all political associations." — Saine, B. 4, p. 283. " There is no employment so essentially royal as the exposition of equity, which comprises the true meaning of all laws." — Same, B. 5, p. 290. "According to the Greeks, the name of law implies an equitable distribution of goods ; according to the Romans, an equitable discrimination between good and evil. The true definition of law should, however, include both these character- istics. And this being granted as an almost self-evident proposition, the origin of justice is to be sought in the divine law of eternal and immutable morality." — dcero's Treatise on the Laws, Barham's Translation, B. I, p. 37. " Of all the questions which our philosophers argue, there is none which it is more important thoroughly to understand than this, — that man is born Jhr justice, and that law and equity are not a mere establishment of opinion, but an institution of nature." — Same, B. I, p. 45. " Nature hath not merely given us reason, but right reason, and, consequently, that law, which is nothing else than right reason, enjoining what is good, and for- bidding what is evil. " Now, if nature hath given us law, she hath also given us justice ; for, as she has bestowed reason on all, she has equally bestowed the sense of justice on all." — Same, B. I, p. 43. " Nature herself is the foundation of justice." — Same, B. I, p. 49. " It is an absurd extravagance, in some philosophers, to assert that all things arc necessarily just, which are established by tlie civil laws and the institutions of the people. Are, then, the laws of tyrants just, simply because they are laws ? If the thirty tyrants of Athens imposed certain laws on the Athenians, and if these Atheni- ans were delighted with these tyrannical lav/s, are we, therefore, bound to consider these laws as just? For my own part, I do not think such laws deserve any greater estimation than that passed during our own interregnum, which ordained that the dictator should be empowered tmy, and who may not, be held as slaves, a?id as we cannot go out of the vastrument to settle any ambiguity in favor of injustice, the provision must remain inoperative for its uncertainty ; and a\\- persons must be presumed free, simply because the constitution itself has not told us who may be slaves. Apply the rule further to the words " importation of persons," 196 RULES OF INTERPRETATION. and " service and labor," and those words wholly fail to recognize slavery. Apply the rule only to the word " free," and slavery is uncon- stitutional ; for the words " importation of persons," and " service and labor," can have no claims to be considered recognitions or sanctions of slavery, unless such a signification be first given to the word " free." EIGHTH RULE. An eighth rule of interpretation is, that where the prevailing principles and provisions of a law are favorable to justice, and general in their nature and terms, no unnecessary exception to them, or to their operation, is to be allowed. It is a dictate of law, as of common sense — or rather of law, because of common sense — that an exception to a rule cannot be established, unless it be stated with at least as much distinctness and certainty as the rule itself, to which it is an exception ; because otherwise the authority of the rule will be more clear and certain, and consequently more imperative, than that of the exception, and will therefore outweigh and overbear it. This principle may justly be considered a strictly mathematical one. It is founded simply on the necessary preponderance of a greater quantity over a less. On this principle, an exception to a general laiv cannot be established, unless it be expressed with at least as much dis- tinctness as the law itself. In conformity with this principle, it is the ordinary practice, in the enactment of laws, to state the exceptions with the greatest distinctness. They are usually stated in a separate sentence from the rest of the law, and in the form of a proviso, or exception, commencing with the words " Provided, nevertheless," " Excepting, however," or words of that kind. And the language of the proviso is generally even more emphatic than that of the law, as it, in reality, ought to be, to preponderate against it. This practice of stating exceptions has been further justified, and apparently induced, by that knowledge of human nature which forbids us to understand a man as contradicting, in one sentence what he has said in another, unless his language be incapable of any other meaning. For the same reason, a law, (which is but the expression of men's intentions,) should not be held to contradict, in one sentence, what it has said in another, except the terms be perfectly clear and positive. EIGHTH RULE. * 197 The practice of stating exceptions in this formal and emphatic manner, shows also that legislators have usually, perhaps uncon- sciously, recognized, and virtually admitted, the soundness of the rule of interpretation, that requires an exception to "be stated with at least as much clearness as the law to which it is an ex- ception. This practice of stating exceptions in a clear and formal manner, is common even where no violation of justice is involved in the exception ; and where an exception therefore involves less viola- tion of reason and probability. This rule of interpretation, in regard to exceptions, corresponds with what is common and habitual, if not universal, in common life, and in ordinary conversation. If, for instance, a man make an exception to a general remark, he is naturally careful to express the exception with peculiar distinctness ; thus tacitly recognizing the right of the other party not to notice the exception, and the probability that he will not notice it, unless it be stated with per- fect distinctness. Finally. Although an exception is not, in law, a contradiction, it nevertheless partakes so strongly of the nature of a contradiction — especially where there is no legitimate or rightful reason for it — that it is plainly absurd to admit such an exception, except upon substantially the same terms that we admit a contradiction, viz., irresistible clearness of expression. The question now is, whether there is, in the constitution, any compliance with these principles, in making exceptions in favor of slavery ? Manifestly there is none. There is not even an ap- proach to such a compliance. There are no words of exception ; no words of proviso ; no words necessarily implying the existence or sanction of anything in conflict with the general principles of the instrument. Yet the argument for slavery, (I mean that founded on the representative clause,) makes two exceptions — not one merely, but two — and both of the most flagitious and odious character — without the constitution's having used any words of proviso or exception ; without its having devoted any separate sentence to the exception ; and without its having used any words which, even if used in a separate sentence, and also preceded by a " Provided, nevertheless" would have necessarily implied any such exceptions as are claimed. The exceptions are claimed as having been established merely incidentally and casually, in describing the 17* Wo RULES OF INTERPRETATION. manner of counti7ig the people for purposes of representation and taxation; when, what is worse, the words used, if not the most common and proper that could have been used, are certainly both common' and proper for describing the people, where no excep- tion to " the general system of the laws" established by the con- stitution is intended. It is by this process, and this alone, that the argument for slavery makes two exceptions to the constitution ; and both, as has already been said, of the most flagitious and odious character. One of these exceptions is an exception of priiiciple, substituting injustice and slavery, for " justice and liberty." The other is an exception of persons ; excepting a part of " the people of the United States " from the rights and benefits, which the instrument professes to secure to the whole ; and exposing them to wrongs, from which the people generally are exempt. An exception of principle would be less odious, if the injustice were of a kind that bore equally on all, or applied equally to all. But these two exceptions involve not only injustice in principle, but partiality in its operation. This double exception is doubly odious, and doubly inadmissible. Another insuperable objection to the allowance of these excep- tions, is, that they are indeji7iite — especially the latter one. The persons who may be made slaves are not designated. The per- sons allowed to be made slaves being left in uncertainty, the exception nmst fail for uncertainty, if for no other reason. We cannot, for the reasons given under the preceding rule, go out of the instrument to find the persons, because it is better that the exception should fail for its uncertainty, than that resort should be had to exterior evidence for the purpose of subjecting men to slavery. NINTH RULE. A ninth rule of interpretation is, to be guided, in doubtful cases, by the preamble. The authority of the preamble, as a guide to the meaning of an instrument, where the language is ambiguous, is established. In fact, the whole object of the preamble is to indicate the objects had in view in the enacting clauses ; and of necessity those objects will indicate the construction to be given to the words used in those clauses. Any other supposition would either make the preamble worthless, or, worse than that, deceitful. TENTH RULE. 199 If we are guided by the preamble in fixing the meaning of those clauses that have been claimed for slavery, it is plain that no sanc- tion or recognition of slavery will be found in them ; for the pre- amble declares' the objects of the constitution to be, among other things, "justice" and " liberty." * TENTH KULE. A tenth rule of interpretation is, that one part of an instrument must not be allowed to contradict another, unless the language be so explicit as to make the contradiction inevitable. * Story says, "The importance of examining the preamble, for the purpose of expounding; the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs which are to be remedied, and the objects which are to be accomplished by the provisions of the statute. We find it laid down in some of our earliest authorities in the common law, and civilians are accustomed to a similar expression, cessante legis prosmio, cessat el ipsa lex. (The preamble of the law ceasing, the law itself also ceases.) Probably it has a foundation in the exposition of every code of written law, from the universal principle of interpreta- tion, that the will and intention of the legislature is to be regarded and followed. It is properly resorted to where doubts or ambiguities arise »ipon the words of the enacting part ; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an absurdity, or to a direct overthrow of the intention expressed in the preamble. "There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as expressed in the preamble. And accordingly we find that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions." — 1 Slorifs Comm. on Const., p. 443-4. Story also says, " Its true office is to expound the nature, and extent, and applica- tion of the powers actually conferred by the constitution, and not substantively to create them." — Same, 445. " Though the preamble cannot control the enacting part of a statute which is expressed in clear and unambiguous terms, yet, if any doubt arise on the words of the enacting part, the preamble maybe resorted to, to explain it." — 7 Bacon's Abr.y4.Z5, note, i Term Rep. ,793. 13 Vesey, 36. \ 5 Johiison, N. Y. Rep., 116. "A statute made pro bono publico (for the public good) shall be construed in such manner that it may as far as possible attain the end proposed." — 7 Bacon's Abr., 461. The constitution of the United States avows itself to be established for the public good — that is, for the good of "the people of the United States" — to establish justice and secure the blessings of liberty to themselves and their posterity. It must of course " be construed in such manner that it may, as far as possible, attain that end." Story says, " Was it not framed for the good of the people, and by the people?" — 1 Story's Comm., 394. Chief Justice Jay dwells at length upon the authority of the preamble, as a guide for the interpretation of the constitution. — 2 Dallas, 419. Also Justice Story, in his Commentaries on the Constitution, vol. l, book 3, cA. 6. r 200 RULES OF INTERPRETATION. Now the constitution would be full of contradictions, if it toler- ated slavery, unless it be shown that the constitution itself has established an exception to all its general provisions, limiting their operation and benefits to persons not slaves. Such an exception or limitation would yiot, legally speaking, be a contradiction. But I take it for granted that it has already been shown that no such exception can be made out from its words. If no such exception be made out from its words, such a construction must, if possible, be given to each clause of the instrument, as will not amount to a contradiction of any other clause. There is no difficulty in mak- ing such a construction ; but when made it will exclude slavery. ELEVENTH RULE. An eleventh rule is one laid down by the supreme court of the United States, as follows : "An act of congress" (and the rule is equally applicable to the constitution) " ought never to be construed to violate the law of nations, if any o\hQX possible construction remains."* This rule is specially applicable to the clause relative to "the importation of persons." If that clause were construed to sanction the kidnapping of the people of foreign nations, and their importa- tion into this country as slaves, it would be a flagrant violation of that law. TWELFTH RULE. A twelfth rule, universally applicable to questions both of fact and lata, and sufficient, of itself alone, to decide, against slavery, every possible question that can be raised as to the meaning of the constitution, is this, " that all reasonable doubts must be decided in favor of liberty.'''' t All the foregoing rules, it will be observed, are little other than varied and partial expressions of the rule so accurately, tersely, comprehensively, and forcibly expressed by the supreme court of the United States, viz.: *2 Cranch, 64. t The Supreme Court of Mississippi say, referring to the claim of freedom, set up before it, " Is it not an unquestioned rule that, in matters of doubt, courts must lean in favorcm. vilee et libcrtalis? " (in favor of life and liberty.) — Harvey vs. Decker, Walker^s iMinsissippi Reports, 36. I cite this authority from Mr. Chase's argument in the Van Zandt case. THIRTEENTH RULE. 201 " Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clear- 7iess, to induce a court of justice to suppose a design to effect such objects." THIRTEENTH RULE. A thirteenth rule, and one of great importance, is, thai instru- inenls must be so construed as to give no shelter or effect to fraud. This rule is especially applicable for deciding what meaning we are to give to the word free in the constitution ; for if a sense cor- relative with slavery be given to that word, it will be clearly the result of fraud. We have abundant evidence that this fraud was intended by some of the /ra??2e7-.? of the constitution. They knew that an instrument legalizing slavery could not gain the assent of the north. They therefore agreed upon an instrument honest in its terms, with the intent of misinterpreting it after it should be adopted. The fraud of the framers, however, does not, of itself, implicate the people. But when any portion of the people adopt this fraud in practice, they become implicated in it, equally with its authors. And any one who claims that an ambiguous word shall bear a sense inappropriate to the subject matter of the instrument, contrary to the technical and common meaning of the word, inconsistent with any intentions that all the parties could reasonably be presumed to agree to, inconsistent with natural right, inconsistent with the pre- amble, and the declared purpose of the instrument, inconsistent with "the general system of the laws" established by the instru- ment ; any one who claims such an interpretation, becomes a partic- ipator in the fraud. It is as much fraudulent, in law, for the people of the present day to claim such a construction of the word free, as it was for those who lived at the time the instrument was adopted. Vattel has laid down two very correct principles to be observed as preventives of fraud. They are these: 1. That it is not permitted to interpret what has no need of interpretation. 2. That if a party have not spoken plainly, when he ought to have done so, that which he has sufficiently declared, shall be taken for true against him. Vattel's remarks in support of, and in connection with, these principles, are so forcible and appropriate that they will be given 202 RULES OF INTERPRETATION. somewhat at length. If he had had in his mind this very fraud which the slaveholders and their accomplices intended to perpe- trate by means of the word free in the constitution, he could hardly have said anything belter fitting the case. He says, " That fraud seeks to take advantage even of the imperfection of language; that men designedly throw obscurity and ambiguity into their treaties, to obtain a pretence for eluding them upon occasion. It is then necessary to establish rules founded on reason, and authorized by the law of nature, capable of frustrating the attempts of a contracting power void of good faith. Let us begin with those that tend particularly to this end ; with those maxims of justice and equity destined to repress fraud and prevent the effect of its artifices. " The first general maxim of interpretation is, that it is iiot per- mitted to interpret uihat has no need, of interpretation.^ When an act is conceived in clear and precise terms, when the sense is manifest and leads to nothing absurd, there can be no reason to refuse the sense which this treaty naturally presents. To go else- where i)i search of conjectures in order to restrain or extinguish it, is to endeavor to elude it. If this dangerous method be once admitted, there will be no act which it will not render useless. Let the brightest light shine on all the parts of the piece, let it be expressed in terms the most clear and determinate ; all this shall be of no use, if it be allowed to search for foreign reasons in order to maintain what cannot be found in the sense it naturally presents. " The cavillers who dispute the sense of a clear and determinate article, are accustomed to draw their vain subterfuges from the pretended intention and views of the author of that article. It would often be very dangerous to enter with them into the discus- sion of these supposed views, that are not pointed out in the piece itself. This rule is more proper to repel them, and which cuts off all chicanery ; if he who can and ought to have explained himself clearly and plai?ily, has not done it, it is the worse for him ; he cannot be allowed to introduce subsequent restrictions which he has ♦This rule is fairly applicable to the vioxA free. The sense correlative with aliens is a sense appropriate to the subject matter of the instrument ; it accurately and properly describes a class of persons, which the constitution presumes would exist under it ; it was, at the time, the received and technical sense of the word in all instruments of a similar character, and therefore its presumptive sense in the constitution ; it is consistent with intentions reasonably attrilmiable to all the par- ties lo the constitution ; it is consistent with natural right, with the preamble, the declared purpose of the constitution, and with the general system of the laws estahlished by the constitution. Its le/j-al meaning, in the constitution, was there- fore plain, manifest, palpable, and, at the time of its adoption, had no need of inter- pretation. It needs interpretation noir, only to expose the fraudulent interpretation of the past ; and because, in pursuance of that fraudulent interpretation, usage has now somewhat changed the received meaning of the word. THIRTEENTH RULE, 203 not expressed. This is the maxim of the Roman law; Pactionem ohscuram Us nocere, in quorum fuit potestate legevi apertius con- scribere. (The harm of an obscure compact shall fall upon those in whose power it was to write the rule plainly.) The equity of this rule is extremely visible, and its necessity is not less evident. There can be no secure conventions, no firm and solid concession, if these may be rendered vain by subsequent limitations that ought to have been mentioned in the piece, if they were included in the intentions of the contractiner powers." — Vattel, b. 2, ch. 17. sees. 262, 263, 264. " On every occasion when a person has, and ought to have shown Ids intention, we take for true agaiiist him ivhat he has sufficient- ly declared. This is an incontestible principle applied to treaties; for if they are not a vain play of words, the contracting parties ought to express themselves with truth, and according to their real intentions. If the intention sufficiently declared, was not taken for the true intention of him v/ho speaks and binds himself, it would be of no use to contract and form treaties." — Same, sec. 266. " Is it necessary, in an enlightened age, to say that mental res- ervations cannot be admitted in treaties? This is manifest, since by nature even of the treaty, the parties ought to declare the man- ner in which they would be reciprocally understood. There is scarcely a person at present, who would not be ashamed of build- ing upon a mental reservation. What can be the use of such an artifice, if it was not to lull to sleep some other person under the vain appearance of a contract ? It is, then, a real piece of knavery." — Same, sec. 275. " There is not perhaps any language that has not also words which signify two or many different things, or phrases susceptible of more than one sense. Thence arise mistakes in discourse. The contracting poioers ought carefully to avoid them. To employ them with design, in order to elude engagements, is a real perfidy, since the faith of treaties obliges the contracting par- ties to express their intentions clearly. But if the equivocal term has found admission into a public treaty, the interpretation is to make the uncertainty produced by it disappear. " This is the rule that ought to direct the interpretation in this case. We ought always to give to expressions the sense most stat- able to the subject, or to the matter to which they relate. For we endeavor by a true interpretation, to discover the thoughts of those who speak, or of the contracting powers in a treaty. Now it ought to be presumed that he who has employed a word capable of many different significations, has taken it in that which agrees with the subject. In proportion as he employs himself on the matter in question, the terms proper to express his thoughts pre- sent themselves to his mind ; this equivocal word could then only offer itself in the sense proper to express the thought of him who makes use of it, that is, in the sense agreeable to the subject. It 204 RULES OF INTERPRETATION. would he to no pvrpose to object, that we sometimes have recourse to equivocal expressiojis, with a view of exhibiting something very different from what one has truly in the mind, and that then the se7ise vjhich agrees ivith the subject is not that which answers to the intetition of the mail who speaks. We have already observed, that ivhenever a man can and oxLght to have made known his intention, toe max) take for true against him what he has sufficiently declared. And as good faith ought to preside in conventions, they are always interpreted on the supposition that it actually did preside in them." — Same, sec, 279, 80. '• The reason of the law, or the treaty, that is, the motive which led to the making of it, and the view there proposed, is one of the most certain means of establishing the true sense, and great atten- tion ought to be paid to it wdienever it is required to explain an obscure, equivocal and undetermined point, either of a law, or of a treaty, or to make an application of them to a particular case. ^45 soon as loe certainly knoio the reason ivhich alone has determined the toill of him who speaks, ive ought to interpret his words, and to apply them in a manner sxdtable to that reason alone. Other- wise he will be made to speak and act contrary to his intention, and in a manner opposite to his views. But we ought to be very certain that we know the true and only reason of the law, the promise, or the treaty. It is not here per- mitted to deliver ourselves up to vague and uncertain conjectures, and to suppose reason and views where there are none certainly known. If the piece in question is obscure in itself; if in order to know the sense, there are no other means left but to search for the reason of the act, and the views of the author ; we must then have recourse to conjecture, and in the want of certainty, receive for true, what is most probable. But it is a dangerous abuse to go, without necessity, in search of reasons and uncertain views, in order to turn, restrain, or destroy, the sense of a piece that is clear enough in itself, and that presents nothing absurd ; this is to offend against this incontestible maxim, that it is not permitted to inter- pret what has no need of interpretation. Miich less is it permitted, when the author of a piece has himself there made known his rea- sons and motives, to attribute to him some secret reason, as the foun- dation to interpret the piece contrary to the natural sense of the terms. Though he had really the view attributed to him, if he has concealed it, and made known others, the interpretation can 07ily be founded upon these, and not upon the vienis which the author has not expressed. ; we take for true agai?ist him ivhat he has suffi- ciently expressed." — Same, sec. 2S7. FOURTEENTH RXTLE- In addition to the foregoing particular rules of interpretation, this general and sweeping one may be given, to wit, that we are FIRST RJTLE CITED FOR SLAVERY. 205 never unnecessarily to impute to an instrument any intention what- ever which it would be unnatural for either reasonable or honest men to entertain. Such intention can be admitted only when the language will admit of no other construction. Law is "a rule of conduct." The very idea of law, therefore, necessarily implies the ideas of reason and right. Consequently, every instrument, and every man, or body of men, that profess to establish a law, impliedly assert that the law they would establish is reasonable and right. The law, therefore, must, if possible, be construed consistently with that implied assertion. RULES CITED FOR SLAVERY. The rules already given (unless perhaps the fourth) take pre- cedence of all the rules that can be offered on the side of slavery ; and, taking that precedence, they decide the question without ref- erence to any others. It may, however, be but justice to the advocates of slavery, to state the rules relied on by them. The most important are the following ; FIRST RULE CITED FOR SLAVERY. One rule is, that the most common and obvious sense of a word is to be preferred. This rule, so far as it will apply to the word free in the consti- tution, is little or nothing more than a repetition of the rule before given, (under rule fourth,) in favor of the technical meaning of words. It avails nothing for slavery ; and for the following reasons : 1. In determining, in a particular case, what is " the most common and obvious meaning" of a word, reference must be had not alone to the sense in which the word is most frequently used in the community, without regard to the context, or the subject to which it is applied ; but only to its most common meaning, Avhen used in a similar connection, for similar purposes, and with refer- ence to the same or similar subjects. For example. In a law relative to vessels navigating Massachusetts Bay, or Chesapeake Bay, we must not understand the word bay in the same sense as when we speak of a bay horse, a bay tree, or of a man standing at bay. Nor in a law regulating the rate of discount, or the days of grace, on checks, notes, drafts and orders, must we understand 18 206r KULES OP INTEKPRETATIOJf^ the word check in the same sense as when we speak of a man^s being checked in his career ; nor the word note in the same sense as when we speak of notes in music, or of a man of note ; nor the word draft in the same sense as when we speak of a ship's draft of water, or of a sketch, plan, or drawing an paper; nor the word order in the same sense as when we speak of a military order, or orders in architecture, or of different orders of men, as the order of dukes, the order of knights, the order of monks, the order of nuns, &c., &c. All can see that the meanings of the same words are so different when applied to different subjects, and used in different connections, that written laws would be nothing but jargon, and this rule utterly ridiculous, unless, in determining the most common and obvious meaning of a word, in any particular case, reference be had to its most common use in similar connections, and when applied to similar subjects, and with similar objects in view. To ascertain, then, the most "common and obvious meaning" of the word "y?"ee," in SJich a connection as that in which it stands in the constitution, we must first give it a meaning that appropri- ately describes a class, which the constitution certainly presumes wiU exist under the constitution. Secondly, a meaning which the whole " people of the United States," (slaves and all,) who are parties to the constitution, may reasonably be presumed to have voluntarily agreed that it should have. Thirdly, we must give it a meaning that will make the clause in which it stands consistent with the intentions which " the people," in the preamble, declare they have in view in ordaining the constitution, viz., " to establish justice," and " secure the blessings of liberty to themselves, (the whole people of the United States,) and their posterity." Fourth- ly, we must give it a meaning harmonizing with, instead of con- tradicting, or creating an exception to, all the general principles and provisions of the instrument. Fifthly, such a meaning must be given to it as will make the words, " all other persons," describe persons who are proper subjects of " representation " and of taxation as persons. No one can deny that, at the time the constitution was 'adopted, the most "common and obvious meaning" of the word " free," ivhen -used by the ivhole people of a state or nation, in polit- ical instrii7nents of a similar character to the constittdion, and in connectioji with such designs, principles, and provisions as are txprcssed and co?itained in the constitution, was such as has been claimed for it in this argument, viz., a meaning describing citizens, TFIRST RULE CITED FOR SLAVERY. 207 or persons possessed of some political franchise, as distinguished from aliens, or persons not possessed of the same franchise. No- body can deny this. On the contrary, everybody who argnes that it describes free persons, as distinguished from slaves, admits, and is obliged to admit, that this meaning is either in conflict with, or an exception to, the professed intent, and all the general principles and provisions of the instruments If the constitution had purported to have been instituted by a part of the people, instead of the whole ; and for purposes of injus- tice and slavery, instead of "justice and liberty;" and if "the general system of the laws" authorized by the constitution, had corresponded with that intention, there would then have been very good reason for saying that " the most common and obvious mean- ing" of the word "free," in suck a cotntection, was to describe free persons as distinguished from slaves. But as the constitution is, in its terms, its professed intent, and its general principles and provisions, directly the opposite of all this ; and as the word " fr^e" Jias a " common and obvious meaning,''' ihat accords with these terms, intent, principles, and provisions, its most " common and obvious meaning," in such a co7inection, is just as clearly opposite to what it would have been in the other connection, as its most common and obvious meaning, in the other connection, would be opposite to the meaning claimed for it in this. This position must either be admitted, or else it must be denied that the connection in which a word stands has anything to do with fixing its most " common and obvious meaning."* * " Story says, " Are we at liberty, upon any principles of reason or comiirion sense, to adopt a restrictive meaning which will defeat an avowed object of the constitution, when another equally natural, and more appropriate to the subject, is before us?" — 1 Story's Comm.,p. 445. Dane says, " With regard to the different parts of a statute, there is one general rule of construction ; that is, the construction of each and every part must be made on a full view of the whole statute ; and every part must have force and effect, if possible ; for the meaning' of every part is found in its connection with other parts." — 6 Dane, 598. Vattel says, "Expressions have a force, and sometimes even an entirely different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is also another source of inter- pretation. We ought to consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signifi- cation it may receive in itself, as that it ought to have from the thread and spirit of the discourse. Tliis is the maxim of the Roman law, Incivile est, nisi tota lege perspccia, Una aliqua pao-ticula ejus proposila. judicare, vel respondere." (It is improper to judge of, or answer to, any one particular proposed in a law, unless the whole law be thoroughly examined.) — B. 2, ch. 17, sec. 285. .^IsOj " The connection and relation of things themselves, serve also to discover 208 RULES OF INTEBI'RETATION. Again. It has already been shown that the most common, and the nearly or quite universal meaning, given to the word /ree, both in this country and in England, when used in laws of a fun- damental character, like the constitution, or, indeed, in any other laws, (for the purpose of designating one person, as distinguished from another living under the same laws,) was not to designate a free person, as distinguished from a slave, but to distinguish a citizen, or person possessed of some franchise, as distinguished from aliens, or persons not possessed of the same franchise. The authority of this rule, then, so far as it-regards the most "com- mon" meaning of this word 171 the law, is entirely in favor of the argument for freedom, instead of the argument for slavery. 2. But the rule fails to aid slavery for another reason. As has before been remarked, the word "free" is seldom or never used, even in common parlance, as the correlative of slaves, unless when applied to colored persons. A colored person, not a slave, is called a "free colored person." But the white people of the south are never, in common parlance, designated as "f7'ee per- sons," but as white persons. A slaveholder would deem it an insult to be designated as a "free person," that is, using the word free in a sense correlative Avith slavery, because such a designa- tion would naturally imply the possibility of his being a slave. It would naturally imply that he belonged to a race that was some- times enslaved. Such an implication being derogatory to his race, would be derogatory to himself. Hence, where two races live together, the one as masters, the other as slaves, the superior race never habitually designate themselves as the " free persons," but by the appropriate name of their race, thus avoiding the implica- tion that they can be made slaves. Thus we find, that the use of the word " free" was " common," and establish the true sense of a treaty, or of any other piece. The interpretation ought to he made in such a manner that all the ])arts appear consonant to each other, that what follows aqrec with what went before ; at least, if it do not mani- feslly a])peur, that, by the last clauses, something is changed that went before." — Same, sec. 286. The way the advocates of slavery proceed in interpreting the constitut ion, is this. Instead of judging of the meaning of the word ./"/xc by its connection with the rest of the iristnunent, they first separate that word entirely from all the rest of the instru- ment ; thi'ii, contrary lo all legal rules, give it the worst meaning it is under any circumsiMiicoN capable of; then bring it back into the instrument; make it the ruling woni of the instrinnent ; and finally cut down all the rest of the instrument so as to make it conform to the meaning thus arbitrarily and illegally given lothis one word free. FIRST RULE CITED FOR SLAVERY. 209 in the law, to describe those who Were citizens, but it was Tiot " common," either in the law, or in common parlance, for describ- ing the white people of the south, as distinguished from their slaves. The rule, then, that requires the most common and ob- vious meaning of the word to be preferred, wholly fails to give to the word f7-ee, as used in the constitution, a meaning correlative with slaves. 3. But in point of fact, the rule that requires us to prefer the most " common and obvious meaning," is of a wholly subordinate and unauthoritative character, when compared with the rules before laid down, except so far as it is necessary to be observed in order to preserve a reasonable connection and congruity of ideas, and prevent the laws from degenerating into nonsense. Further than this, it has no authority to give an unjust meaning to a word that admits of a just one, or to give to a word a meaning incon- sistent with the preamble, the general principles, or any other pro- * visions, of an instrument. In short, all the rules previously laid down, (unless, perhaps, the fourth, which is nearly or quite synon- ymous with this,) take precedence of this, and this is of no conse- quence, in comparison with them, (except as before mentioned,) when they come in conflict. In this case, however, of the word free, there is no conflict. And the same may be said of the words, " held to service or labor," and " the importation of per- sons," Neither of these two latter forms of expression had prob- ably ever been used in the country, either in law or in common parlance, to designate slaves or slavery. Certainly there had been no comvion use of them for that purpose ; and such, there- fore, cannot be said to be either their common or their obvious meaning. But even if such were their common and obvious meaning, it would not avail against the rule in favor of liberty or right, or any of the other rules before laid down. That the other rules take precedence of this, is proved by the fact, that otherwise those rules could never have had an existence. If this rule took precedence of those, it would invariably settle the question ; no other rule of interpretation would ever be required ; because, it is not a supposable case, that there can ever be two meanings, without one being more common or obvious than the other. Consequently, there could never be any opportunity to apply the other rules, and they, therefore, could never have had an existence. If this rule took precedence of the others, all legal interpreta» ^ 18* SJiO RULES OF INTERPRETATION. tion would be resolved into the simple matter of determining which was the most common and obvious meaning of words in particular connections. All questions of written law would thus be resolved into a single question of fact ; and that question of fact would have to be decided by a judge, instead of a jury. And a very slight preponderance of evidence, as to the senses in which words are most commonly understood, would often have to determine the question. The judge, too, would have to be pre- sumed omniscient as to the most common and obvious meaning of words, as used by the people at large, each one of whom is known to often use words in different senses, and with different shades of meaning, from all others. And the sjightest preponderance of evidence on this point, that should appear to the judge's mind alone, would be sufficient to overrule all those palpable principles of liberty, justice, right, and reason, which the people at large, (who cannot reasonably be presumed to be very critical or learned plilologists,) have in view in establishing government and laws. In short, courts, acting on such a principle, would in practice be little or nothing more than philological, instead of legal, tri- bunals. Government and laws being established by the people at large, not as philologists, but as plain men, seeking only the preserva- tion of their rights, the words they use must be made to square with that end, if possible, instead of their rights being sacrificed to nice philological criticisms, to which the people are strangers. Not that, in interpreting. written laws, the plain and universal principles of philology are to be violated, for the sake of making the laws conform to justice ; for that would be equivalent to abol- ishing all written laws, and abolishing the use of words as a means of describing the laws. But the principle is, that great latitude must be allowed in matters of philology, in accommodation of the various senses in which different men use and understand the same word in the same circumstances ; while a severe and rigid adherence is required to principles of natural right, which are far more certain in their nature, and in regard to which all men are presumed to be agreed, and which all are presumed to have in view in the establishment of government and laws. It is much more reasonable to suppose— r- because the fact itself is much more common — that men differ as to the meaning of words, than that they differ as to the orinciples which they try to express by their words. FIRST RULE CITED FOR SLAVERY. 211 No two men, in drawing up the same law, would do it. in the same words, owing to their different tastes, capacities, and habits, in the use of language. And yet a law, when written, must, in theory, mean the same to all minds. This necessity of having the law mean the same to all minds, imposes upon courts the necessity of disregarding men's different tastes and habits in the matter of words, and of construing the words of all laws so as to make them conform as nearly as possible to some general princi- ple, which all men are presumed to have in view, and in regard to which all are presumed to be agreed. And that general principle is justice. The result, then, is, that justice and men's rights — the preserva- tion of which is the great object of all the government and laws to which it is a supposable case that the whole people can have agreed — must not be staked on the decision of such a nice, friv- olous, and uncertain point, as is the one, whether this or that meaning of a word is the more common one in the community, or the more obvious one to the generality of minds, in particular cases, when, in fact, either meaning is grammatically correct, and appropriate to the subject. Instead of such folly and suicide', any meaning, that is consonant to reason in the connection in which the word stands, and that is consistent with justice, and is known and received by society, though less common or obvious than some others, must be adopted, rather than justice be sacrificed, and the whole object of the people in establishing the government be defeated. So great is the disagreement, even among scholars and lexicog- raphers, as to the meaning of words, that it would be plainly impossible for the most acute scholars to agree upon a code of written laws, having in view the preservation of their natural rights, unless they should also expressly or impliedly agree, that, out of regard to the different senses in which the different indi- viduals of their number might have understood the language in which the laws were written, the courts, in construing those laws, should be allowed very great latitude whenever it should be necessary, for the purpose of finding a sense consistent with justice. And if this latitude would be required in construing an instrument agreed to only by scholars and critics, how much more is it required in construing an instrument agreed to by mankind at large. This rule, then, that wefers the most common and obvious 21S RULES OF INTERPRETATION. meaning of words, is a very insignificant and unimportant one, compared with the previous ones; and it can legally be resorted to, only where the .prior ones, (unless, perhaps, the fourth,) are either inapplicable to, or have failed to determine the question ; as, for instance, in cases where there is involved no question of right or wrong, or of consistency or inconsistency with the preamble, the general principles, or other particular provisions of an instrument; where nothing more than questions of expediency or convenience are concerned. And even a clear case of serious incmixienience only, is sufficient to set aside the rule, unless the language be very explicit.* This rule, in favor of the most common and obvious meaning of words, has never, so far as I am aware, been laid down as deci- sive, by the Supreme Court of the United States, in any cases where any question of right, consistency, or of great and manifest convenience, was involved. I think it has generally been cited as authoritative, in constitutional questions, only where the doubt jvas, whether a particular constitutional power had been vested in the general government, or reserved to the states. In such cases, where the power was admitted to be in one government or the other, and where no question of right, of consistency with other parts of the instrument, or of manifest convenience, was involved, the court, very properly assuming that the power might be as rightfully vested in one government as in the other, at the dis- cretion of the people, have held that the doubt should be deter- mined by taking the language of the constitution to have been used in its most common and obvious sense. But such a de- cision of a mere question as to which of two governments is the depository of a particular power, which is conceded to be vested * No statute shall be construed in such manner as to be inconvenienf, or against reason." — 7 Bacon's Abrid^., 465. " Where the construction of a statute is doubtful, an argument from convenience will Iiave weight." — 3 Mass. ,221. Ch. .T. Shaw says, " The argument from inconvenience may have considerable weight upon a question of construction, where the language is doubtful ; it is not to lie presumed, upon doubtful language, that tiie legislature intended to establish a rule of action, wliich would be attended with inconvenience." — II Pickering-, 490. Ch. J. Abbott says, "An exposition of these statutes, pregnant with so much inconvenience, ought not to he made, if they will admit of any other reasonable construction."— 3 Barnwell, " are to have any 216 RULES OF INTERPRETATION. weight in settling ambiguities in it, the decision must be is favor of liberty."* But it will be said that, in opposition to this current of testimony, furnished by the laws and known principles of the nation at large, we have direct historical evidence of the intentions of particular individuals, as expressed bij themselves at or about the time. One answer to this argument is, that we have no legal evidence whatever of any such intentions having been expressed by a single individual in the whole nation. Another answer is, that we have no authentic historical evidence of such intentions having been expressed by so many as Jive hun- dred individuals. If there be such evidence, where is it ? a7id ufho were the individuals ? Probabhj not even one hundred such can be named. And j'et this is all the evidence that is to be offset against the intentions of the whole " people of the United States," as expressed in the constitution itself, and in the general current of their then existing laws. It is the constant effort of the advocates of slavery, to make the constitutionality of slavery a historical question, instead of a legal one. In pursuance of this design, they are continually citing the opinions, or intentions, of Mr. A, Mr. B, and Mr. C, as handed down to us by some history or other ; as if the opinions and inten- tions of these men were to be taken as the opinions and intentions of the whole people of the United States ; and as if the irrespon- sible staterents of historians were to be substituted for the consti- tution. If the people of this country have ever declared that these fugitive and irresponsible histories of the intentions and sayings of single individuals here and there, shall constitute the constitu- tional law of the country, be it so ; but let us be consistent, burn * There is one short and decisive answer to all the pretence that the slaveholders cannot lie presumed to have agreed to the constitution, if it be inconsistent with slavery ; and that is, that if the slaveholders cannot be presumed to liave agreed to it, then Ihey, and not the slaves, must lie presumed to have been no parties to it, and must therefore be excluded from all rights in it. The slaves can certainly be presumed to have agreed to it, if it gives them liberty. And the instrument must be presumed to have been made by and for those who could reasonably agree to it. If, therefore, any body can be excluded from all rights in it, on the ground that they cannot be presumed to have agreed to such an instrument as it really is, it must l)e the slaveholders themselves. Independently of this presumption, there is just as much authority, in the constitution itself, for excluding slaveholders, as for excluding the slaves, from all rights in it. And as the slaves are some ten or fifteen times more numerous than the slaveholders, it is ten or fifteen times more impor- tant, on legal principles, that they be included among the parties to the constitu- tion, than that the slaveholders should be. THIRD RULE CITED FOR SLAVERY. 217 the constitution, and depend entirely upon history. It is nothing but folly, and fraud, and perjury, to pretend to maintain, and swear to support, the constitution, and at the same time get our constitu- tional law from these irresponsible sources. If every man in the country, at the time the constitution was adopted, had expressed the intention to legalize slavery, and that fact were historically well authenticated, it would be of no legal importance whatever — and why? Simply because such external expressions would be no part of the instrument itself. Suppose a man sign a note for the payment of money, but at the time of signing it declare that it is not his intention to pay it, that he does not sign the note with such an intention, and that he never will pay it. Do all these declarations alter the legal char- acter of the note itself, or his legal obligation to pay ? Not at all — and why ? Because these declarations are no part of that par- ticular promise which he has expressed by signing the note. So if every man, woman, and child in the Union, at the time of adopting the constitution, had declared that it was their intention to sanction slavery, such declarations would all have been but idle wind — and why ? Because they are no part of that particular instrument, which they have said shall be the supreme law of the land. If they wish to legalize slavery, they must say so in the constitution, instead of saying so out of it. By adopting the con- stitution, they say just what, and only what, the constitution itself expresses. THIRD RULE CITED FOR SLAVERY. A third rule of interpretation, resorted to for the support of slavery, is the maxim that " Usage is the best interpreter of laws," If by this rule be meant only that the meaning to be applied to a word in a particular case ought to be the same that has usually been applied to it in other cases of a similar nature, we can, of course, hnve no objection to the application of the rule to the word " free ;" for usage, as has already been shown, will fix upon it a meaning other than as the correlative of slaves. Or if by this rule be meant that all laws must be interpreted according to those rules of interpretation which usage has estab- lished, that is all that the advocates of liberty can desire, in the interpretation of the constitution. But if the rule requires that after a particular law has once^ 19 gflS RULES OF INTERPRETATION.- twice, or any number of times, been adjudicated upon, it must always be construed as it always has been, the rule is ridiculous ,' it makes the interpretation given to a law by the courts superior to the law itself; because the law had a meaning of its own before any " usage " had obtained under it, or any judicial construction had been given to it. It is the original meaning of the constitution itself that we are now seeking for ; the meaning which the courts were bound to put upon it from the beginning ; not the meaning they actually have put upon it. We wish to determine whether the meaning which they have hitherto put upon it be correct. To settle this point, we must go back to the rules applicable to the instrument itself^ before any judicial constructions had, been given to it. All con- structions put upon it by the courts or the government, si7ice the instrument loas adopted, come too late to be of any avail in set- tling the meaning the instrument had at the time it was adopted — certainly unless it be impossible to settle its original meaning fey any rules applicable to the instrument itself. We charge the courts with having misinterpreted the instrument from the beginning ; with having violated the rules that were applicable to the instrument before any practice or usage had ob- tained under it. This charge is not to be answered by saying that the courts have interpreted it as they have,, and that that interpreta- tion is now binding, on the ground of usage, whether it were orig- inally right or wrong. The constitution itself is the same now that it was the moment it was adopted. It cannot have been altered by all the false interpretations that may have been put upon it. If this rule were to be applied in this manner to the constitution, it would deserve to be regarded as a mere device of the courts to maintain their own reputations for infallibility, and uphold the usurpations of the government on which they are dependent, rather than a means of ascerlaiaiuij the real character of the con- stitution. "* * In case E.v parte Bollnian and Swartout, Justice Johnson, of the Sup. Courl U. S.,said,— " I am far, very far, from denying;; the general authority of adjudications. Uni- formity in decisions is often as important as their abstract justice. (By no means.) But I deny that a court is precluded from the right, or exempted from the necessity, of examining into the correctness or consistency of its decisions, or tliose of any other trihunal. If I need precedent to support me in this doctrine, I will cite the example of this court, (Sup. Court U. S.) which, in the case of the United States . •». Moore, February, 1805, acknowledged that in the case of the United States »«. TOTJRTH RULE CiTED FOR SLAVERY. 219 But perhaps it will be said, that by usage is meant the practice >of the people. It would be a sufficient answer to this ground to say, that usage, against law and against right, can neither abolish inor change the law, in any case. And usage is worth nothing in the exposition of a law, except where the law is so uncertain that Qts meaning cannot be settled by the rules applicable to its words. Furthermore, it is only ancient usage that is, in- any case, of any considerable importance. This whole matter of usag« is well disposed of in the note.* FOURTH RULE CITED FOR SLAVERY. A fourth rule of interpretation-, relied on for the support of slavery, is that the words of a law must be construed to subserve the intentio7is of the legislature. So also the words of a contract Sims, Februar}', 1803, it had exerciised a jurisdiction it did not possess. Strange indeed would he the doctrine that an inadvertency, once comniitted by a court, shall ever after impose on it the necessity of persisting in its error. A case that canned be tested by principle is not law, and in a thousand instances have such cases been declared so bj/ eonris of justice." — 4 Cranch, 103. " Nuliius hominis autkorilas tantum apud pos valere debet, itl meliora non se- queremur si quis attulerit." (The authority of no man ought to weigh so much ■with us, that if ^»y one has offered anything bett-er, we may not follow it.) — Coke Lit., 383, o. note. * In Vaughn's Reports, p. 169, 70, the caurt say, — " The second objection is, that the king's officers by usage have had in several kings' times the duties of tonnage and poundage from wrecks. " 1. We desired to see ancient precedents of that usage, but could see but one in the tin>e of King James, and some in the time of the last king; which are so new ■that they are not considerable, (not worthy to be considered.) "2. Wher« the penning of a statute is dubious, long usage is a just medium to expourtd it by ; for jus et norma loquendi (the rule and law of speech) is governed by usage. And the meaning of things spoken or written must be, as it hath con- stantly been received to be by common acceptation. " But if usage hath been against the obvious meaning of an act of parliament, by the vulgar and eommos acceptation of the words, then it is rather an oppression of those concerned, than an exposition of the act, especially as the usage may be circumstanced. " As, for instance, the customers seize a man's goods, under pretence of a duty against law, and thereby deprive him of tiie use of his goods, until he regains ■them by law, which must l>8 by engaging in a suit with the king, rather than do CO he is -content to pay what is demanded for the king. By this usage all the goods in the land may be charged with the duties of tonnage and poimdage ; for when the concern is not great, most men (if put to it) will rather pay a little VvTongfully, than free themselves from it overchargeably. " And in the present case, the gonuine meaning of the words and purpose of the aet, is not according to the pretended usage, but against it, as bath been shewed; iherefare usage in this case weishs not." 220 RULES OF INTERPRETATION. must be construed to subserve the intentions of the parties. And the constitution niust be construed to subserve the intentions of " the people of the United States.'' Those who quote this rule in favor of slaver}-, assume that it was the intention of " the people of the United States" to sanction slavery ; and then labor to construe all its words so as to make them conform to that assumption. But the rule does not allow of any such assumption. It does not supersede, or at all infringe, the rule that "the intention of the legislature is to be collected from the words they have used to convey it."* This last rule is obviously indispensable to make written laws of any value ; and it is one which the very existence of written laws proves to be inflexible; for if the intentions could be assumed independently of the words, the worfs would be of no use, and the laws of course would not be written. Nor does this rule, that words are to be construed so as to sub- serve intentions, supersefie, or at all infringe, the rule, that the intentions of the legislature are to be taken to be just what their words express, whether such be really their intentions or not.f * The Supreme Court United States say, " The intention of the legislature is to be searched for in the words which the legislature has employed to convey it." — 7 Cranch, 60. Also, " The intention of the instrument (the constitution) must prevail ; this intention must be collected from its words." — 12 Whealon, 332. t Story says, " We must take it to be true, that the legislature intend precisely •what they say."— 1 Story's C. C. J?ep.,653. Valid says, •' Much less is it permitted, when the author of a piece has himself there made known his reasons and motives, to attribute to him some secret reason, as the foundation to interpret the piece contrary to the natural sense of the terms. Thotigh he really hcul the view attributed to him, if he has concealed i(, and made knoion others, titc irUerpr elation can only be founded Alport these, (which he has made known,) andnol upon the vietes tchich the attthor has not expressed ; we talie for true as^ainst him lehat he has sufficiently declared." — B. 2,ch. 17, sec. 287. Ruther forth says, " The safest ground for us to stand u|)on, is what the writer himself affords us; when the legislator himself i>as i)lainly declared the reason (intention) of the law in the body of it, we may argue from thence with certainty." — B. 2, ch. 7, p. 3.30. Ruther forth also says, " A promise, or contract, or a will, ^ives us a right to what- ever the promisor, the contractor, or the testator, designed or inlendcd to make ours. But his design or intention, if il is coiisidcretl merely as an act of his mind, cannot be known to any one besides himself. Wlien, therefore, we speak of iiis design or intention as the measure of mir claim, we must necessarily be understood to mean the design or intention which ho lias made known or expressed ity some outward mark ; because, a design or intention which does not appear, can have no more effect, or can no more produce a claim, than a design or intention which does not exist. "In Like manner, the obligatioixs that are produced by the civil laws of our coun- IFOtTRTH R0LE CITED FOR SLAVERY. 221 The two rules, that " words must be construed to subserve intentions," and that " intentions must be collected from the words," •may, at first view, appear to conflict with each other. There is, however, no conflict between them. The rule, that words must be ■construed to subserve intentions, applies only to ambiguous words ; to those words which, on account of their ambiguity, Tieed to he construed ;^ and it assumes that the intentions of the law have been made known by other words, that are not ambiguous. The ■whole meaning of the rule^ then^ is, that the intentioTis of ambigu- ous words must be construed in conformity with the intentions expressed in those words that are explicit A Where no intentions are explicitly revealed, the court will pre- sume the best intentions of which the words, taken as a whole, are ■capable ; agreeably to the rule cited from the Supreme Court of Massachusetts, viz., " It is always to be presumed that the legisla- ture intend the most beneficial construction of their acts, when the design of them is not apparent." — 4 Mass., 537. This rule, then, that the ambiguous words of an instrument must be construed to subserve the intentions expressed by other words, that are explicit, requires that the ambiguous words in the constitution (if there are any such) be construed in favor of liberty, instead of slavery. try arise from the intention of the legislator ; not merely as this intention is an act ■of the mind, hut as it is declared or expressed by some outward sign or mark, which makes it known to us. For the intention of the legislator, whilst he keeps it to himself, produces no effect, and is of no more account than if he had no such intention. Where we have no knowledge, we can be under no obligation. We cannot, therefore, be obliged to comply with his will, where we do not know what his will Is. And we can no otherwise know what his will is, than by means of some outward sign or mark, by which this will is expressed or declared." — B. 2, rhap. 7, p. 307. * All rules of construction apply only to words that need to be construed; to those which are capable of more than one meaning, or of a more extended or restricted sense, and whose meanings in the law are therefore uncertain. Those words whose meanings are plain, certain, and precise, are not allowed to be construed at all. It is a fundamental maxim, as before cited, (under rule thirteenth,) that it is not ad- missible to interpret what needs no interpretation. + Valtel says, " If he who has expressed himself in an obscure or equivocal man- ner, has spoken elsewhere more clearly on the same subject, he is the best inter- preter of himself. We ought to interpret his obscure or vague expressions in such a manner that they may agree with those terms thai are clear and without ambi- gvity, which he has used elsewhere, either in the same treaty or in some other oj'the like kind." — B. 2, ch. 17, sec. 284. And this is an universal rule with courts, to interpret the ambiguous words of an iufiirament by those that are explicit. 222 RULES OF INTERPRETATION. Thus have been stated and examined all the rules of interpreta- tion, (with the exception of one, to be named hereafter,) that occur to me as being of any moment in this discussion. And I think the soundness and permanent authority of those that make for liberty and justice, if indeed they do not all make for liberty and justice, have been shown. But of the reason and authority of all these rules, the reader must of necessity judge for himself; for their whole authority rests on their reason, and on usage, and not on any statute or constitu- tion enacting them."* And the way for the reader to judge of their soundness, is, for him to judge whether they are the rules by which he ivishcs his oion contracts, and the laws on which he him- self relies for protection, to be construed. ^Vhether, in fact, holiest contracts, holiest laws, and honest constitutioTis, can be either agreed upon, or sustained, by mankiyid, if they are to be construed on any other principles than those contaiiied in these rules. If he shall decide these questions in favor of the rules, he may then properly consider further, that these were the received rules of legal interpretation at the time the constitution was adopted, and had been for centuries. That they had doubtless been the received rules of interpretation from the time that laws and contracts were first formed among men ; inasmuch as they are such as alone can secure men's rights under their honest contracts, and under honest laws, and inasmuch also as they are such as unprofessional and unlearned men naturally act upon, under the dictates of common sense, and common honesty. If it now be still objected that the people, or any portion of them, did not intend what the constitution, interpreted by the pre ceding'rules, expresses, the answer is this. We must admit that the constitution, of itself, independently of the actual intentions of the people, expresses some certain, fixed definite, and legal intentions ; else the people themselves would express no intentions by agreeing to it. The instrument would in fact, contain nothing that the people could agree to. Agreeing to an instrument that had no meaning of its own, would only be agreeing to nothing. * It will not do to take these, or any other rules, on trust from courts ; for courts, althou^li ihey more {generally disregard, or keep out of sight, all rules which stand in the way of any unlawful decisions which they are delerniined to make, can yet ■Ot very unfrequenily lay down false rules to accomplish their purposes. For these reasons, only those of their rules that are plainly adapted to promote certainty and jostice, are to be relied on. RULES OF INTERPRETATION. 223 The constitution, then, must be admitted to have a meaning of its own, independently of the actual intentions of the people. And if it be admitted that the constitution has a meaning of its own, the question arises. What is that meaning? And the only answer that can be given is, that it can be no other than the meaning which its words, interpreted by sound legal rules of interpretation, express. That, and that alone, is the meaning of the constitution. And whether the people who adopted the constitution really meant the same things which the constitution means, is a matter which they were bound to settle, each individual with himself, before he agreed to the instrument ; and it is therefore one with which we have now nothing to do. We can only take it for granted that the people intended what the constitution expresses, because, by adopting the instrument as their own, they declared that their intentions corres- ponded with those of the instrument. The abstract intentions, or meaning, of the instrument itself, then, is all that we have now any occasion to ascertain. And this we have endeavored to do, by the application of the foregoing rules of interpretation. It is perfectly idle, fraudulent, and futile, to say that the people did not agree to the instrument -m the sense which these rules fix upon it ; for if they have not agreed to it in that sense, they have not agreed to it at all. The instrument itself, as a legal instru- ment, has no other sense, in which the people could agree to it. And if the people have not adopted it in that sense, they have not yet adopted the constitution; and it is not now, and never has been, the law of the land. There would be just as much reason in saying that a man who signs a note for the payment of five hundred dollars, does not sign it in the legal sense of the note, but only in the sense that he will not pay, instead of the sense that he will pay, so much money, as there is in saying that the people did not agree to the constitution in its legal sense, but only in some other sense, which slaveholders, pirates, and thieves might afterwards choose to put upon it. Besides, does any one deny that all the rest of the constitution, except what is claimed for slavery, was agreed to in the sense which these rules put upon it? No decent man will make such a denial. Well, then, did not the people intend that all parts of the same instrument should be construed by the same rules ? Or do the advocates of slavery seriously claim that three or four millions of people, thinly scattered over thirteen states, and having no opportunity for concert, except by simply saying yea, or nay, to the 224 RULES OF INTERPRETATION. instrument presented to them, did, nevertheless, at the time ol agreeing to the instrument, agree, also, by means of some myste- rious, invisible, miraculous intercourse, that the slave clauses, as they ate called, should be construed by directly opposite rules from all the rest of the instrument? Even if they did so agree, such agreement would be no part of the constitution ; but if they did not, ihey certainly did not agree to sanction slavery. No matter what any, or all, of them said before, or after, or otherwise than by, the adoption of the instrument. What they all said by the single act of adoptio7i, is all that had any effect in establishing the con- stitutional law of the country. Certainly, the whole instrument must be construed by uniform rules of interpretation. If, then, the slave clauses, as they are called, are construed so as to sanction slavery, all the rest of the instrument must be construed to sanction all possible iniquity and injustice of which its words can be made to insinuate a sanction. More than this. " The Imcs passed in pursuance of the constitu- tion,'''' must of course be construed by the same rules as the consti- tution itself. If, then, the constitution is to be construed as ad- versely as possible to liberty and justice, all " the laws passed in pursuance of it" must be construed in the same manner. Such are the necessary results of the arguments for slavery. Nothing can well be more absurd than the attempt to set up the real or pretended intentions of a few individuals, in opposition to the legal meaning of the instrument the whole people have adopt- ed, and the presumed intentions of every individual who was a party to it. Probably no two men, framers, adopters, or any others, ever had the same intentions as to the whole instrument; and probably no two ever will. If, then, one man's actual intentions arc of any avail against the legal meaning of the instrument, and against his presumed intentions, any and every other man's actual intentions are of equal importance ; and consequently, in order to sustain this theory of carrying into effect men's actual intentions, we must make as many different constitutions out of this one instrument, as there were, are, or may be, different individuals who were, are, or may be, parties to it. But this is not all. It is probable that, as matter of fact, four fifths, and, not unlikely, nine tenths, of all those who were legally parties to the constitution, never even read the instrument, or had any definite idea or intention at all in regard to the relation it was to bear, either to slavery, or to any other subject. Every inhab- RULES OF INTERPRETATION. 225 ftant of the country, man, woman, and child, was legally a party to the constitution, else they would not have been bound by it. Yet how few of them read it, or formed any definite idea of its charac- ter, or had any definite intentions about it. Nevertheless, they are all presumed to have read it, understood it, agreed to it, and to have intended just what the instrument legally means, as well in regard to slavery as in regard to all other matters. And this pre- sumed intention of each individual, who had no actual intention at all, is of as much weight in law, as the actual intention of any of those individuals, whose real or pretended intentions have been so much trumpeted to the world. Indeed the former is of altogether more importance than the latter, if the latter were contrary to the legal meaning of the instrument itself. The whole matter of the adoption of the constitution is mainly a matter of assumption and theory, rather than of actual fact. Those who voted against it, are just as much presumed to have agreed to it, as those who voted for it. And those who were not allowed to vote at all, are presumed to have agreed to it equally with the others. So that the whole matter of the assent and intention of the people, is, in reality, a thing of assumption, rather than of reality. Nevertheless, this assumption must be taken for fact, as long as the constitution is acknov/ledged to be law ; because the constitution asserts it as a fact, that the people ordained and estab- lished it ; and if that assertion be denied, the constitution itself is denied, and its authority consequently invalidated, and the govern- ment itself abolished. Probably not one half, even, of the male adults ever so much as read the constitution, before it was adopted. Yet they are all pre- sumed to have read it, to have understood the legal rules of inter- preting it, to have understood the true meaning of the instrument, legally interpreted, and to have agreed to it in that sense, and that only. And this presumed intention of persons who never actually read the instrument, is just as good as the actual intention of those who studied it the most profoundly ; and better, if the latter were erroneous. The sailor, who started on a voyage before the constitution was framed, and did not return until after it was adopted, and knew nothing of the matter until it was all over, is, in law, as much a party to the constitution as any other person. He is presumed to have read it, to have understood its legal meaning, and to have agreed to that meaning, and that alone ; and his presumed intention 226 RULES OF INTEKPRETATION. is of as much importance as the actual intention of George Wash- ington, who presided over the convention that framed it, and took the first presidential oath to support it. It is of ahogether more consequence than the intention of Washington, if Washington intended anything different from what the instrument, legally interpreted, expresses ; for, in that case, his intention would be of no legal consequence at all. Men's presumed intentions were all uniform, all certainly right, and all valid, because they corresponded precisely with what they said by the instrument itself; whereas their actual intentions were almost infinitely various, conflicting with each other, conflicting with what they said by the instrument, and therefore of no legal consequence or validity whatever. It is not the intentions men actually had, but the intentions they constitutionally expressed, that make up the constitution. And the instrument must stand, as expressing the intentions of the peo- ple, (whether it express them truly or not,) until the people either alter its language, or abolish the instrument. If " the people of the United States" do not like the constitution, they must alter, or abolish, instead of asking their courts to pervert it, else the consti- tution itself is no law. Finally. If we are bound to interpret the constitution by any rules whatever, it is manifest that we are bound to do it by such rules as have now been laid down. If we are not bound to inter- pret it by any rules whatever, we are wholly without excuse for interpreting it in a manner to legalize slavery. Nothing can jus- tify such an interpretation but rules of too imperative a character to be evaded.^ * Story says, " In construine; the constitution of the United States, we are, in the first instance, to consider what are its nature and olijects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation ; and it should, therefore, he admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of Itco senses, each of which is conformahle to common usage, that sense is to be adopted, rchich, without departing from, the literal import of the words, best harmonizes with the nature imd objects, the scope and designs, of the instrument. Where the words are unam- biguous, but the provision may cover more or less ground, according to the inten- tion, which is subject to conjecture ; or where it may include in its general terms more or less itian might seem dictated by the general design, as that may be gathered from other parts of the instruineni, there is much more room for controversy ; and, the ar;rument from inconvenience will probably have different influences upon differ- ent minds. Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; atid wl^enever it is a question of power, it should RULES OF INTERPKETATION. 227 be approached with infinite caution, and affirmed only upon the most persuasive reasons. In examining the c()nstitutioti, the .intecedent situation of the country, and its institutions, the existence atvd operations of the state governments, the powers and operations of the confederation, in short, all the circumstances which had a tendency to produce or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history, and contemporary interpretation, to aid us in just conclusions. " // is obvious, hoicever, that contemporary interpretation must be resorted to with muck qualification and reserve. In the first place, the private interpretation of any particular man, or body of men, must manifestly be open lo much observa- tion. The constitution was adopted by the people of the United States ; and it was submitted to the whole, upon a just survey of its provisions, as they stood in the text itself. In different states, and in different conventions, different and very opposite objections are known to have prevailed ; and might well be presumed to prevail. Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favor. And there can be no certainty, either that the different stale conventions, in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a single stale convention, the same reasoning prevailed, with a majority, nmch less with the whole, of the supporters of it. In the interpretation of a state statute, no man is insensible of the extreme danger of resorting to the opinions of those who framed it, or those who passed it. lls terms may have differently impressed different minds. Some may have implied limitations and olijects, which others would have rejected. Some may have taken a cursory view of its enactments, and others have studied them with profound attention. Some may have been governed by a temporary interest or excitement, and have acted upon that exposition which most favored their present views. Others may have seen, lurking beneath its text, what commended it to their judg- ment, against even present interests. Some may have interpreted its language strictly and closely ; others, from a different habit of thinking, may have given it a large and liberal meaning. It is not to be presumed, that, even in the convention which framed the constitution, from the causes above mentioned, and other causes, llie clauses were always understood in the same sense, or had precisely the same extent of operation. Every member necessarily judged for himself; and the judgment of no one could, or ought to be. conclusive upon that of others. The known diversity of construction of different parts of it, as well as the mass of its powers, in the different state conventions ; the total silence upon many objections, which have since been started; and the strong reliance upon others, which have >ince been universally abandoned, add weight to these suggestions. Nothing but the text itself was adopted by the people. And it would certainly be a most extrav- agant doctrine to give to any commentary then made, and, a fortiori, to any com- mentary since made under a very different posture of feeling and opinion, an authority which should operate an absolute limit upon the text, or should supersede its natural and just construction. "Contemporary construction is properly resorted to, to illustrate and confirm the text, to explain a doubtful phrase, or to expound an obscure clause ; and in propor- tion to the uniformity and universality of that construction, and the known ability and talents of those by whom it was given, is the credit to which it is entitled. It can never abrogate the text ; it can never fritter away its obvious sense; it can never narroic down its true limitations ; it can never enlarge its natural bounda- ries. We shall have abundant reason hereafter to observe, when we enter upon the analysis of the particular clauses of the constitution, how many loose interpreta- tions and plausible conjectures were hazarded at an early period, which have since silently died away, and are now retained in no living memory, as a topic either of 228 RULES OF INTERPRETATION. praise or blame, of alarm or of congratulation. — I Slon/s Com. on the Const., pp. 3S7 to 392. Story makes the following caustic comments upon Mr. Jefferson's rules of inter- pretation. They are particularly worthy the attention of those modem commenta- tors, who construe the conslitutioii to make it sanction slavery. He says, — " Mr. Jefferson has laid down two rules, which he deems perfect canons for the interpretation of the constitution.* The first is, ' The capital and leading object of the constitution was, to leave with the states all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other states ; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it ; and in favor of the states in the former, if possible to be so construed.' Now, the very theory on which this caTion is found- ed, is contradicted by the provisions of the constitution itself In many instances, authorities and powers are given, which respect citizens of the respective states, without reference to foreigners, or the citizens of other states. t But if this general theory were true, it would furnish no just rule of interpretation^ since a particular clause might form an exception to it ; and, indeed, every clause ought, at all events, to be construed according to its fair intent and objects, as disclosed in its language. What sort of rule is that, which, without regard to the intent or objects of a par- ticular clause, insists that it shall, if possible, (not if reasonable,) be construed in favor of the states, simply because it respects their citizens'? The second canon is: 'On every question of construction (we should) carry ourselves back to the time when the constitution was adopted ; recollect the spirit manifested in the debates; and instead of trying what meaning maybe squeezed out of the text, or invented against it, conform to the probable one in which it was passed.' Now, ■who does not see the utter looseness and incoherence of this canon '.' How are we to know what was thought of particular clauses of the constitution at the time of its adoption? In many cases, no printed debates give any account of any con- struction ; and where any is given, different persons held different doctrines. Whose is to prevail .' Besides, of all the state conventions, the dcltates of five only are preserved, and these very imperfectly. What is to be done as to the other eight states .' What is to be done as to the eleven new states, which have come into the Union under constructions, which have been established against what some persons may deem the meaning of the framers of it? How are we to arrive at what is the most probable meaning? Are Mr. Hamilton, and Mr. Madi- son, and Mr. Jay, the expounders in the Federalist, to be followed ? Or are others of a different opinion to guide us ? Are we to be governed by ihe opinions of a few, now dead, who have left them on record ? Or by those of a few, now living, simply because they were actors in those days, (constituting not one in a thousand of those who were called to deliberate upon the constitution, and not one in ten thousand of those who were in favor or against it, aniong the people)? Or arc we to be governed by tlie opinions of those who constituted a majority of those who were called to act on that occasion, eithexas framers of, or voters upon, the constitu- tion? If by the latter, in what manner can we know those opinions? Are we to be governed by the sense of a majority of a particular slate, or of all of the United States? If so, how are we to ascertain what that sense was? Is the sense of tlve constitution to be ascertained, not by its own text, but by the ' probable meaning,'' to be gathered by conjectures from scattered documents, from private papers, from the table-talk of some statesmen, or the jealous exaggerations of others ? Is the con- stitution of tfie United States to be the only instrument, xohich is not to be inter- preted by what is written, but by probable guesses, aside from the text ? What * 4 Jefferson's Correspondence, 373, 391, 392, 396. t 4 Jetlerson'8 Correspondence, 391, 392, 396. RULES OF INTERPRETATION. ^29 iBould be said of interpreting a statute of a state legislature, by endeavoring to Jind out, from private sources, the objects and opinions of every member ; how every one thought ; tchat he wished ; hoio he interpreted it? Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed as to ' the probable meaning ' of the framers or of the people, what inte!r- pretation is to followed ? These, and many questions of the same sort, might be asked. It is obvious, that there can be no security to the peojile in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text; but the loords are to be bent and. broken by the 'probable meaning' of persons, whom they never knew, and whose opinions, and means of information, may be no belter than their own ? The people adopted the constitution, according to the woi-ds of the text in their reasonable interpretation, and not according to the private interpretation of any particular vien. The opinions of the latter may some- times aid us in arriving at just results, but they can never be conclusive. The Federalist denied that the president could remove a public officer without the con- sent of the senate. The first congress affirmed his right by a mere majority. Which is to be followed? "— 1 Story's Com. on Const., 390, 392, note. Story says, also, " Words, from the necessary imperfection of all human language, acquire different shades of meaning, each of which is equally appropriate, and equally legitimate ; and each of which recedes in a wider or narrower degree from the others, according to circumstances ; and each of which receives from its general use some indefiniteness and obscurity, as to its exact boundary and extent. We are, indeed, often driven to multiply commentaries from the vagueness of words in themselves ; and, perhaps, still more often from the different manner in which different minds are accustomed to employ them. They expand or contract, not only from the conventional modifications introduced by the changes of society, but also from the more loose or more exact uses, to which men of different talents, acquirements, and tastes, from choice or necessity, apply them. No person can fail to remark the gradual deflections in the meaning of words, from one age to another, and so constantly is this process going on, that the daily language of life, in one generation, sometimes requires the aid of a glossary in another. It has been justly- remarked, that no language is so copious, as to supply words and phrases for every complex idea ; or so correct, as not to include many equivocally denoting different ideas. Hence it must happen, that, however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. We must resort, then, to the context, and shape the particu- lar meaning so as to make it ft that of the connecting icords, and agree with the subject matter." — 1 Story's Coin., 437. Ch. J. Marshall, speaking for the Sup. Court United States, .says, " The spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be danger- ous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the difierent clauses of an instrument bear upon each other, and would be inconsistent unless the natural and common import of words be varied, construction becomes necessary, and a departure fronj the obvious meaning of words is justifiable." — 4 Wheaton, 202. Ch. J. Taney, giving the opinion of the Supreme Court of the United States^ says, " In expounding this law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law, as it is passed, is the will of the majority of both houses, and the only mode in which that 20 230 RULES OF INTER PRE TATIOl?, will is spoken, is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguky exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times is which it was passed." — 3 Howard, 24. Coke says, " The words of an act of parliament must be taken in a lawfnl and rightful sense." — Coke Lit., 381, 6. Also, " The surest construction of a statute is by the rule and reason of the cora*- mon law." — Same, 272, h. " Acts of parliament are to be so construed as no man that is innocent, or free from injury or wrong, beby a literal construction punished or endamaged." — Same, 360, a. " When the construction cf any act is left to the law, the law, which abhorreth injury and wrong, will never so construe it, as it shall work a wrong." — Same, 42, a. " It is a maxim in law, that the construction cf a law shail ncFt work aa injury." Same, 183, a. " The rehearsal or preamble of the statute is a good mean to find out the meaning' of the statute, and as it were a key to open the understanding thereof." — Same, 79, a. " It is the most natural and genuine e.Trpositiott of a statute to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers." — Same, 381, b. " If the words of a statute are obscure, they shaJl be expoonded most strongly for the public good." — Plowden, 82. " It is most reasonable to expound the words which seem contrary to reason^ according to good reason and equity." — Same, 10*). " Such construction ought to be made of acts of parliament as may best stand with equity and reason, and mostly avoid rigor and mischief." — Same, 364. " The judges took the common law for their guide, which is a master in exposi- tion, the reason whereof they pursued as near as they could." — Same, 364. "Words of a statute ought not to be interpreted to destroy natural justice." — Viner's Abridg: Conslr. of Stat., sec. 156. Blackstone's rules of interpiTtalion arc as follows: " The fairest and' most rational method to interj^rct the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and pobable. And these signs are either the words, the context, the sub- ject matter, the effects and consequence, or the spirit or reason of the law. Lei ns take a view of them all. "1. Words are ^encraZ/y to be understood in their usual and most known sig- nifications ; not so much regarding the propriety of grammar as their general and popular use." * * * "Terms of art, or techrrical terms, mast he taken according to the accpptatior« »f the learned in each art, trade, OT science." * * * "2. If words happen to be still dubious, we may establish their meaning by the context; with which it may be of singular use to compare a word or sentence, whenever they are ambiguons, equivocal, or intricate. Thus the proem, or pream- We, is often called in to help the construction of an act of parliament." * * * " 3. As to the sitbjerl matter, words are always to be understood as having regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end." * * * " 4. As to the rffects and consequence, the rule is, thai where words bear either aone, or a very absurd signification, if literally nnderstofxl, wc must a little deviate from the received sense of them." * * * "5. But lastly, the most universal and effectual way of discerning the truemeaiw S.ULES OF raTERPRETATION. 231 ing oi' a law, where the words are duLious, is by considering tlie reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it." * * * — I Blackstone, 59, €0. Blackstmie (1, 59) also lays it down as being '-Contrary to all true forms of reasoning, to argue from particulars to generals." Yet this is the universal mode of reasoning among those who hold slavery to be constitutional. Instead of reason- ing from generals to particulars, they reason from particulars to generals. For example. Instead of judging of the word " free " by reference to the rest of the instrument, they judge of the whole instrument by reference to the word "free." They first fi.K the meaning of the vrord " free," by assuming for it, in defiance of the rest of the instrument, and of all legal rules, the vrarst possible meaning of which it is_ capable, simply on tlie illegal grounds that the slaveholders cannot be presumed to have been willing to do justice, but that all the rest of the country can be presumed willing to do injustice ; and they then limit, bend, and break all the ■rest of the instrument to make it conform to that meaning. It is only by such process as this that tiie constitution is ever made to sanction slavery. " The constitution is law, the people having been the legislators. And the sev- eral statutes of the commonwealth, enacted pursuant to the constitution, are law, the senators and representati^'es being the legislators. But the ptfovisions of the constitution, and of any statute, are the intentions of the legislature thereby mani- fested. These intentions are to be acccriained by a reasonable construction, result- ing from the application of correct maxims, generally acknoreledged and received. " Two of these maxims we will mention. That the natural import of the words of any legislative act, according to the common use of them, when applied to the subject matter of the act, is to be considered as expressing the intention of the leg- islature, unless the intention, so resulting from the ordinary import of the words, be repugnant to souud, ackuov/ledged principles of national policy. And if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those priit- ciples ; unless the intention of the legislature be clearly and manifestly repugnant to them." — Opinion of the justices. Parsons, Sewall, and Parker, 7 Mass., 524. Chief Justice Parker says, "I have always understood that it was right and proper to consider the whole of a statute, and the preamble, and the probable Inten- tion of the legislature, in order to ascertain the meaning of any particular section ; and that this mode of interpretation is justifiable, even where the words of the section itself may be unambiguous. Certainly if one section, however explicit its terms, if taken literally, loould contravene the general object of the statute, it should be restrained so as lo conform to that object." — 1 Pickering, 258. " It is unquestionably a well-settled rule of construction, that when words are not precise and clear, such constructiou will be adopted as shall appear most rea- sonable, and best suited to accomplish the objects of the statute ; and where any particular construction would lead to an absurd consequence, it will be presumed that some exception or qualification was intended by the legislature, to avoid such a conclusion." — 24 Pickering, 370. " When the meaning of any particular section or clause of a statute is questioned, it is proper, no doubt, to look into the other parts of the statute ; otherwise the different sections of the same statute m.ight be so construed as to be repugnant, and the intention of the legislature might be defeated. And if, upon examination, the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act." — ■ 1 Pickering, 250. The SupremeCourt of the United States say, "It is undoubtedly a well-established priaciple in the exposition of statutes, that every part is lo be considered, and the 232 RULES OF INTERPRETATION, intention of the legfislature to be extracted from the whole. It is also true that where great inconvenience will result from a particular construction, that construc- tion is to be avoided ; unless the meaning of the legislature be plain, in which case it must be obeyed." — 2 Ch-anch, 35S. " When the words are not explicit, the intention is to be collected from the con- text, from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed, according to what is consonanl to reason and good discretion. These rules, by which the sages of the law, according to Plowden, liave ever been guided ia seeking for the intentioa of the legislature, are maxims of sound interpretation, which have been accumu- lated by the experience, and ratified by the wisdom of ages." — I Kent, 61. Kent declares the rule of the English courts to be this : " They will not readily presume, out of respect and duly to the lawgiver, that any very v.njusl or absurd consequence was within the contemplation of the law. But if it should be too palpable in il.s direction to admit of but one construction, there is no doubt, iu the English law, as to the binding efficacy of the statute." — 1 Kent, 44". This rule implies tliat if a statute be susceptible of more than " one construction,"' the just or reasonable one must be jjreferred to "any very unjust or absurd one." Kent also says, •' Statutes are likewise to be construed in reference to the princi- ples of the common law;'' (wliich, in vol. 1, p. 470, he describes as being, in great part, but " the dictates of natural justice and cultivated reason ;") " for it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely required. This has been the language of the courts in every age, and wlien we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law, as the perlection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction." — 1 Kent, 463. JRutherforth says, " All civil laws, and all contracts in general, are to be so con- strued, where the words are of doubtful meaning, as to make them produce no other effect but what is consistent with reason, or with the law of nature." — B. 2, ch. 7, p. 827. " Lord Coke has laid it down as a general rule, that where words may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment which standeth with law shall be taken." — Co. Lit., 42, a. 6, 183, o. Cited also in Pothier. " When the terms of a contract are capable of two significations, we ought to understand them in the sense which is most agreeable to the nature of the contract." — Pothier on Contracts, part 1, ch. 1, art. 7, rule 3. The Supreme Court of the United Slates say, " An act of congress ought never to be construed to violate the law of nations," (or the law of nature, they might have said, for the same reason, for the two are substantially synonymous in principle,) " if any olhcr possible construction remains." — 2 Cranch, 64. Parsons, Chief Justice, says, " It is always to be presumed that the legislature intend the most beneficial construction of their acts, when the design of them is not apparent." — 4 Mass., 537. " Statutes are not to be construed as taking away a cominon law right, unless the intention is manifest." — 4 Mass., 473. " It is an established rule, that a statute is not to be construed so as to repeal the common law, unless the intent to alter it is clearly expressed." — 9 Pickering, 514. "Laws are construed strictly to save a right, or avoid a penalty ; and liberally to give a remedy, or efi^ect an object declared in the law." — 1 Baldwin, 316. "Statutes are oxiwunded by the rules and reasons of the common law; and though the words of a statute be general, yet they shall be specially construed to avoid an apparent injury." — 6 Daiie, 588, HULES OF INTERPRETATION. 233 "This policy, founded in manifest justice, ouglit to be enforced in this case, if the several laws in the statute-book, or any one of them, will admit of a reasonable construction to this effect." — 14 Mass., 92. " No statute ought to be so construed as to defeat its own end ; nor so as to operate against reason ; nor so as to punish or damnify the innocent ; nor so as to delay justice." — 6 Dane, 596. " The best construction of a statute is to construe it as near to the rule and rea- son of the common law as may be, and by the course which that observes in other cases." — Bacon's Abr. Stat., I. 32. Lord Coke, cited by Chief Justice Abbott, says, "Acts of parliament ate to be so construed, as no man that is innocent, or free from injury, or wrong, be by a literal construction punished or endamaged." — 3 Barnwell <$- A. 271. " When any words or expressions in a writing are of doubtful meaning, the first rule in mixed interpretation is to give them such a sense as is agreeable to the subject matter of which the writer is treating. For we are sure on the one hand that this subject matter was in his mind, and can on the other hand have no reason for thinking that he intended anything which is different from it, and much less that he intended anything which is inconsistent with it." — Rutherforth, b. 2,ch, 7, p. 323. " The interpretation or construction of the constitution is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation of a law." — 1 Kent, 449. " But we should particularly regard the famous distinction of things JavorabU, and things odious." — Valtel, B. 2, ch. 17, sec. 300. " The precise point of the will of the legislature, or of the contracting powers, is what ought to be followed ; but if their expressions are indeterminate, vague, or sus- ceptible of a more or less extensive sense, — if this precise point of their intention in the particular case in question cannot be discovered and fixed, by other rules of interpretation, it should be presumed, according to the laws of reason and equity." — Same. " All the thing's ichich, without too much burthening any one person in particulaT, are useful and salutary to human society, ought to be reckoned among the faoor- able things. For a nation is already under a natural obligation with respect to things of this nature ; so if it has in this respect entered into any particular en- gagements, we run no risk in giving these engagements the most extensive servse they are capable of receiving. Can we be afraid of doing violence to equity by following the law of nature, and in giving the utmost extent to obligations that are for the common advantage of mankind ? Besides, things useful to human society, on this account, tend to the common advantage of the contracting powers, and arc consequently favorable. Let us, on the contrary, consider as odious everything that, in its own nature, is rather hurtful than (if use to the human race." — Same, sec 302. " When the legislature, or the contracting powers, have not expressed their will in terms that are precise and perfectly determinate, it is to be presumed that they desire what is most equitable." — Same, sec. 307. " We favor equity, and fly from what is odious, so far as that may be done with- out going directly contrary to the tenor of the writing, and without doing violence to terms." — Same, sec. 308. Assuming that the preceding principles of interpretation are correct, it may be allowable, on account of the importance of the subject, and the contrary opinions which appear to prevail, to apply them to another clause of the constitution Ihas those claimed for slavery. 20* 234 RULES OF INTERPRETATION. The constitution declares that "the congress shall have power to declare war." This power, unqualified in its terms, would, if taken literally, and independently of the declared objects of this and all the other ]3owers granted to the government, give congress authority to declare war for any cause whatever, just or unjust, for reasons the most frivolous and wicked, as well as for the most important and necessary purposes of self-preservation. Yet such is not the power that is actually granted. All the principles of interpretation before laid down, requiring a construc- tion consistent with justice, and prohibiting the contrary, limit this power to cases of just war ; war that is necessary for the defence and enforcement of rights. The objects of the powers granted to congress are " to establish justice," " secure liberty," "provide for the common defence," Beveridge, cited by Richardson. "Citizen. 1. The native of a city, or an inhabitant who enjoys the freedom and privileges of the city in which he resides ; the freeman of a city, as distin- guished from a foreigner, or one not entitled to its franchises. * * * 5. In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate." — Webster. " Citizens, persons. One who, under the constitution and laws of the United States, has a right to vote for representatives in congress, and other public offuxrs, and uho is qualified to fill offices in the gift of the people." — Bouvicr's {American) Law Did. Kent denies that citizenship depends on one's right of suffrage, and says that women and thildren are citizens. — 2 Kent, 258, note in third edition. I am not aware that Story anywhere gives a definition of the word citizen, as it "^HY THE WORDS "FREE PERSONS" WERE USED. 253 It will be seen also, by these definitions, that, taking the word in its best sense, and also with reference to the state, it could, at most, only have been held synonymous with the " free persons" or "freenien" of the state; and that we should then have been obliged to employ these latter terms, in their technical senses, in order to define it. It would also have been even more liable than the term " free" to the objection of impliedly excluding slaves ; for in Rome, where the term was used, and whence it has come down to us, they had slaves, who of course were not regarded as citizens ; while in England, whence the term "free" was borrowed, they had no slaves. The term " free citizen" was also used in the then existing State constitutions of Georgia and North Carolina, where they held slaves, (though not legally.) If, then, the word had been employed in the United States constitution, there would have been at least as much reason to say that it excluded slaves, as there would be for saying that the word " free " excluded them. The term "citizen" was objectionable in still another respect, viz., that it seems to have been previously, as it has been since, employed to define those who enjoyed the elective franchise. But it would be unreasonable that the constitution should base repre- sentation and taxation upon a distinction between those enjoying the elective franchise, and " all other persons" — it being left with the States to say who should enjoy that franchise. Yet, if the constitution had used the word " citizen " in connection with rep- resentation and taxation, it might have given some color to that idea. But to prove how inappropriate would have been the use of the word " citizens," in the representative clause — where a word of a is used in the constitution. He says, that " every citizen of a State is ipso fact* a citizen of the United States ;" and that " a person who is a naturalized citizen of the United States, by a like residence in any State in the Union, becomes ipso facto a citizen of that State." — (3 Com. on Const., p. 565-6.) But this saying that a citizen of a State is a citizen of the United States, and vice versa, gives us no information as to who is either a citizen of a State, or of the United States, other than those "naturalized" by act of Congress. These authorities show that the word citizen has had different meanings, and tliat its meaning was not, at the adoption of the constitution, and even now is not, well settled, and therefore that it was not a proper word to be used in a clause where certainty was so important. It is especially uncertain whether the word citizens would have included womem and children, as do the words " free persons." 22 254 THE tTNCONSTITUTIONALITY OF SLAVERV. precise and universally known meaning was required — the follow- ing facts are sufficient ; for we are to look at the word as people looked at it at that day, and not as we look at it now, when it has grown into use, and we have become familiar with it. Of all the State constitutions in existence in 1789, the word citizen was used in but thy-ee, to wit, those of Massachusetts, North Carolina, and Georgia ; and in those, only in the following man- ner : In the constitution of Massachusetts it was used some half dozen times, and in such connections as would indicate that it was used synonymously with the members of the state. In the constitution of North Carolina it was used but once, (Sec, 40,) and then the term "free citizen," was used ; thus indicating, either that they had more than one kind of citizens, or that the word citizen itself was so indefinite that its meaning would be liable to be unknown to the people, unless the word free were used to define it. In the constitution of Georgia it was used but once, (Art. 11,) and then in the same manner as in the constitution of North Car- olina, that is, with the word free prefixed to it for the purpose of definition. In the constitutions of the other ten States, (including the char- ters of Rhode Island and Connecticut,) the word citizen was not used at all. In the Articles of Confederation it was used but once, (Art. 4, Sec, 1,) and then the term was, as in the constitutions of Georgia and North Carolina, ''free citizens." So that there was but one constitution, (that of Massachusetts,) out of the whole fourteen then in the country, in which the word citizen could be said to be used with any definite meaning attached to it. In the three other cases in which it was used, its own indefi- niteness was confessed by the addition of the word free, to define it. A word so indefinite, and so little known to the people, as was the word citizen, was of course entirely unsuitable to be used in the representative clause for the purpose of describing the native and naturalized members of the state, men, women and children, as distinguished from persons not naturalized. For all these reasons the word citizens was objectiomble ; while in reference to slavery, it would seem to have been not one whit better than the words " free persons." Finally, the term " free persons" was much more appropriate^ "WHY THE WORDS ''FREE PERSONS'" WERE USED. 2r56 in itself, to designate the members of a free state^ of a republican government, than was the word citizen, which, of itself, implies no necessary relationship to a free state, any more than to an aristocracy. What objection was there, then, to the use of the words " free persons," in the constitution, for describing the members of the state ? None whatever, save this, viz., the liability of the words to be perverted from that meaning, if those who should administer the government should be corrupt enough to pervert them. This was the only objection. In every other view, the words chosen, (as well the words " free persons" as the words " all other per- sons,"*) were the best the English language afforded. They were the most accurate, the most simple, the most appropriate, to express the true idea on v.'hich a classification for purposes of rep- resentation and taxation should be founded. These words, then, being, in thcmsdoes, the best that could be used, could the North have reasonably objected to their use ? No. They could not say to the South, " We fear you do not understand the legal meaning which the word free will bear in this instru- ment.^' For everybody knew that such was the meaning of that word when used to describe men's relation to the state; and every- body was bound to know, and every lawyer and judge did actually know, that the word, if used in the manner it is in the constitution, could legally be construed only with reference to the rest of the instrument, and consequently could describe only one's relation to the government established by the instrument ; that it w^as only by violating all legal principles of interpretation that it could be made to describe any merely personal relation between man and man, illegal and criminal in itself, and nowhere else recognized by the instrument, but really denied by its whole purport. The legal meaning of the word, then, was undoubted ; and that was all the North could require. They could not require that other language should be introduced for the special purpose of preventing a fraudulent construction of this word. If it had been intended to form the constitution on the principle of making every- thing so plain that no fraudulent construction could possibly be put upon it, a new language must have been invented for the purpose ; the English is wholly inadequate. Had that object been attempted, the instrument must have been interminable in length, and vastly * See Chap. 20 and 22. 256 THE UNCONSTITUTIONALITY OF SLAVEKV. more confused in meaning than it now is. The only practicable way was for the instrument to declare its object in plain terms in the preamble, as it has done, viz., the establishment of justice, and the security of liberty, for " the people of the United States, and their posterity," and then to use the most concise, simple, and appropriate language in all the specific provisions of the instru- ment, trusting that it would all be honestly and legally interpreted, with reference to the ends declared to be in view. And this rule eould no more be departed from in reference to slavery, than in reference tO any other of the many crimes then prevalent. It would have been only a mean and useless insult to the honest 'portion of the South, (if there were any honest ones amongst theixi,) to have said to the whole South, (as we virtually should have done if any specific reference to slavery had been made,) " We fear you do not intend to live up to the legal meaning of this instrument. We see that you do not even enforce the State con- stitutions, which you yourselves establish ; and we have suspicions that you will be equally false to this. We will, therefore, insert a special provision in relation to slavery, which you cannot mis- construe, if you should desire to do so." The South would have answered, " Whatever may be your suspicions of us, you must treat with us, if at all, on the presump- tion that we are honorable men. It is an insult to us for you to propose to treat with us on any other ground. If you dare not trust us, why offer to unite with us on any terms 1 If you dare trust us, why ask the insertion of specifications implying your distrust? We certainly can agree to no instrument that contains any imputations upon our own integrity. We cannot reasonably be asked to defame ourselves." Such would have been the short and decisive answer of the South, as of any other community. And the answer would have been as just, as it would be decisive. All, then, that the North could ask of the South was to agree to an honest instrument, that should " be the supreme law of the land, anything in the constitution or laws of any State to the con- trary notwithstanding," and that all State, as well as national officers, executive, legislative, and judicial, should swear to sup- port it. This the South were ready to do, some probably in good faith, others in bad faith. But no compact could be formed except upon the presumption that all were acting in good faith, whatever reason they may have had to suspect the contrary on ■*♦ ALL OTHER PERSONS." 25^ xhe part of particular portions of the country, or with reference to particular portions of the instrument. And it would have been as foolish as useless to have suggested the idea of especial guards against fraudulent constructions in particular cases. It was a great poiiU gained for liberty, to get the consent of the whole country to a constitution that was honest in itself, however little prospect there might be that it would be speedily enforced in every particular. An instrument, honest in itself, saved the char- acter and conscience of the nation. It also gave into the hands of the true friends of liberty a weapon sure to be sufficient for their purposes, whenever they should acquire the numbers necessary to wield it to that end. CHAPTER XXII. "ALL OTHER PERSONS." It has been already shown, (in chapter 20,) that there was a sufficient, and even a necessary reason for the use of the words *' all other persons," in preference to the word " aliens." That reason was, that the word " alien " had a technical mean- ing, implying exclusion from office, exclusion from suffrage, and exclusion from the right to hold real estate ; whereas, the constitu- tion intended no exclusion whatever, except simply from the three offices of president, senator, and representative. The word " aliens," then, would have been a false word of itself, and would also have furnished ground for many mischievous and unfriendly implications and prejudices against the parties concerned. If, then, only this single class of persons had been intended, there was ample reason for the use of the words, " all other per- sons ;" while, on the slave hypothesis — that is, on the hypothesis that the words include only slaves, as they are generally supposed to do — no reason at all can be assigned for the use of these words, instead of the word slave, except such a reason as we are not at liberty to attribute to a law or constitution, if by any other reason- able construction it can be avoided. But whether the words " all other persons" include slaves, or unnaturalized persons, there was still another reason for the use of the words, " all other persons," in preference either to the 22* S68 THE O^'C0NSTlTDTI0NALlTY OF SLAVERY, word slates, or the word aliens.' That reason was, that the three fifths class was to include more than one kind of persons, whether that one kind were slaves or unnaturalized persons. " Indians not taxed'" were to be included in the same count, and, therefore, neither the word slaves, nor the word aliens, would have correctly described all the fjersons intended. So far as I am aware, all those who hold slavery to be constitu- tional, have believed that " Indians not taxed" were excluded both from the count of units, and the three fifths count ; that the words "all other persons" refer solely to slaves; and that those words were used solely to avoid the mention of slaves, of which the peo- ple were ashamed. They have beliered. these farJs just as firmly as they have believed that slavery was constitutional. I shall attempt to prove that " Indians not taxed," instead of being excluded from both counts, were included in the three fifth.s class, and, consequently, that the words " all other persons " were perfectly legitimate to express the two kinds of persons, of which that class were to be composed. If this proof be made, it will furnish another instance in which those who hold slavery to be constitutional, have made false law, by reason of their abandoning legal rules of interpretation, and construing everything in the light of their assumed insight into certain knavish intentions that are nowhere expressed. The clause reads as follows : — " Representatives and direct taxes shall be apportioned among the several States which may be included within this union, ac- cording to their respective numbers, which shall be determined by adding to the whole number of free persons, (including those bound to service for a term of years, and excluding Indians not taxed,) three fifths of all other persons." The question arising on this clause is, whether there be any class made by it, except the class of units, and the three fifths class ? Or whether there be three classes, to wit, the class of units, the three fifths class, and another class, " Indians not taxed," who are not to be counted at all? To state the question is nearly enough to answer it, for it is absurd to suppose there is any class of " the people of the United States" who are not to be counted at all. " Indians not taxed," (that is, not taxed directly, for all Indians are taxed indirectly,) are as much citizens of the United States as any other persons, " ALL OTHER PERSONS." 259 and they certainly are not to be unnecessarily excluded from the basis of representation and taxation. *= It would seem to be grammatically plain that the words " all other persons" include all except those counted as units. And it would probably have always been plain that such was their mean» ing, but for the desire of some persons to make them include slaves, and their belief that, in order to make them include slaves, they must make them include nobody but slaves. The words " including those bound to service for a term of years, and excluding Tndia?is not taxed,''' are parenthetical,! and might have been left out, without altering the sense of the main sentence, or diminishing the number of classes. They are thrown in, not to increase the number of classes, but simply to define who may, and who may 7iot, be included in \he first class, the class of units. This is proved, not only by the fact, thai the words are paren- thetical, (which would alone be ample proof,) but also by the fact that the two participles, ^' i7iclicding" and ''excluding," are con- nected with each other by the conjunction " and," and are both parsed in the same manner, both having relation to the " number" counted as units, a7id to that alone. The words, " excluding Indians not taxed,'''' exclude the Indians mentioned simply from the count of the preceding " number," the * In saying that Indians were " citizens of the United States," I of course mean those living under the actual jurisdiction of the United States, and not those who. though living within the chartered limits of the States, had never had the State or United States jurisdiction extended over them ; but by treaty, as well as of right, retained their independence, and were governed by their own usages and laws. It may be necessary for the information of some persons to state that the juris- dictions of the several States have not always been coextensive with their chartered limits. Thelalter were fixed by the charters granted by the crown, and had reference only to the boundaries of the respective colonies, as against each other. But the rights of the colonies, (and subsequently of the States,) within their chartered lim- its, were subject to the Indian right of soil, or occupancy, except so far as that right should be extinguished by the consent of the Indians. So long as the Indi- ans should choose to retain their right of soil, or occupancy, and their indepen- dence, and separate government, our governments had no jurisdiction over them, and they were not citizens of the United States. But when they surrendered their right of soil, or occupancy, abandoned their separate government, and came within our jurisdiction, or the States and the United States extended their jurisdiction over them, they became citizens of the United States, equally with any other per- sons. At the adoption of the constitution, there were several independent tribes within the chartered limits of the States. Others had surrendered their indepen- dent existence, and intermingled with the whites. t I have inclosed them in parenthesis to show the sense more distinctly. s^ THE UNCONSTITUTIONALITY OF SLAVERY. number to which the word " excluding" relates ; that is, the count of units. They do nothing more. They do not exclude them from any other count ; they do not create, or at all purport to cre- ate, out of them a distinct class. They do not at all imply that they are not to be counted at all. They do not, of themselves, indicate whether these Indians, that are excluded from the count of units, are, t everything which has preceded it upon that subject. Let every friend of the slave read the work without delay. I believe it is destined to give a new phase to our struggle." Richard Hildrelh, HIsq., says: — "No one can deny to the present work the merit of tjroat ability and great learning." " If anybody wishes to see this argument handled iti a miisicrly manner, with great clearness and plainness, and an array of constitutional learnin;;, 'vhich, 111 the hands of most lawyers, would have e.tpanded into at least throe royal octavos, we commend them to Mr. Spooner'§ modest pamphlet of one hundred and fifty-six page^.'' Elihu Hnrritt says :—" It evinces a depth of legal erudition, which would do honor to the first jurist of the age." The 'rirue American, (Cortland county, N. Y.,) says : — "It is an imperishable and tri-- umpliant work." " A law argument that would add to the fame of the most famed jurist, living or dead." The Bangor Gazette says: — "It is indeed a masterly argument." "No one, nnprejUT dicpd, who nas supposed that that instrument (the Constitution) contained guarantees of slavery, or who has had doubts upon the point, can rise from the perusal without feeliiis relieved from the siip)>osition tliat our great national charter is one of slavery and not of freeilom. And no lawyer can read it without admiring, besides its other great excellences, the clearness of its stvle, and its logical precision." The Hampshire Herald (Northampton) says : — " It is worthy the most gifted intellect ia the country." Tka Worcester County Gazette says: — "Mr. Spooncr, wc think, has clearly shown that MftlBvery) hai no constitutional foundation." ( Sec third page of Cover.) Continued from second page of Cover.) The Liberty Press, (Utica,) says : — " The author labors to show, and does show, that slavery in this country is unconstitutional, and unsustained by law, either state or federal." The Granite Freeman says : — " We wish every voter in the Union could hare the oppor- tunity to read this magnificent argument. We should hear no more, after that, of the * compromises of the Constitution ' as an argument to close the lips and palsy the hands of those who abhor slavery and labor for its removal." The Charter Oak says: — "Of its rare merit as a controversial argument, it is super- fluous to speak. It may, in fact, be regarded as unanswerable, and we are persuaded that its general circulation would give a new aspect to the Anti-Slavery cause, by exploding the popular, but mistaken notion, that slavery is somehow entrenched behind the Constitution." The Albany Patriot says : — " This effort of Mr. Spooner is a remarkable one in many respects. It is unrivalled in the simplicity, clearness and force of style with which it is executed. The argument is original, steel-ribbed, and triumphant. It bears down all op iMisition. Pettifogging, black-letter dullness and pedantry, special pleading and demagog- ism, all retire before it. If every lawyer in the country could have it put into his hands, and be-induced to study it, as he does nis brief, it would alone overthrow slavery. There te moral force enough in it for that purpose." The Chronotype calls it " One of the most magnificent constitutional arguments ever produced in any country." " It needs such a work as Mr. Spooner's on constitutional law to make the Constitution of the least value to us as a shield of rights." The Liberty Gazette (Burlington, Vt.) says: — "This work cannot be too highly praised, or too extensively circulated. Its reasoning is conclusive, and no one can read it without bein'g convinced that the Constitution, instead of being the friend and protector of slavery, is a purely Anti-Slavery document." The Indiana Freeman says: — "Every Abolitionist should have this admirable work, and keep it in constant circulation among his neighbors." The Worcester Mgis says : — " This work is one of the ablest, perhaps the ablest review of all the arguments, pro and con, upon the subject of slavery, that has yet emanated from the American press. No one who feels the least interest whatever in this great question, should fail to possess himself of a copy." ALSO FOR SALE AS ABOVE. THE TRIAL AND IMPRISONMENT OF JONATHAN WALKER, at Pensacola, Florida, for aiding slaves to escape from bondage ; with an Appendix, containing a sketch of his life. Price 26 cents. Mr. Sumner's Fourth of July Oration, on the TRUE GRANDEUR OF NATIONS. Price 25 cents. Mr. Parker's SERMON ON WAR, preached at the Melodeon on Sunday, June 7, 1846. 1 T cents. Lincoln's ANTI-SLAVERY MELODIES. 25 cents. NARRATIVE of* the sufferings of LEWIS and MILTON CLARKE, among the Slaveholders of Kentucky. 25 cents. THE WATER CURE FOR DEBILITATED YOUNG MEN ; addressed to Fathers as well as Sons. Translated from the German of Christian Ritter, M. D., with Notes critical and explanatory, by Dr. Alcott. 20 cents. DR. GRAHAM'S LECTURES TO YOUNG MEN ON CHASTITY. Intended also for the serious consideration of Parents and Guardians. 50 cents. MRS. CHILD'S LETTERS FROM NEW-TORK. 75 cents, do. do. HISTORY OF WOMEN, 2 vols. 75 cents All the works of Combe and Fowler, on PHRENOLOGY, PHYSIOLOGY, fitc. POVERTY. — Its Illegal Causes and Legal Cure, by Lysander Spooner. 25 cents. THE PHILOSOPHY OF MESMERISM, by J. B. Dods. 25 cents. THE COMPLETE PHONOGRAPHIC CLASS BOOK, containing a strictly in-- ductive exposition of Pitman's Phonography. 371^2 cents THE PH0N0GK4PHIC READER. 25 cents. THE PHILOSOPHY OF THE WATER CURE. 25 cents. DR. ALCOTT ON THE USE OF TOBACCO. 12 1-2 cents. DR. ALCOTT ON THE USE OF TEA AND COFFEE. 15 cents. POVERTY, ITS ILLEGAL CAUSES AND LEGAL CURE.-PART I. ' BY LYSANDER SPOOIVER. JUST PUBLISHED, and for sale bv BELA MARSH No as r«™K;ii n . EJr A liberal disconnt will be made to Booksellers and Agents, who buy to sell again. ' RECOMMENDATIONS.. " We have read this pamphlet careftilly, and are prepared to say we have seen no tw, ;^eh^Sn;L^^i£,z;!^r);i!^-- .M•'^.or"„f•^'hL^rl '^"/.^"J^y«'X'?^«' work, from the pen of Lysandpr Spooner. Esq ~5 ry There isTo''wn;''of 7hT^ demonstrates the ^constitutionality of American Ui- "Thi= „rr 1 ■ • . '"^, ^Se, of logical acumen more searching than Soooner " Jn^mv '^ "A? fir-t mIIT V° ''"*^ '° ^ re-examination of all former s/ste„'s of ^Ui^ rwTi;„ h I ''n'"' '"^ economical propositions strike us as sustainable -and if 3nTsvslem .'"'"V"" '"''''"i' "'/? P'".^""^ '^'^ '""P"^'^"' ^^^"l"''"'* i^^ the present pre- vailmg system." Every one should read it."— Bang-or Uazette ^ •n't'i^^t^^ PT^'V^ 108 pages -a very remarkable production." "Whether all th# , o hTTJ^^rf ^'- ^P°""r ^°"'^ ^^ ^^^'*^«d l-y the full adoption of his theory we d^ ov?a SarenT'^fcJ^H'h^H'f '^^''"•ly -."'"^'^ his endeavL to the notice o?klTw£ ^Patriot. ^ ''''"* "''"''" productions have met our eye in a long time!^^--ltoany andsn'in'nwM.'nV" '''?*;"'"*''i& ^^^ subject, would rear a pile of hypotheses heaven-high, and spin a web of soph.snris broad enough to cover it, but all to no p?lc^;ical use. To eluc^ n thorough- hL"^^'' '^' ^""T^ ''''\^r^ "^ f'°^''"y ^«1"i^^^^ 'he hair-splitting subUe y of "tro,r ,!;.,!ni ^"' "■■ ^°.''"' ^f '''""''y> """^*1 to\rofound legal knowledge, anS" h sn!u' f ' ""h^'^red intellect, and the very r^an, of ill mhcrs, to briach th. w hTp^MI. 7",M r°'''*««> 'h axthor of the above-named work. This book , as ImoaTi, r '.''"r "'"?."'"'' '"•^, ^2^: '^'he propositions are squared as exact and I monTm^,ff I.t 1 '^ "'^"'^T*""' ^'•^''* ' ""'^ thewholeworkl.il form an e nduru. Th s f?n srh^m. pTh'^ ''"'^ r'^'T'r u "" }^y^ ^"""^ ''^^«" propositions as the has, ■ v'rs V Fvp'vZn' i "'" ?[ '^^"'' ' '"?'•-■' 'y demonstrated an^ put hovo.id contro ^h.^far. nU^2 uT^/ Personally intcresu In the subject of which ihfs work treats, an4 this fact alone should secure for it an imme.. .e circulation. "-//amps/,irc Herald. Jr'J,,J"u^ "['* under notice fully sustains the reputation of the author as a deep ah bSu ' ^^ '"'""'' ^''"'^ reasoner, and benevolent political economist. "-Urfrr l*«lf n'i»,P'T*''u"^ '"^'''^ appeared t# us at first view untenable, arc made to appear a. iw .LfJ,, ;?■ .?'* v'ewsofthe causes of many deplorable evils in the existiMr«lai aire^w t^h '!^f fh '^^ P^«««?V|y''l'" "*■ J«gi*'la'i«". "re not easily put by. We do not nou t^on frrm^h» ^Tf^C^ ^^"•i '!•■«'""'"• ""' '"^ 'J" ^-y "'at we have derived instrur ^ Iner ll I'l^h"'?' "^ '"' "^"'"^ ^"^^ ""; ^'"' '^at no intelligent man ran give it a care- s' do hi vI.pH^ ^P^''*=';'"u^ '*•?' ^^'^ following the train of a strong, comprehensive, "ifich IkwoIiT^.k'*"'^ ""** ^^ IS coming in contact with principles and arguments ^k iiich It IS well that the community should kmv/."— Christian Aecman. T,«.!^no'JL°"''^ c'>mmend it to those who are interested in such speculations, as a clear, dis- J^ n«^f,«iw r I'l'"^"'''^ examination On paper, the conclusions follow beautifully and naturally (mm the premises."— CAm/inn Regitter. ' rt^Z^ aTnZi"!^^"! '"'"^ ^"^ V'''''t noble heart." " Povebtv," &c.. i, a well EeTh,hMi2aii''r^"'L'" ^"'*- f """ ""^ """■ ^^ ^^nnk him for its ti. 'v and yL",lr!:iWr^l(r, u ^ "^ natural justice, or the requirements of natural i. ■/, aoJ ^ '^V" «nat he may contmue his investigations until he has completed a series M^-n V*, ariantcd to the uantK of the times, such as no other man within our ^ .n„ «,o„'.h',';!,i ., "' J-reparmg " " We warmly recommend it to the perusal of all ear- , -Bt ana nxr^n^UtM."— Correspondence qf Voice oj Industry. \ 4- -N t. .% c*-. -^.. v-^^ ,\ .r. ^^ ^.. a'i^c •^^ v^ ■*r .^^ "<^. .Oo^ %' ':^, ,vK^'