He says: "The dissimilarity in the rules of naturalization," (i.e. in the rules established by the separate states, for under the confederation each state established its own rules of naturalization,) "has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of confederation, it is declared, 'that thefree inhabitantsof each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities offree citizensin the several states; andthe peopleof each state shall, in every other, enjoy all the privileges of trade and commerce,' &c. There is a confusion of language here, which is remarkable. Why the termsfree inhabitantsare used in one part of the article,free citizensin another, andpeoplein another; or what was meant by superadding to 'all privileges and immunities of free citizens,' 'all the privileges of trade and commerce,' cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination offree inhabitantsof a state, although not citizens of such state, are entitled, in every other state, to all the privileges offree citizensof the latter; that is, to greater privileges than they may be entitled to in their own state; so that it may be in the power of a particular state, or rather every state is laid under the necessity, not only to confer the rights of citizenship in other states upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term 'inhabitant' to be admitted, which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each state, of naturalizing aliens in every other state. In one state, residence for a short time confers all the rights of citizenship; in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity, and thus the law of one state be preposterously rendered paramount to the laws of another, within the jurisdiction of the other."We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several states, certain description of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent, not only with the rights of citizenship, but with the privileges of residence. What would have been the consequence, if such persons, by residence, or otherwise, had acquired the character of citizens under the laws of another state, and then asserted their rights as such, both to residence and citizenship, within the state proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted of too serious a nature, not to be provided against. The new constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the confederation on this head, by authorizing the general government to establish an uniform rule of naturalization throughout the United States."
He says: "The dissimilarity in the rules of naturalization," (i.e. in the rules established by the separate states, for under the confederation each state established its own rules of naturalization,) "has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of confederation, it is declared, 'that thefree inhabitantsof each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities offree citizensin the several states; andthe peopleof each state shall, in every other, enjoy all the privileges of trade and commerce,' &c. There is a confusion of language here, which is remarkable. Why the termsfree inhabitantsare used in one part of the article,free citizensin another, andpeoplein another; or what was meant by superadding to 'all privileges and immunities of free citizens,' 'all the privileges of trade and commerce,' cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination offree inhabitantsof a state, although not citizens of such state, are entitled, in every other state, to all the privileges offree citizensof the latter; that is, to greater privileges than they may be entitled to in their own state; so that it may be in the power of a particular state, or rather every state is laid under the necessity, not only to confer the rights of citizenship in other states upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term 'inhabitant' to be admitted, which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each state, of naturalizing aliens in every other state. In one state, residence for a short time confers all the rights of citizenship; in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity, and thus the law of one state be preposterously rendered paramount to the laws of another, within the jurisdiction of the other.
"We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several states, certain description of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent, not only with the rights of citizenship, but with the privileges of residence. What would have been the consequence, if such persons, by residence, or otherwise, had acquired the character of citizens under the laws of another state, and then asserted their rights as such, both to residence and citizenship, within the state proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted of too serious a nature, not to be provided against. The new constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the confederation on this head, by authorizing the general government to establish an uniform rule of naturalization throughout the United States."
Throughout this whole quotation Mr. Madison obviously takes it for granted that the word "free" is used in the articles of confederation, as the correlative of aliens.—And in this respect he no doubt correctly represents the meaning then given to the word by the people of the United States. And in the closing sentence of the quotation, he virtually asserts that such is the meaning of the word "free" in "the new constitution."
THE CONSTITUTION OF THE UNITED STATES.
We come now to the period commencing with the adoption of the constitution of the United States.
We have already seen that slavery had not been authorized or established by any of the fundamental constitutions or charters that had existed previous to this time; that it had always been a mere abuse sustained by the common consent of the strongest party, in defiance of the avowed constitutional principles of their governments. And the question now is, whether it was constitutionally established, authorized or sanctioned by the constitution of the United States?
It is perfectly clear, in the first place, that the constitution of the United States did not,of itself, create or establishslavery as anewinstitution; or even give any authority to the state governments to establish it as a new institution.—The greatest sticklers for slavery do not claim this. The most they claim is, that it recognized it as an institution already legally existing, under the authority of the state governments; and that it virtually guarantied to the states the right of continuing it in existence during their pleasure. And this is really the only question arising out of the constitution of the United States on this subject, viz: whether itdidthus recognize and sanction slavery as anexistinginstitution?
This question is, in reality, answered in the negative by what has already been shown; for if slavery had no constitutional existence, under the state constitutions, prior to the adoption of the constitution of the United States, then it is absolutely certain that the constitution of the United States didnotrecognize it as a constitutional institution; for it cannot, of course, be pretended that the United States constitution recognized, as constitutional, any state institution that did not constitutionally exist.
Even if the constitution of the United States hadintendedto recognize slavery, as a constitutionalstateinstitution, such intended recognition would have failed of effect, and been legally void, because slavery then had no constitutional existence to be recognized.
Suppose, for an illustration of this principle, that the constitution of the United States had, by implication, plainly taken it for granted that the state legislatures had power—derived from thestateconstitutions—to order arbitrarily that infant children, or that men without the charge of crime, should be maimed—deprived, for instance, of a hand, a foot, or an eye. This intended recognition, on the part of the constitution of the United States, of the legality of such a practice, would obviously have failed of all legal effect—would have been mere surplussage—if it should appear, from an examination of the state constitutions themselves, that they had really conferred no such power upon the legislatures. And this principle applies with the same force to laws that would arbitrarily make men or children slaves, as to laws that should arbitrarily order them to be maimed or murdered.
We might here safely rest the whole question—for no one, as has already been said, pretends that the constitution of the United States, by its own authority, created or authorized slavery as a new institution; but only that it intended to recognize it as one already established by authority of the state constitutions. This intended recognition—if there were any such—being founded on an error as to what the state constitutions really did authorize, necessarily falls to the ground, a defunct intention.
We make a stand, then, at this point, and insist that the main question—the only material question—is already decided against slavery; and that it is of no consequence what recognition or sanction the constitution of the United States may have intended to extend to it.
The constitution of the United States, at its adoption, certainly took effect upon, and made citizens ofall"the people of the United States," who werenot slavesunder the state constitutions. No one can deny a proposition so self-evident as that. If, then, theStateconstitutions, then existing, authorized no slavery at all, the constitution of the United States took effect upon, and made citizens ofall"the people of the United States," without discrimination. And ifall"the people of the United States" were made citizens of the United States, by the United States constitution, at its adoption, it was then forever too late for thestategovernments to reduce any of them to slavery. They were thenceforth citizens of a higher government, under a constitution that was "the supreme law of the land," "any thing in the constitution or laws of the states to the contrary notwithstanding." If the state governments could enslave citizens of the United States, the state constitutions, and not the constitution of the United States, would be the "supreme law of the land"—for no higher act of supremacy could be exercised by one government over another, than that of taking the citizens of the latter out of the protection of their government, and reducing them to slavery.
SECONDLY.
Although we might stop—we yet do not choose to stop—at the point last suggested. We will now go further, and attempt to show, specifically from its provisions, that the constitution of the United States, not only does not recognize or sanction slavery, as a legal institution, but that, on the contrary, it presumes all men to be free; that it positively denies the right of property in man; and that it,of itself, makes it impossible for slavery to have a legal existence in any of the United States.
In the first place—although the assertion is constantly made, and rarely denied, yet it is palpably a mere begging of the whole question in favor of slavery, to say that the constitutionintendedto sanction it; for if itintendedto sanction it, itdidthereby necessarily sanction it, (that is, if slavery then had any constitutional existence to be sanctioned.) Theintentionsof the constitution are the only means whereby it sanctions any thing. And its intentions necessarily sanction everything to which they apply, and which, in the nature of things, they are competent to sanction. To say, therefore, that the constitutionintendedto sanction slavery, is the same as to say that itdidsanction it; which is begging the whole question, and substituting mere assertion for proof.
Why, then, do not men say distinctly, that the constitutiondidsanction slavery, instead of saying that itintendedto sanction it? We are not accustomed to use the word "intention," when speaking of the other grants and sanctions of the constitution. We do not say, for example, that the constitutionintendedto authorize congress "to coin money," but that itdidauthorize them to coin it. Nor do we say that it intended to authorize them "to declare war;" but that it did authorize them to declare it. It would be silly and childish to say merely that itintendedto authorize them "to coin money," and "to declare war," when the language authorizing them to do so, is full, explicit and positive. Why, then, in the case of slavery, do men say merely that the constitutionintendedto sanction it, instead of saying distinctly, as we do in the other cases, that itdidsanction it? The reason is obvious. If they were to say unequivocally that itdidsanction it, they would lay themselves under the necessity of pointing to thewordsthat sanction it; and they are aware that thewords aloneof the constitution do not come up to that point. They, therefore, assert simply that the constitutionintendedto sanction it; and they then attempt to support the assertion by quoting certain words and phrases, which they say arecapableof covering, or rather of concealing such an intention; and then by the aid of exterior, circumstantial and historical evidence, they attempt to enforce upon the mind the conclusion that, as matter of fact, such was the intention of those whodraftedthe constitution; and thence they finally infer that such was the intention of the constitution itself.
The error and fraud of this whole procedure—and it is one purely of error and fraud—consists in this—that it artfully substitutes the supposed intentions of those who drafted the constitution, for the intentions of the constitution itself; and, secondly, it personifies the constitution as a crafty individual; capable of both open and secret intentions; capable of legally participating in, and giving effect to all the subtleties and double dealing of knavish men; and as actually intending to secure slavery, while openly professing to "secure and establish liberty and justice." It personifies the constitution as an individual capable of having private and criminal intentions, which it dare not distinctly avow, but only darkly hint at, by the use of words of an indefinite, uncertain and double meaning, whose application is to be gathered from external circumstances.
The falsehood of all these imaginings is apparent, the moment it is considered that the constitution is not aperson, of whom an "intention," not legally expressed, can be asserted; that it has none of the various and selfish passions and motives of action, which sometimes promptmento the practice of duplicity and disguise; that it is merely a written legal instrument; that, as such, it must have a fixed, and not a double meaning; that it is made up entirely of intelligible words; and that it has, andcanhave, no soul, no "intentions," no motives, no being, no personality, except what those words alone express or imply. Its "intentions" are nothing more nor less than the legal meaning of its words. Its intentions are no guide to its legal meaning—as the advocates of slavery all assume; but its legal meaning is the sole guide to its intentions. This distinction is all important to be observed; for if we can gratuitously assume the intentions of a legal instrument to be what we may wish them to be, and can then strain or pervert the ordinary meaning of its words, in order to make them utter those intentions, we can make any thing we choose of any legal instrument whatever. The legal meaning of the words of an instrument is, therefore, necessarily our only guide to its intentions.
In ascertaining the legal meaning of the words of the constitution, these rules of law, (the reasons of which will be more fully explained hereafter,) are vital to be borne constantly in mind, viz: 1st, that no intention in violation of natural justice and natural right, (like that to sanction slavery,) can be ascribed to the constitution, unless that intention be expressed in terms that arelegally competentto express such an intention; and, 2d, that no terms, except those that are plenary, express, explicit, distinct, unequivocal,and to which no other meaning can be given, are legally competentto authorize or sanction any thing contrary to natural right. The rule of law is materially different as to the terms necessary to legalize and sanction any thing contrary to natural right, and those necessary to legalize things that are consistent with natural right. The latter may be sanctioned by implication and inference; the former only by inevitable implication, or by language that is full, definite, express, explicit, unequivocal, and whoseunavoidableimport is to sanction thespecific wrongintended.
To assert, therefore, that the constitutionintendedto sanction slavery, is, in reality, equivalent to asserting that thenecessarymeaning, theunavoidableimport of thewords aloneof the constitution, come fully up to the point of a clear, definite, distinct, express, explicit, unequivocal, necessary and peremptory sanction of the specific thing,human slavery, property in man. If thenecessaryimport of itswords alonedo but fall an iota short of this point, the instrument gives, and, legally speaking, intended to give no legal sanction to slavery. Now, who can, in good faith, say that thewords aloneof the constitution come up to this point? No one, who knows any thing of law, and the meaning of words. Not even the name of the thing, alleged to be sanctioned, is given. The constitution itself contains no designation, description, or necessary admission of the existence of such a thing as slavery, servitude, or the right of property in man. We are obliged to go out of the instrument, and grope among the records of oppression, lawlessness and crime—records unmentioned, and of course unsanctioned by the constitution—tofindthe thing, to which it is said that the words of the constitution apply. And when we have found this thing, which the constitution dare not name, we find that the constitution has sanctioned it, (if at all,) only by enigmatical words, by unnecessary implication and inference, by inuendo and double entendre, and under a name that entirely fails of describing the thing. Every body must admit that the constitution itself contains no language, from whichaloneany court, that were either strangers to the prior existence of slavery, or that did not assume its prior existence to be legal, could legally decide that the constitution sanctioned it. And this is the true test for determining whether the constitution does, or does not, sanction slavery, viz: whether a court of law, strangers to the prior existence of slavery, or not assuming its prior existence to be legal—looking only at the naked language of the instrument—could, consistently with legal rules, judicially determine that it sanctioned slavery. Every lawyer, who at all deserves that name, knows that the claim for slavery could stand no such test. The fact is palpable, that the constitution contains no such legal sanction; that it is only by unnecessary implication and inference, by inuendo and double-entendre, by the aid of exterior evidence, the assumption of the prior legality of slavery, and the gratuitous imputation of criminal intentions that are not avowed in legal terms, that any sanction of slavery, (as a legal institution,) can be extorted from it.
But legal rules of interpretation entirely forbid and disallow all such implications, inferences, inuendos and double-entendre, all aid of exterior evidence, all assumptions of the prior legality of slavery, and all gratuitous imputations of criminal unexpressed intentions; and consequently compel us to come back to theletterof the instrument, and findtherea distinct, clear, necessary, peremptory sanction for slavery, or to surrender the point.
To the unprofessional reader these rules of interpretation will appear stringent, and perhaps unreasonable and unsound. For his benefit, therefore, the reasons on which they are founded, will be given. And he is requested to fix both the reasons and the rules fully in his mind, inasmuch as the whole legal meaning of the constitution, in regard to slavery, may perhaps be found to turn upon the construction which these rules fix upon its language.
But before giving the reasons of this rule, let us offer a few remarks in regard tolegalrules of interpretation in general. Many persons appear to have the idea that these rules have no foundation in reason, justice or necessity; that they are little else than whimsical and absurd conceits, arbitrarily adopted by the courts. No idea can be more erroneous than this. The rules are absolutely indispensable to the administration of the justice arising out of any class of legal instruments whatever—whether the instruments be simple contracts between man and man, or statutes enacted by legislatures, or fundamental compacts or constitutions of government agreed upon by the people at large. In regard to all these instruments, thelawfixes, and necessarily must fix their meaning; and for the obvious reason, that otherwise their meaning could not be fixed at all. The parties to the simplest contract may disagree, or pretend to disagree, as to its meaning, and of course as to their respective rights under it. The different members of a legislative body, who vote for a particular statute, may have different intentions in voting for it, and may therefore differ, or pretend to differ, as to its meaning. The people of a nation may establish a compact of government. The motives of one portion may be to establish liberty, equality and justice; and they may think, or pretend to think that the words used in the instrument convey that idea. The motives of another portion may be to establish the slavery or subordination of one part of the people, and the superiority or arbitrary power of the other part; and they may think, or pretend to think, that the language agreed upon by the whole authorizes such a government. In all these cases, unless there were some rules of law, applicable alike to all instruments, and competent to settle their meaning, their meaning could not be settled; and individuals would of necessity lose their rights under them.The law, therefore, fixes their meaning; and the rules by which it does so, are founded in the same justice, reason, necessity and truth, as are other legal principles, and are for that reason as inflexible as any other legal principles whatever. They are also simple, intelligible, natural, obvious. Every body are presumed to know them, as they are presumed to know any other legal principles. No one is allowed to plead ignorance of them, any more than of any other principle of law. All persons and people are presumed to have framed their contracts, statutes and constitutions with reference to them. And if they have not done so—if they have said black when they meant white, and one thing when they meant another, they must abide the consequences. The law will presume that they meant what they said. No one, in a court of justice, can claim any rights founded on a construction different from that which these rules would give to the contract, statute, or constitution, under which he claims. The judiciary cannot depart from these rules, for two reasons. First, because the rules embody in themselves principles of justice, reason and truth; and are therefore as necessarily law as any other principles of justice, reason and truth; and, secondly, because if they could lawfully depart from them in one case, they might in another, at their own caprice. Courts could thus at pleasure become despotic; all certainty as to the legal meaning of instruments would be destroyed; and the administration of justice, according to the true meaning of contracts, statutes and constitutions, would be rendered impossible.
What, then, are some of these rules of interpretation?
One of them, (as has been before stated,) is, that where words are susceptible of two meanings, one consistent, and the other inconsistent, with justice and natural right, that meaning, andonly thatmeaning, which is consistent with right, shall be attributed to them—unless other parts of the instrument overrule that interpretation.
Another rule, (if indeed it be not the same,) is, that no language, except that which is peremptory, and no implication, except one that is inevitable, shall be held to authorize or sanction any thing contrary to natural right.
Another rule is, that noextraneous or historical evidenceshall be admitted to fix upon a statute an unjust or immoral meaning, when the words themselves of the act are susceptible of an innocent one.
One of the reasons of these stringent and inflexible rules, doubtless is, that judges have always known that, in point of fact, natural justice was itself law, and that nothing inconsistent with it could be made law, even by the most explicit and peremptory language that legislatures could employ.—But judges have always, in this country and in England, been dependent upon the executive and the legislature for their appointments and salaries, and been amenable to the legislature by impeachment. And as the executive and legislature have always enacted more or less statutes, and had more or less purposes to accomplish, that were inconsistent with natural right, judges have seen that it would be impossible for them to retain their offices, and at the same time maintain the integrity of the law against the will of those in whose power they were. It is natural also that the executive should appoint, and that the legislature should approve the appointment of no one for the office of judge, whose integrity they should suppose would stand in the way of their purposes.—The consequence has been that all judges, (probably without exception,) though they have not dared deny, have yet in practice yielded the vital principle of law; and have succumbed to the arbitrary mandates of the other departments of the government, so far as to carry out their enactments, though inconsistent with natural right. But, as if sensible of the degradation and criminality of so doing, they have made a stand at the first point at which they could make it, without bringing themselves in a direct collision with those on whom they were dependent. And that point is, that they will administer, as law, no statute, that is contrary to natural right, unless its language be so explicit and peremptory, that there is no way of evading its authority, but by flatly denying the authority of those who enacted it. They (the court) will themselves add nothing to the language of the statute, to help out its supposed meaning. They will imply nothing, infer nothing, and assume nothing, except what is inevitable; they will not go out of the letter of the statute in search of anyhistoricalevidence as to the meaning of the legislature, to enable them to effectuate anyunjustintentions not fully expressed by the statute itself. Wherever a statute is supposed to have in view the accomplishment of any unjust end, they will apply the most stringent principles of construction to prevent that object's being effected. They will not go a hair's breadth beyond the literal or inevitable importof the wordsof the statute, even though they should be conscious, all the while, that the real intentions of the makers of it would be entirely defeated by their refusal. The rule, (as has been already stated,) is laid down by the supreme court of the United States in these words:
"Where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the legislative intention must be expressed withirresistible clearness, to induce a court of justice to suppose a design to effect such objects."—(United Statesvs.Fisher et al., 2 Cranch, 390.)[18]
Such has become the settled doctrine of courts. And although it does not come up to the true standard of law, yet it is good in itself, so far as it goes, and ought to be unflinchingly adhered to, not merely for its own sake, but also as a scaffolding, from which to erect that higher standard of law, to wit, that no language or authority whatever can legalize any thing inconsistent with natural justice.[19]
Another reason for the rules before given, against all constructions, implications and inferences—except inevitable ones—in favor of injustice, is, that but for them we should have no guaranty that our honest contracts, or honest laws would be honestly administered by the judiciary. It would be nearly or quite impossible for men, in framing their contracts or laws, to use language so as to exclude every possible implication in favor of wrong, if courts were allowed to resort to such implications.The law therefore excludes them; that is, the ends of justice—the security of men's rights under their honest contracts, and under honest legislative enactments—make it imperative upon courts of justice to ascribe an innocent and honest meaning to all language that will possibly bear an innocent and honest meaning. If courts of justice could depart from this rule for the purpose of upholding what was contrary to natural right, and could employ their ingenuity in spying out some implied or inferred authority, for sanctioning what was in itself dishonest or unjust, when such was not thenecessarymeaning of the language used, there could be no security whatever for the honest administration of honest laws, or the honest fulfilment of men's honest contracts. Nearly all language, on the meaning of which courts adjudicate, would be liable, at the caprice of the court, to be perverted from the furtherance of honest, to the support of dishonest purposes. Judges could construe statutes and contracts in favor of justice or injustice, as their own pleasure might dictate.
Another reason of the rules, is, that as governments have, and can have no legitimate objects or powers opposed to justice and natural right, it would be treason to all the legitimate purposes of government, for the judiciary to give any other than an honest and innocent meaning to any language, that would bear such a construction.
The same reasons that forbid the allowance of any unnecessary implication or inference in favor of a wrong, in the construction of a statute, forbids also the introduction of anyextraneous or historicalevidence to prove that the intentions of the legislature were to sanction or authorize a wrong.
The same rules of construction, that apply to statutes, apply also to all those private contracts between man and man,which courts actually enforce. But as it is both the right and the duty of courts to invalidate altogether such private contracts as are inconsistent with justice, they will admit evidence exterior to their words,if offered by a defendant for the purpose of invalidating them. At the same time, a plaintiff, or party that wishes to set up a contract, or that claims its fulfilment, will not be allowed to offer any evidence exterior to its words, to prove that the contract is contrary to justice—because, if his evidence were admitted, it would not make his unjust claim a legal one; but only invalidate it altogether. But as courts do not claim the right of invalidating statutes and constitutions, they will not admit evidence, exterior to their language, to give them such a meaning, that they ought to be invalidated.
I think no one—no lawyer, certainly—will now deny that it is a legal rule of interpretation—that must be applied to all statutes, and also to all private contractsthat are to be enforced—that an innocent meaning,and nothing beyond an innocent meaning, must be given to all language that will possibly bear such a meaning. All will probably admit that the rule, as laid down by the supreme court of the United States, is correct, to wit, that "where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the legislative intention must be expressed withirresistible clearness, to induce a court of justice to suppose a design to effect such objects."
But perhaps it will be said that these rules, which apply to all statutes, and to all private contracts that are to be enforced, do not apply to the constitution. And why do they not? No reason whatever can be given. A constitution is nothing but a contract, entered into by the mass of the people, instead of a few individuals. This contract of the people at large becomes a law unto the judiciary that administer it, just as private contracts, (so far as they are consistent with natural right,) are laws unto the tribunals that adjudicate upon them. All the essential principles that enter into the question of obligation, in the case of a private contract, or a legislative enactment, enter equally into the question of the obligation of a contract agreed to by the whole mass of the people. This is too self-evident to need illustration.
Besides, is it not as important to the safety and rights of all interested, that a constitution or compact of government, established by a whole people, should be so construed as to promote the ends of justice, as it is that a private contract or a legislative enactment should be thus construed? Is it not as necessary that some check should be imposed upon the judiciary to prevent them from perverting, at pleasure, the whole purpose and character of the government, as it is that they should be restrained from perverting the meaning of a private contract, or a legislative enactment? Obviously written compacts of government could not be upheld for a day, if it were understood by the mass of the people that the judiciary were at liberty to interpret them according to their own pleasure, instead of their being restrained by such rules as have now been laid down.
Let us now look at some of the provisions of the constitution, and see what crimes might be held to be authorized by them, if their meaning were not to be ascertained and restricted by such rules of interpretation as apply to all other legal instruments.
The second amendment to the constitution declares that "the right of the people to keep and bear arms shall not be infringed."
This right "to keep and bear arms," implies the right to use them—as much as a provision securing to the people the right to buy and keep food, would imply their right also to eat it. But this implied right to use arms, is only a right to use them in a manner consistent with natural rights—as, for example, in defence of life, liberty, chastity, &c. Here is an innocent and just meaning, of which the words are susceptible; and such is therefore theextentof their legal meaning. If courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right, they could imply a constitutional authority in the people to use arms, not merely for the just and innocent purposes of defence, but also for the criminal purposes of aggression—for purposes of murder, robbery, or any other acts of wrong to which arms are capable of being applied. The mereverbalimplication would as much authorize the people to use arms for unjust, as for just, purposes. But thelegalimplication gives only an authority for their innocent use. And why? Simply because justice is the end of all law—the legitimate end of all compacts of government. It is itself law; and there is no right or power among men to destroy its obligation.
Take another case. The constitution declares that "Congress shall have power toregulate commercewith foreign nations, and among the several states, and with the Indian tribes."
This power has been held by the supreme court to be an exclusive one in the general government—and one that cannot be controlled by the states. Yet it gives congress no constitutional authority to legalize any commerce inconsistent with natural justice between man and man; although themereverbal import of the words, if stretched to their utmost tension in favor of the wrong, would authorize congress to legalize a commerce in poisons and deadly weapons, for the express purpose of having them used in a manner inconsistent with natural right—as for the purposes of murder.
At natural law, and on principles of natural right, a person, who shouldsellto another a weapon or a poison, knowing that it would, or intending that it should be used for the purpose of murder, would be legally an accessary to the murder that should be committed with it. And if the grant to congress of a "power to regulate commerce," can be stretched beyond theinnocentmeaning of the words—beyond the power of regulating and authorizing a commerce that is consistent with natural justice—and be made to cover every thing, intrinsically criminal, that can be perpetrated under the name of commerce—then congress have the authority of the constitution for granting to individuals the liberty of bringing weapons and poisons from "foreign nations" into this, and from one state into another, and selling them openly for the express purposes of murder, without any liability to legal restraint or punishment.
Can any stronger cases than these be required to prove the necessity, the soundness, and the inflexibility of that rule of law, which requires the judiciary to ascribe an innocent meaning to all language that will possibly bear an innocent meaning? and to ascribeonlyan innocent meaning to language whose mere verbal import might be susceptible of both an innocentandcriminal meaning? If this rule of interpretation could be departed from, there is hardly a power granted to congress, that might notlawfullybe perverted into an authority for legalizing crimes of the highest grade.
In the light of these principles, then, let us examine those clauses of the constitution, that are relied on as recognizing and sanctioning slavery. They are but three in number.
The one most frequently quoted is the third clause of Art. 4, Sec. 2, in these words:
"No person, held to service or labor in one state, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due."
"No person, held to service or labor in one state, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due."
There are several reasons why this clause renders no sanction to slavery.
1. It must be construed, if possible, as sanctioning nothing contrary to natural right.
If there be any "service or labor" whatever, to which any "persons" whatever may be "held,"consistently with natural right, and which any person may, consistently with natural right, "claim" as his "due" of another, such "service or labor," andonlysuch, is recognized and sanctioned by this provision.
It needs no argument to determine whether the "service or labor," that is exacted of a slave, is such as can be "claimed,"consistently with natural right, as being "due" from him to his master. And if it cannot be, some other "service or labor" must, if possible, be found for this clause to apply to.
The proper definition of the word "service," in this case, obviously is, the labor of aservant. And we find, that at and before the adoption of the constitution, the persons recognized by the state laws as "servants," constituted a numerous class. The statute books of the states abounded with statutes in regard to "servants." Many seem to have been indented as servants by the public authorities, on account of their being supposed incompetent, by reason of youth and poverty, to provide for themselves. Many were doubtless indented as apprentices by their parents and guardians, as now. The English laws recognized a class of servants—and many persons were brought here from England, in that character, and retained that character afterward. Many indented or contracted themselves as servants for the payment of their passage money to this country. In these various ways, the class of persons, recognized by the statute books of the states as "servants," was very numerous; and formed a prominent subject of legislation. Indeed, no other evidence of their number is necessary than the single fact, that "persons bound to service for a term of years," were specially noticed by the constitution of the United States, (Art. 1, Sec. 2,) which requires that they be counted as units in making up the basis of representation. There is therefore not the slightest apology for pretending that there was not a sufficient class for the words "service or labor" to refer to, without supposing the existence of slaves.[20]
2. "Held to service or labor," is no legal description of slavery. Slavery is property in man. It is not necessarily attended with either "service or labor." A very considerable portion of the slaves are either too young, too old, too sick, or too refractory to render "service or labor." As a matter of fact, slaves, who are able to labor, may, in general, be compelled by their masters to do so. Yet labor is not an essential or necessary condition of slavery. The essence of slavery consists in a person's being owned as property—without any reference to the circumstances of his being compelled to labor, or of his being permitted to live in idleness, or of his being too young, or too old, or too sick to labor.
If "service or labor" were either a test, or a necessary attendant of slavery, that test would of itself abolish slavery; because all slaves, before they can render "service or labor," must have passed through the period of infancy, when they could render neither service nor labor, and when, therefore, according to this test, they were free. And if they were free in infancy, they could not be subsequently enslaved.
3. "Held to service or labor in one state,under the laws thereof."
The "laws" take no note of the fact whether a slave "labors," or not. They recognize no obligation, on his part, to labor. They will enforce no "claim" of a master, upon his slave, for "service or labor." If the slave refuse to labor, the law will not interfere to compel him. The law simply recognizes the master'sright of propertyin the slave—just as it recognizes his right of property in a horse. Having done that, it leaves the master to compel the slave, if he please, and if he can—as he would compel a horse—to labor. If the master do not please, or be not able, to compel the slave to labor, the law takes no more cognizance of the case than it does of the conduct of a refractory horse. In short, it recognizes no obligation, on the part of the slave, to labor, if he can avoid doing so. It recognizes no "claim," on the part of the master, upon his slave, for "services or labor," as "due" from the latter to the former.
4. Neither "service" nor "labor" is necessarily slavery; and not being necessarily slavery, the words cannot, in this case, be strained beyond their necessary meaning, to make them sanction a wrong. The law will not allow words to be strained a hair's breadth beyond theirnecessarymeaning, to make them authorize a wrong.The stretching, if there be any, must always be towards the right.The words "service or labor" do not necessarily, nor in their common acceptation, so much as suggest the idea of slavery—that is, they do not suggest the idea of the laborer or servant being the property of the person for whom he labors. An indented apprentice serves and labors for another. He is "held" to do so, under a contract, and for a consideration, that are recognized, by the laws, as legitimate, and consistent with natural right. Yet he is not owned as property. A condemned criminal is "held to labor"—yet he is not owned as property. The law allows no such straining of the meaning of words towards the wrong, as that which would convert the words "service or labor" (of men) intoproperty in man—and thus make a man, who serves or labors for another, the property of that other.
5. "No person held to service or labor, in one state, under thelawsthereof."
The "laws," here mentioned, and impliedly sanctioned, are, of course, onlyconstitutionallaws—laws, that are consistent, both with the constitution of the state, and the constitution of the United States. None others are "laws," correctly speaking, however they may attempt to "hold persons to service or labor," or however they may have the forms of laws on the statute books.
This word "laws," therefore, being a material word, leaves the whole question just where it found it—for it certainly does not,of itself—nor indeed does any other part of the clause—say that acts of a legislature, declaring one man to be the property of another, is a "law" within the meaning of the constitution. As far as the word "laws" says any thing on the subject, it says that such acts arenotlaws—for such acts are clearly inconsistent with natural law—and it yet remains to be shown that they are consistent with any constitution whatever, state or national.
The burden of proof, then, still rests upon the advocates of slavery, to show that an act of a state legislature, declaring one man to be the property of another, is a "law," within the meaning of this clause. To assert simply that it is, without proving it to be so, is a mere begging of the question—for that is the very point in dispute.
The question, therefore, of theconstitutionalityof the slave acts must first be determined, before it can be decided that they are "laws" within the meaning of the constitution. That is, they must be shown to be consistent with the constitution, before they can be said to be sanctioned as "laws" by the constitution. Can any proposition be plainer than this? And yet the reverse must be assumed, in this case, by the advocates of slavery.
The simple fact, that an act purports to "hold persons to service or labor," clearly cannot,of itself, make the act constitutional. If it could, any act, purporting to hold "persons to service or labor," would necessarily be constitutional, without any regard to the "persons" so held, or the conditions on which they were held. It would be constitutional,solely because it purported to hold persons to service or labor. If this were the true doctrine, any of us, without respect of persons, might be held to service or labor, at the pleasure of the legislature. And then, if "service or labor" mean slavery, it would follow that any of us, without discrimination, might be made slaves. And thus the result would be, that the acts of a legislature would be constitutional,solely because they made slaves of the people. Certainly this would be a new test of the constitutionality of laws.
All the arguments in favor of slavery, that have heretofore been drawn from this clause of the constitution, have been founded on the assumption, that if an act of a legislature did but purport to "hold persons to service or labor"—no matter how, on what conditions, or for what cause—that fact alone was sufficient to make the act constitutional. The entire sum of the argument, in favor of slavery, is but this, viz. the constitution recognizes the constitutionality of "laws" that "hold persons to service or labor,"—slave acts "hold persons to service or labor,"—therefore slave acts must be constitutional. This profound syllogism is the great pillar of slavery in this country. It has, (if we are to judge by results,) withstood the scrutiny of all the legal acumen of this nation for fifty years and more. If it should continue to withstand it for as many years as it has already done, it will then be time to propound the following, to wit: The state constitutions recognize the right of men to acquire property; theft, robbery, and murder are among the modes in which property may be acquired; therefore theft, robbery, and murder are recognized by these constitutions as lawful.
No doubt the clause contemplates that there may be constitutional "laws," under which persons may be "held to service or labor." But it does not follow, therefore, that every act, that purports to hold "persons to service or labor," is constitutional.
We are obliged, then, to determine whether a statute be constitutional, before we can determine whether the "service or labor" required by it, is sanctioned by the constitution as being lawfully required. The simple fact, that the statute would "hold persons to service or labor," is,of itself, no evidence, either for or against its constitutionality. Whether it be or be not constitutional, may depend upon a variety of contingencies—such as the kind of service or labor required, and the conditions on which it requires it. Any service or labor, that is inconsistent with the duties which the constitution requires of the people, is of course not sanctioned by this clause of the constitution as being lawfully required. Neither, of course, is the requirement of service or labor,on any conditions, that are inconsistent with any rights that are secured to the people by the constitution, sanctioned by the constitution as lawful. Slave laws, then, can obviously be held to be sanctioned by this clause of the constitution, only by gratuitously assuming, 1st, that the constitution neither confers any rights, nor imposes any duties, upon the people of the United States, inconsistent with their being made slaves; and, 2d, that it sanctions the general principle of holding "persons to service or labor" arbitrarily, without contract, without compensation, and without the charge of crime. If this be really the kind of constitution that has been in force since 1789, it is somewhat wonderful that there are so few slaves in the country. On the other hand, if the constitution be not of this kind, it is equally wonderful that we have any slaves at all—for the instrument offers no ground for saying that a colored man may be made a slave, and a white man not.
Again. Slave acts were not "laws" according to any state constitution that was in existence at the time the constitution of the United States was adopted. And if they were not "laws" at that time, they have not been made so since.
6. The constitution itself, (Art. 1. Sec. 2,) in fixing the basis of representation, has plainlydeniedthat those described in Art. 4, as "persons held to service or labor," are slaves,—for it declares that "persons bound to service for a term of years" shall be "included" in the "number offreepersons." There is nolegaldifference between being "bound to service," and being "held to service or labor." The addition, in the one instance, of the words, "for a term of years," does not alter the case, for it does not appear that, in the other, they are "held to service or labor" beyond a fixed term—and, in the absence of evidence from the constitution itself, the presumption must be that they are not—because such a presumption makes it unnecessary to go out of the constitution to find the persons intended, and it is also more consistent with the prevalent municipal, and with natural law.
And it makes no difference to this result, whether the word "free," in the first article, be used in the political sense common at that day, or as the correlative of slavery. In either case, the persons described as "free," could not be made slaves.
7. The words "service or labor" cannot be made to include slavery, unless by reversing the legal principle, that the greater includes the less, and holding that the less includes the greater; that the innocent includes the criminal; that a sanction of what is right, includes a sanction of what is wrong.
Another clause relied on as a recognition of the constitutionality of slavery, is the following, (Art. 1. Sec. 2.):