{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_31844/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_31844","id":"gutenberg_31844","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/31844","summary":null,"tags":["Category: History - American","Category: Law & Criminology","Category: Philosophy & Ethics","Slavery -- United States"],"text":"Produced by Curtis Weyant, Graeme Mackreth and the Online\nDistributed Proofreading Team at https://www.pgdp.net (This\nbook was produced from scanned images of public domain\nmaterial from the Google Print project.)\n\n\n\n\n\n\n\nTHE\n\nUNCONSTITUTIONALITY\n\nOF\n\nSLAVERY.\n\nBY LYSANDER SPOONER.\n\nBOSTON:\n\nPUBLISHED BY BELA MARSH,\n\nNO. 25 CORNHILL.\n\n1845.\n\n\nENTERED according to Act of Congress, in the year 1845, by LYSANDER\nSPOONER, in the Clerk's Office of the District Court of Massachusetts.\n\n\nDOW & JACKSON'S ANTI-SLAVERY PRESS.\n\n\n\n\nCONTENTS.\n\n\nCHAPTER I.--WHAT IS LAW?                              PAGE 5\n\n   \"   II.--WRITTEN CONSTITUTIONS,                        18\n\n   \"  III.--THE COLONIAL CHARTERS,                        24\n\n   \"   IV.--COLONIAL STATUTES,                            36\n\n   \"    V.--THE DECLARATION OF INDEPENDENCE,              42\n\n   \"   VI.--THE STATE CONSTITUTIONS OF 1789.\n              (MEANING OF THE WORD \"FREE,\")               46\n\n   \"  VII.--THE ARTICLES OF CONFEDERATION,                61\n\n   \" VIII.--THE CONSTITUTION OF THE UNITED STATES,        65\n\n   \"   IX.--THE INTENTIONS OF THE CONVENTION,            135\n\n   \"    X.--THE PRACTICE OF THE GOVERNMENT,              145\n\n   \"   XI.--THE UNDERSTANDING OF THE PEOPLE,             147\n\n   \"  XII.--THE STATE CONSTITUTIONS OF 1845,             150\n\n   \" XIII.--THE CHILDREN OF SLAVES ARE BORN FREE,        153\n\n\n\n\nTHE\nUNCONSTITUTIONALITY OF SLAVERY.\n\n\n\n\nCHAPTER I.\n\nWHAT IS LAW?\n\n\nBefore examining the language of the Constitution, in regard to Slavery,\nlet us obtain a view of the principles, by virtue of which _law_ arises\nout of those constitutions and compacts, by which people agree to\nestablish government.\n\nTo do this it is necessary to define the term _law_. Popular opinions\nare very loose and indefinite, both as to the true definition of law,\nand also as to the principle, by virtue of which law results from the\ncompacts or contracts of mankind with each other.\n\nWhat then is LAW? That law, I mean, which, and which only, judicial\ntribunals are morally bound, under all circumstances, to declare and\nsustain?\n\nIn answering this question, I shall attempt to show that law is an\nintelligible principle of right, necessarily resulting from the nature\nof man; and not an arbitrary rule, that can be established by mere will,\nnumbers or power.\n\nTo determine whether this proposition be correct, we must look at the\n_general_ signification of the term _law_.\n\nThe true and general meaning of it, is that _natural_, permanent,\nunalterable principle, which governs any particular thing or class of\nthings. The principle is strictly a _natural_ one; and the term applies\nto every _natural_ principle, whether mental, moral or physical. Thus\nwe speak of the laws of mind; meaning thereby those _natural_, universal\nand necessary principles, according to which mind acts, or by which it\nis governed. We speak too of the moral law; which is merely an universal\nprinciple of moral obligation, that arises out of the nature of men, and\ntheir relations to each other, and to other things--and is consequently\nas unalterable as the nature of men. And it is solely because it is\nunalterable in its nature, and universal in its application, that it is\ndenominated law. If it were changeable, partial or arbitrary, it would\nbe no law. Thus we speak of physical laws; of the laws, for instance,\nthat govern the solar system; of the laws of motion, the laws of\ngravitation, the laws of light, &c., &c.--Also the laws that govern the\nvegetable and animal kingdoms, in all their various departments: among\nwhich laws may be named, for example, the one that like produces like.\nUnless the operation of this principle were uniform, universal and\nnecessary, it would be no law.\n\nLaw, then, applied to any object or thing whatever, signifies a\n_natural_, unalterable, universal principle, governing such object or\nthing. Any rule, not existing in the nature of things, or that is not\npermanent, universal and inflexible in its application, is no law,\naccording to any correct definition of the term law.\n\nWhat, then, is that _natural_, universal, impartial and inflexible\nprinciple, which, under all circumstances, _necessarily_ fixes,\ndetermines, defines and governs the civil rights of men? Those rights of\nperson, property, &c., which one human being has, as against other human\nbeings?\n\nI shall define it to be simply _the rule, principle, obligation or\nrequirement of natural justice_.\n\nThis rule, principle, obligation or requirement of natural justice, has\nits origin in the natural rights of individuals, results necessarily\nfrom them, keeps them ever in view as its end and purpose, secures their\nenjoyment, and forbids their violation. It also secures all those\nacquisitions of property, privilege and claim, which men have a\n_natural_ right to make by labor and contract.\n\nSuch is the true meaning of the term law, as applied to the civil rights\nof men. And I doubt if any other definition of law can be given, that\nwill prove correct in every, or necessarily in any possible case. The\nvery idea of law originates in men's natural rights. There is no other\nstandard, than natural rights, by which civil law can be measured. Law\nhas always been the name of that rule or principle of justice, which\nprotects those rights. Thus we speak of _natural law_. Natural law, in\nfact, constitutes the great body of the law that is _professedly_\nadministered by judicial tribunals: and it always necessarily must\nbe--for it is impossible to anticipate a thousandth part of the cases\nthat arise, so as to enact a special law for them. Wherever the cases\nhave not been thus anticipated, the natural law prevails. We thus\npolitically and judicially _recognize_ the principle of law as\noriginating in the nature and rights of men. By recognizing it as\noriginating in the nature of men, we recognize it as a principle, that\nis necessarily as immutable, and as indestructible as the nature of man.\nWe also, in the same way, recognize the impartiality and universality of\nits application.\n\nIf, then, law be a natural principle--one necessarily resulting from the\nvery nature of man, and capable of being destroyed or changed only by\ndestroying or changing the nature of man--it necessarily follows that it\nmust be of higher and more inflexible obligation than any other rule of\nconduct, which the arbitrary will of any man, or combination of men, may\nattempt to establish. Certainly no rule can be of such high, universal\nand inflexible obligation, as that, which, if observed, secures the\nrights, the safety and liberty of all.\n\nNatural law, then, is the paramount law. And, being the paramount law,\nit is necessarily the only law: for, being applicable to every possible\ncase that can arise touching the rights of men, any other principle or\nrule, that should arbitrarily be applied to those rights, would\nnecessarily conflict with it. And, as a merely arbitrary, partial and\ntemporary rule must, of necessity, be of less obligation than a natural,\npermanent, equal and universal one, the arbitrary one becomes, in\nreality, of no obligation at all, when the two come in collision.\nConsequently there is, and can be, correctly speaking, _no law but\nnatural law_. There is no other principle or rule, applicable to the\nrights of men, that is obligatory in comparison with this, in any case\nwhatever. And this natural law is no other than that rule of natural\njustice, which results either directly from men's natural rights, or\nfrom such acquisitions as they have a _natural_ right to make, or from\nsuch contracts as they have a _natural_ right to enter into.\n\nNatural law recognizes the validity of all contracts which men have a\n_natural_ right to make, and which justice requires to be fulfilled:\nsuch, for example, as contracts that render equivalent for equivalent,\nand are at the same time consistent with morality, the natural rights of\nmen, and those rights of property, privilege, &c., which men have a\nnatural right to acquire by labor and contract.\n\nNatural law, therefore, inasmuch as it recognizes the natural right of\nmen to enter into obligatory contracts, permits the formation of\ngovernment, founded on contract, as all our governments profess to be.\nBut in order that the contract of government may be valid and lawful, it\nmust purport to authorize nothing inconsistent with natural justice, and\nmen's natural rights. It cannot lawfully authorize government to destroy\nor take from men their natural rights: for natural rights are\ninalienable, and can no more be surrendered to government--which is but\nan association of individuals--than to a single individual. They are a\nnecessary attribute of man's nature; and he can no more part with\nthem--to government or any body else--than with his nature itself. But\nthe contract of government may lawfully authorize the adoption of\nmeans--not inconsistent with natural justice--for the better protection\nof men's natural rights. And this is the legitimate and true object of\ngovernment. And rules and statutes, not inconsistent with natural\njustice and men's natural rights, if enacted by such government, are\nbinding, on the ground of contract, upon those who are parties to the\ncontract, which creates the government, and authorizes it to pass rules\nand statutes to carry out its objects.[1]\n\nBut natural law tries the contract of government, and declares it lawful\nor unlawful, obligatory or invalid, by the same rules by which it tries\nall other contracts between man and man. A contract for the\nestablishment of government, being nothing but a voluntary contract\nbetween individuals for their mutual benefit, differs, in nothing that\nis essential to its validity, from any other contract between man and\nman, or between nation and nation. If two individuals enter into a\ncontract to commit trespass, theft, robbery or murder upon a third, the\ncontract is unlawful and void, simply because it is a contract to\nviolate natural justice, or men's natural rights. If two nations enter\ninto a treaty, that they will unite in plundering, enslaving or\ndestroying a third, the treaty is unlawful, void, and of no obligation,\nsimply because it is contrary to justice and men's natural rights. On\nthe same principle, if the majority, however large, of the people of a\ncountry, enter into a contract of government, called a constitution, by\nwhich they agree to aid, abet or accomplish any kind of injustice, or to\ndestroy or invade the natural rights of any person or persons\nwhatsoever, whether such persons be parties to the compact or not, this\ncontract of government is unlawful and void--and for the same reason\nthat a treaty between two nations for a similar purpose, or a contract\nof the same nature between two individuals, is unlawful and void. Such a\ncontract of government has no moral sanction. It confers no rightful\nauthority upon those appointed to administer it. It confers no legal or\nmoral rights, and imposes no legal or moral obligation upon the people\nwho are parties to it. The only duties, which any one can owe to it, or\nto the government established under color of its authority, are\ndisobedience, resistance, destruction.\n\nJudicial tribunals, sitting under the authority of this unlawful\ncontract or constitution, are bound, equally with other men, to declare\nit, and all unjust enactments passed by the government in pursuance of\nit, unlawful and void. These judicial tribunals cannot, by accepting\noffice under a government, rid themselves of that paramount obligation,\nthat all men are under, to declare, if they declare any thing, that\njustice is law; that government can have no lawful powers, except those\nwith which it has been invested by lawful contract; and that an unlawful\ncontract for the establishment of government, is as unlawful and void as\nany other contract to do injustice.\n\nNo oaths, which judicial or other officers may take, to carry out and\nsupport an unlawful contract or constitution of government, are of any\nmoral obligation. It is immoral to take such oaths, and it is criminal\nto fulfil them. They are, both in morals and law, like the oaths which\nindividual pirates, thieves and bandits give to their confederates, as\nan assurance of their fidelity to the purposes for which they are\nassociated. No man has any moral right to assume such oaths; they impose\nno obligation upon those who do assume them; they afford no moral\njustification for official acts, in themselves unjust, done in pursuance\nof them.\n\nIf these doctrines are correct, then those contracts of government,\nstate and national, which we call constitutions, are void, and unlawful,\nso far as they purport to authorize, (if any of them do authorize,) any\nthing in violation of natural justice, or the natural rights of any man\nor class of men whatsoever. And all judicial tribunals are bound, by the\nhighest obligations that can rest upon them, to declare that these\ncontracts, in all such particulars, (if any such there be,) are void,\nand not law. And all agents, legislative, executive, judicial and\npopular, who voluntarily lend their aid to the execution of any of the\nunlawful purposes of the government, are as much personally guilty,\naccording to all the moral and legal principles, by which crime, in its\nessential character, is measured, as though they performed the same acts\nindependently, and of their own volition.\n\nSuch is the true character and definition of law. Yet, instead of being\nallowed to signify, as it in reality does, that natural, universal and\ninflexible principle, which has its origin in the nature of man, keeps\npace every where with the rights of man, as their shield and protector,\nbinds alike governments and men, weighs by the same standard the acts of\ncommunities and individuals, and is paramount in its obligation to any\nother requirement which can be imposed upon men--instead, I say, of the\nterm law being allowed to signify, as it really does, this immutable and\noverruling principle of natural justice it has come to be applied to\nmere arbitrary rules of conduct, prescribed by individuals, or\ncombinations of individuals, self-styled governments, who have no other\ntitle to the prerogative of establishing such rules, than is given them\nby the possession or command of sufficient physical power to coerce\nsubmission to them.\n\nThe injustice of these rules, however palpable and atrocious it may be,\nhas not deterred their authors from dignifying them with the name of\n_law_. And, what is much more to be deplored, such has been the\nsuperstition of the people, and such their blind veneration for physical\npower, that this injustice has not opened their eyes to the distinction\nbetween law and force, between the sacred requirements of natural\njustice, and the criminal exactions of unrestrained selfishness and\npower. They have thus not only suffered the name of law to be stolen,\nand applied to crime as a cloak to conceal its true nature, but they\nhave rendered homage and obedience to crime, under the name of law,\nuntil the very name of law, instead of signifying, in their minds, an\nimmutable principle of right, has come to signify little more than an\narbitrary command of power, without reference to its justice or its\ninjustice, its innocence or its criminality. And now, commands the most\ncriminal, if christened with the name of law, obtain nearly as ready an\nobedience, oftentimes a more ready obedience, than law and justice\nitself. This superstition, on the part of the people, which has thus\nallowed force and crime to usurp the name and occupy the throne of\njustice and law, is hardly paralleled in its grossness, even by that\nsuperstition, which, in darker ages of the world, has allowed falsehood,\nabsurdity and cruelty to usurp the name and the throne of religion.\n\nBut I am aware that other definitions of law, widely different from that\nI have given, have been attempted--definitions too, which practically\nobtain, to a great extent, in our judicial tribunals, and in all the\ndepartments of government. But these other definitions are nevertheless,\nall, in themselves, uncertain, indefinite, mutable; and therefore\nincapable of being standards, by a reference to which the question of\nlaw, or no law, can be determined. Law, as defined by them, is\ncapricious, arbitrary, unstable; is based upon no fixed principle;\nresults from no established fact; is susceptible of only a limited,\npartial and arbitrary application; possesses no intrinsic authority;\ndoes not, in itself, recognize any moral principle; does not necessarily\nconfer upon, or even acknowledge in individuals, any moral or civil\nrights; or impose upon them any moral obligation.\n\nFor example. One of these definitions--one that probably embraces the\nessence of all the rest--is this:\n\nThat \"law is a rule of civil conduct, prescribed by the supreme power of\na state, commanding what its subjects are to do, and prohibiting what\nthey are to forbear.\" _Noah Webster._\n\nIn this definition, hardly any thing, that is essential to the idea of\nlaw, is made certain. Let us see. It says that,\n\n\"Law is a rule of civil conduct, prescribed by the _supreme power_ of a\nstate.\"\n\nWhat is \"the supreme power,\" that is here spoken of, as the fountain of\nlaw? Is it the supreme physical power? Or the largest concentration of\nphysical power, whether it exist in one man, or in a combination of men?\nSuch is undoubtedly its meaning. And if such be its meaning, then the\nlaw is uncertain; for it is oftentimes uncertain where, or in what man,\nor body of men, in a state, the greatest amount of physical power is\nconcentrated. Whenever a state should be divided into factions, no one\nhaving the supremacy of all the rest, law would not merely be\ninefficient, but the very principle of law itself would be actually\nextinguished. And men would have no \"rule of civil conduct.\" This result\nalone is sufficient to condemn this definition.\n\nAgain. If physical power be the fountain of law, then law and force are\nsynonymous terms. Or, perhaps, rather, law would be the result of a\ncombination of will and force; of will, united with a physical power\nsufficient to compel obedience to it, but not necessarily having any\nmoral character whatever.\n\nAre we prepared to admit the principle, that there is no real\ndistinction between law and force? If not, we must reject this\ndefinition.\n\nIt is true that law may, in many cases, depend upon force as the means\nof its practical efficiency. But are law and force therefore identical\nin their essence?\n\nAccording to this definition, too, a command to do injustice, is as much\nlaw, as a command to do justice. All that is necessary, according to\nthis definition, to make the command a law, is that it issue from a will\nthat is supported by physical force sufficient to coerce obedience.\n\nAgain. If mere will and power are sufficient, of themselves, to\nestablish law--legitimate law--such law as judicial tribunals are\nmorally bound, or even have a moral right to enforce--then it follows\nthat wherever will and power are united, and continue united until they\nare successful in the accomplishment of any particular object, to which\nthey are directed, they constitute the only legitimate law of that case,\nand judicial tribunals can take cognizance of no other.\n\nAnd it makes no difference, on this principle, whether this combination\nof will and power be found in a single individual, or in a community of\nan hundred millions of individuals.--The numbers concerned do not alter\nthe rule--otherwise law would be the result of numbers, instead of\n\"supreme power.\" It is therefore sufficient to comply with this\ndefinition, that the power be equal to the accomplishment of the object.\nAnd the will and power of one man are therefore as competent to make the\nlaw relative to any acts which he is able to execute, as the will and\npower of millions of men are to make the law relative to any acts which\nthey are able to accomplish.\n\nOn this principle, then--that mere will and power are competent to\nestablish the law that is to govern an act, without reference to the\njustice or injustice of the act itself, the will and power of any single\nindividual to commit theft, would be sufficient to make theft lawful, as\nlawful as is any other act of injustice, which the will and power of\ncommunities, or large bodies of men, may be united to accomplish. And\njudicial tribunals are as much bound to recognize, as lawful, any act of\ninjustice or crime, which the will and power of a single individual may\nhave succeeded in accomplishing, as they are to recognize as lawful any\nact of injustice, which large and organized bodies of men, self-styled\ngovernments, may accomplish.\n\nBut, perhaps it will be said that the soundness of this definition\ndepends upon the use of the word \"state\"--and that it therefore makes a\ndistinction between \"the supreme power of _a state_,\" over a particular\nact, and the power of an individual over the same act.\n\nBut this addition of the word \"state,\" in reality leaves the definition\njust where it would have been without it. For what is \"a state?\" It is\njust what, and only what, the will and power of individuals may\narbitrarily establish.\n\nThere is nothing _fixed_ in the nature, character or boundaries of \"a\nstate.\" Will and power may alter them at pleasure. The will and power of\nNicholas, and that will and power, which he has concentrated around, or\nrather within himself, establishes all Russia, both in Europe and Asia,\nas \"a state.\" By the same rule, the will and power of the owner of an\nacre of ground, may establish that acre as a state, and make his will\nand power, for the time being, supreme and lawful within it.\n\nThe will and power, also, that established \"a state\" yesterday, may be\novercome to-day by an adverse will and power, that shall abolish that\nstate, and incorporate it into another, over which this latter will and\npower shall to-day be \"supreme.\" And this latter will and power may also\nto-morrow be overcome by still another will and power mightier than\nthey.\n\n\"A state,\" then, is nothing fixed, permanent or certain in its nature.\nIt is simply the boundaries, within which any single combination or\nconcentration of will and power, are efficient, or irresistible, _for\nthe time being_.\n\nThis is the only true definition that can be given of \"a state.\" It is\nmerely an arbitrary name given to the territorial limits of power. And\nif such be its true character, then it would follow, that the\nboundaries, though but two feet square, within which the will and power\nof a single individual are, _for the time being_, supreme, or\nirresistible, are, for all _legal_ purposes, \"a state\"--and his will and\npower constitute, for the time being, the law within those limits; and\nhis acts are, therefore, for the time being, as necessarily lawful,\nwithout respect to their intrinsic justice or injustice, as are the acts\nof larger bodies of men, within those limits where their will and power\nare supreme and irresistible.\n\nIf, then, law really be, what this definition would make it, merely \"a\nrule of civil conduct prescribed by the supreme power of a state\"--it\nwould follow, as a necessary consequence, that law is synonymous merely\nwith will and force, wherever they are combined and in successful\noperation, for the present moment.\n\nUnder this definition, law offers no permanent guaranty for the safety,\nliberty, rights or happiness of any one. It licenses all possible crime,\nviolence and wrong, both by governments and individuals. The definition\nwas obviously invented by, and is suited merely to gloss over the\npurposes of, arbitrary power. We are therefore compelled to reject it;\nand to seek another, that shall make law less capricious, less\nuncertain, less arbitrary, more just, more safe to the rights of all,\nmore permanent. And if we seek another, where shall we find it, unless\nwe adopt the one first given, viz. _that law is the rule, principle,\nobligation or requirement of natural justice_?\n\nAdopt this definition, and law becomes simple, intelligible, scientific;\nalways consistent with itself; always harmonizing with morals, reason\nand truth. Reject this definition, and law is no longer a science: but a\nchaos of crude, conflicting and arbitrary edicts, unknown perchance to\neither morals, justice, reason or truth, and fleeting and capricious as\nthe impulses of will, interest and power.\n\nIf, then, law really be nothing other than the rule, principle,\nobligation or requirement of natural justice, it follows that government\ncan have no powers except such as individuals may _rightfully_ delegate\nto it: that no law, inconsistent with men's natural rights, can arise\nout of any contract or compact of government: _that constitutional law,\nunder any form of government, consists only of those principles of the\nwritten constitution, that are consistent with natural law, and man's\nnatural rights_; and that any other principles, that may be expressed by\nthe letter of any constitution, are void and not law, and all judicial\ntribunals are bound to declare them so.\n\nThough this doctrine may make sad havoc with constitutions and statute\nbooks, it is nevertheless law. It fixes and determines the real rights\nof all men; and its demands are as imperious as any that can exist under\nthe name of law.\n\nIt is possible, perhaps, that this doctrine would spare enough of our\nexisting constitutions, to save our governments from the necessity of a\nnew organization. But whatever else it might spare, one thing it would\nnot spare. It would spare no vestige of that system of human slavery,\nwhich now claims to exist by authority of law.[2]\n\n[Footnote 1: It is obvious that legislation can have, in this country,\nno higher or other authority, than that which results from natural law,\nand the obligation of contracts: for our constitutions are but\ncontracts, and the legislation they authorize can of course have no\nother or higher authority than the constitutions themselves. The stream\ncannot rise higher than the fountain. The idea, therefore, of any\ninherent authority or sovereignty in our governments, as governments, or\nof any _inherent_ right in the majority to restrain individuals, by\narbitrary enactments, from the exercise of any of their natural rights,\nis as sheer an imposture as the idea of the divine right of kings to\nreign, or any other of the doctrines on which arbitrary governments have\nbeen founded. And the idea of any necessary or inherent authority in\nlegislation, as such, is, of course, equally an imposture. If\nlegislation be consistent with natural justice, and the natural or\nintrinsic obligation of the contract of government, it is obligatory: if\nnot, not.]\n\n[Footnote 2: The mass of men are so much accustomed to regard law as an\narbitrary command of those who administer political power, that the idea\nof its being a _natural_, fixed, and immutable principle, may perhaps\nwant some other support than that of the reasoning already given, to\ncommend it to their adoption. I therefore give them the following\ncorroborations from sources of the highest authority.\n\n\"Jurisprudence is the science of what is just and unjust.\"--_Justinian._\n\n\"The primary and principal objects of the law are rights and\nwrongs.\"--_Blackstone._\n\n\"Justice is the constant and perpetual disposition to render to every\nman his due.\"--_Justinian._\n\n\"The precepts of the law are to live honestly; to hurt no one; to give\nto every one his due.\"--_Justinian & Blackstone._\n\n\"LAW. The rule and bond of men's actions; or it is a rule for the well\ngoverning of civil society, to give to every man that which doth belong\nto him.\"--_Jacob's Law Dictionary._\n\n\"Laws are arbitrary or positive, and natural; the last of which are\nessentially just and good, and bind every where, and in all places where\nthey are observed.* * * * Those which are natural laws, are from God;\nbut those which are arbitrary, are properly human and positive\ninstitutions.\"--_Selden on Fortescue, C. 17, also Jacob's Law\nDictionary._\n\n\"The law of nature is that which God, at man's creation, infused into\nhim, for his preservation and direction; and this is an eternal law, and\nmay not be changed.\"--_2 Shep. Abr. 356, also Jac. Law Dict._\n\n\"All laws derive their force from the law of nature; and those which do\nnot, are accounted as no laws.\"--_Fortescue. Jac. Law Dict._\n\n\"No law will make a construction to do wrong; and there are some things\nwhich the law favors, and some it dislikes; it favoreth those things\nthat come from the order of nature.\"--_1 Inst. 183, 197.--Jac. Law\nDict._\n\n\"Of law no less can be acknowledged, than that her seat is the bosom of\nGod, her voice the harmony of the world. All things in heaven and earth\ndo her homage; the least as feeling her care, and the greatest as not\nexempted from her power.\"--_Hooker._\n\n\"This law of nature being coeval with mankind, and dictated by God\nhimself, is of course superior in obligation to any other. It is binding\nover all the globe, in all countries, and at all times: no human laws\nare of any validity, if contrary to this; and such of them as are valid,\nderive all their force, and all their authority, mediately or\nimmediately, from this original.\"--_Blackstone, Vol. 1, p. 41._\n\nMr. Christian, one of Blackstone's editors, in a note to the above\npassage, says:\n\n\"Lord Chief Justice Hobart has also advanced, that even an act of\nParliament made against natural justice, as to make a man judge in his\nown cause, is void in itself, for _jura naturae sunt immutabilia_, and\nthey are _leges legum_\"--(the laws of nature are immutable--they are the\nlaws of laws.)--_Hob. 87._\n\nMr. Christian then adds:\n\n\"With deference to these high authorities, (Blackstone and Hobart,) I\nshould conceive that in no case whatever can a judge oppose his own\nopinion and authority to the clear will and declaration of the\nlegislature. His province is to interpret and obey the mandates of the\nsupreme power of the state. And if an act of Parliament, if we could\nsuppose such a case, should, like the edict of Herod, command all the\nchildren under a certain age to be slain, the judge ought to resign his\noffice rather than be auxiliary to its execution; but it could only be\ndeclared void by the same legislative power by which it was ordained. If\nthe judicial power were competent to decide that an act of parliament\nwas void because it was contrary to natural justice, upon an appeal to\nthe House of Lords this inconsistency would be the consequence, that as\njudges they must declare void, what as legislators they had enacted\nshould be valid.\n\n\"The learned judge himself (Blackstone) declares in p. 91, if the\nParliament will positively enact a thing to be done which is\nunreasonable, I know of no power in the ordinary forms of the\nconstitution, that is vested with authority to control it.\"\n\nIt will be seen from this note of Mr. Christian, that he concurs in the\nopinion that an enactment contrary to natural justice is _intrinsically_\nvoid, and not law; and that the principal, if not the only difficulty,\nwhich he sees in carrying out that doctrine, is one that is peculiar to\nthe British constitution, and does not exist in the United States. That\ndifficulty is, the \"inconsistency\" there would be, if the House of\nLords, (which is the highest law court in England, and at the same time\none branch of the legislature,) were to declare, in their capacity as\njudges, that an act was void, which, as legislators, they had declared\nshould be valid. And this is probably the reason why Blackstone admitted\nthat he knew of no power in the ordinary forms of the (British)\nconstitution, that was vested with authority to control an act of\nparliament that was unreasonable, (against natural justice.) But in the\nUnited States, where the judicial and legislative powers are vested in\ndifferent bodies, and where they are so vested for the very purpose of\nhaving the former act as a check upon the latter, no such inconsistency\nwould occur.\n\nThe constitutions that have been established in the United States, and\nthe discussions had on the formation of them, all attest the importance\nwhich our ancestors attached to a separation of the judicial, from the\nexecutive and legislative departments of the government. And yet the\nbenefits, which they had promised to liberty and justice from this\nseparation, have in slight only, if any degree, been realized.--Although\nthe legislation of the country generally has exhibited little less than\nan entire recklessness both of natural justice and constitutional\nauthority, the records of the judiciary nevertheless furnish hardly an\ninstance where an act of a legislature has, for either of these reasons,\nbeen declared void by its co-ordinate judicial department. There have\nbeen cases, few and far between, in which the United State's courts have\ndeclared acts of state legislatures unconstitutional. But the history of\nthe co-ordinate departments of the same governments has been, that the\njudicial sanction followed the legislative act with nearly the same\nunerring certainty, that the shadow follows the substance. Judicial\ndecisions have consequently had the same effects in restraining the\nactions of legislatures, that shadows have in restraining the motions of\nbodies.\n\nWhy this uniform concurrence of the judiciary with the legislature? It\nis because the separation between them is nominal, not real. The\njudiciary receive their offices and salaries at the hands of the\nexecutive and the legislature, and are amenable only to the legislature\nfor their official character. They are made entirely independent of the\npeople at large, (whose highest interests are liberty and justice,) and\nentirely dependent upon those who have too many interests inconsistent\nwith liberty and justice. Could a real and entire separation of the\njudiciary from the other departments take place, we might then hope that\ntheir decisions would, in some measure, restrain the usurpations of the\nlegislature, and promote progress in the science of law and of\ngovernment.\n\nWhether any of our present judges would, (as Mr. Christian suggests they\nought,) \"resign their offices\" rather than be auxiliary to the execution\nof an act of legislation, that, like the edict of Herod, should require\nall the children under a certain age to be slain, we cannot certainly\nknow. But this we do know--that our judges have hitherto manifested no\nintention of resigning their offices to avoid declaring it to be law,\nthat \"children of two years old and under,\" may be wrested forever from\nthat parental protection which is their birthright, and subjected for\nlife to outrages which all civilized men must regard as worse than\ndeath.\n\nTo proceed with our authorities:--\n\n\"Those human laws that annex a punishment to murder, do not at all\nincrease its moral guilt or superadd any fresh obligation in the forum\nof conscience to abstain from its perpetration. Nay, if any human law\nshould allow or enjoin us to commit it, we are bound to transgress that\nhuman law, or else we must offend both the natural and the\ndivine.\"--_Blackstone, Vol. 1, p. 42, 43._\n\n\"The law of nations depends entirely upon the rules of _natural law_, or\nupon mutual compacts, treaties, leagues and agreements between these\nseveral communities; in the construction also of which compacts, we have\nno other rule to resort to, but the law of nature: (that) being the only\none to which all the communities are equally subject.\"--_Blackstone,\nVol. 1, p. 43._\n\n\"Those rights then which God and nature have established, and are\ntherefore called natural rights, such as are life and liberty, need not\nthe aid of human laws to be more effectually invested in every man than\nthey are; neither do they receive any additional strength when declared\nby the municipal laws to be inviolable. On the contrary, no human\nlegislature has power to abridge or destroy them, unless the owner shall\nhimself commit some act that amounts to a forfeiture.\"--_Blackstone,\nVol. 1, p. 54._\n\n\"By the absolute rights of individuals, we mean those which are so in\ntheir primary and strictest sense; such as would belong to their persons\nmerely in a state of nature, and which every man is entitled to enjoy,\nwhether out of society, or in it.\"--_Blackstone, Vol. 1, p. 123._\n\n\"The principal aim of society (government) is to protect individuals in\nthe enjoyment of those absolute rights, which were vested in them by the\nimmutable laws of nature; but which could not be preserved in peace\nwithout that mutual assistance and intercourse, which is gained by the\ninstitution of friendly and social communities. Hence it follows, that\nthe first and primary end of human laws is to maintain and regulate\nthese absolute rights of individuals. Such rights as are social and\nrelative result from, and are posterior to, the formation of states and\nsocieties; so that to maintain and regulate these, is clearly a\nsubsequent consideration. And therefore the principal view of human laws\nis, or ought always to be, to explain, protect, and enforce such rights\nas are absolute; which, in themselves, are few and simple: and then such\nrights as are relative, which, arising from a variety of connexions,\nwill be far more numerous and more complicated. These will take up a\ngreater space in any code of laws, and hence may appear to be more\nattended to, though in reality they are not, than the rights of the\nformer kind.\"--_Blackstone, Vol. 1, p. 124._\n\n\"The absolute rights of man, considered as a free agent, endowed with\ndiscernment to know good from evil, and with power of choosing those\nmeasures which appear to him most desirable, are usually summed up in\none general appellation, and denominated the natural liberty of mankind.\nThis natural liberty consists properly in a power of acting as one\nthinks fit, without any restraint or control, unless by the law of\nnature, being a right inherent in us by birth, and one of the gifts of\nGod to man at his creation, when he endowed him with the faculty of free\nwill.\"--_Blackstone, Vol. 1, p. 125._\n\n\"Moral or natural liberty, (in the words of Burlamaqui, ch. 3, s. 15,)\nis the right, which nature gives to all mankind of disposing of their\npersons and property after the manner they judge most consonant to their\nhappiness, on condition of their acting within the limits of the law of\nnature, and that they do not any way abuse it to the prejudice of any\nother men.\"--_Christian's note, Blackstone, Vol. 1, p. 126._\n\nAll the foregoing definitions of law, rights and natural liberty,\nalthough some of them are expressed in somewhat vague and indefinite\nterms, nevertheless recognize the primary idea, that law is a fixed\nprinciple, resulting from men's natural rights; and that therefore the\nacknowledgment and security of the natural rights of individuals\nconstitute the whole basis of law as a science, and a _sine qua non_ of\ngovernment as a legitimate institution.\n\nAnd yet writers generally, who acknowledge the true theory of government\nand law, will nevertheless, when discussing matters of legislation,\nviolate continually the fundamental principles with which they set out.\nOn some pretext of promoting a great public good, the violation of\nindividual rights will be justified in particular cases; and the\nguardian principle being once broken down, nothing can then stay the\nirruption of the whole horde of pretexts for doing injustice; and\ngovernment and legislation thenceforth become contests between factions\nfor power and plunder, instead of instruments for the preservation of\nliberty and justice equally to all.\n\nThe current doctrine that private rights must yield to the public good,\namounts, in reality, to nothing more nor less than this, that an\nindividual or the minority must consent to have less than their rights,\nin order that other individuals, or the majority, may have more than\ntheir rights. On this principle no honest government could ever be\nformed by voluntary contract, (as our governments purport to be;)\nbecause no man of common sense would consent to be one of the plundered\nminority, and no honest man could wish to be one of the plundering\nmajority.\n\nThe apology, that is constantly put forth for the injustice of\ngovernment, viz., that a man must consent to give up some of his rights,\nin order to have his other rights protected--involves a palpable\nabsurdity, both legally and politically. It is an absurdity in law,\nbecause it says that the law must be violated in some cases, in order\nthat it may be maintained in others. It is an absurdity politically,\nbecause a man's giving up one of his rights has no tendency whatever to\npromote the protection of others. On the contrary, it only renders him\nless capable of defending himself, and consequently makes the task of\nhis protection more burdensome to the government. At the same time it\nplaces him in the situation of one who has conceded a part of his\nrights, and thus cheapened the character of all his rights in the eyes\nof those of whom he asks assistance. There would be as much reason in\nsaying that a man must consent to have one of his hands tied behind him,\nin order that his friends might protect the rest of his body against an\nenemy, as there is in saying that a man must give up some of his rights\nin order that government may protect the remainder. Let a man have the\nuse of both his hands, and the enjoyment of all his rights, and he will\nthen be more competent to his own defence; his rights will be more\nrespected by those who might otherwise be disposed to invade them; he\nwill want less the assistance and protection of others; and we shall\nneed much less government than we now have.\n\nIf individuals choose to form an association or government, for the\nmutual protection of each other's rights, why bargain for the protection\nof an _indefinite_ portion of them, at the price of giving to the\nassociation itself liberty to violate the equally indefinite remainder?\nBy such a contract, a man really surrenders every thing, and secures\nnothing. Such a contract of government would be a burlesque on the\nwisdom of asses. Such a contract never was, nor ever will be\n_voluntarily_ formed. Yet all our governments act on that principle; and\nso far as they act upon it, they are as essentially usurping and\ntyrannical as any governments can be. If a man pay his proportion of the\naggregate cost of protecting all the rights of each of the members of\nthe association, he thereby acquires a claim upon the association to\nhave his own rights protected without diminution.\n\nThe ultimate truth on this subject is, that man has an inalienable right\nto so much personal liberty as he will use without invading the rights\nof others. This liberty is an inherent right of his nature and his\nfaculties. It is an inherent right of his nature and his faculties to\ndevelope themselves freely, and without restraint from other natures and\nfaculties, that have no superior prerogatives to his own. And this right\nhas only this limit, viz., that he do not carry the exercise of his own\nliberty so far as to restrain or infringe the equally free developement\nof the natures and faculties of others. The dividing line between the\nequal liberties of each must never be transgressed by either. This\nprinciple is the foundation and essence of law and of civil right. And\nlegitimate government is formed by the voluntary association of\nindividuals, for the mutual protection of each of them in the enjoyment\nof this natural liberty, against those who may be disposed to invade it.\nEach individual being secured in the enjoyment of this liberty, must\nthen take the responsibility of his own happiness and well-being. If his\nnecessities require more than his faculties will supply, he must depend\nupon the voluntary kindness of his fellow-men; unless he be reduced to\nthat extremity where the necessity of self-preservation over-rides all\nabstract rules of conduct, and makes a law for the occasion--an\nextremity, that would probably never occur but for some antecedent\ninjustice.]\n\n\n\n\nCHAPTER II.\n\nWRITTEN CONSTITUTIONS.\n\n\nTaking it for granted that it has now been shown that no rule of civil\nconduct, that is inconsistent with the natural rights of men, can be\nrightfully established by government, or consequently be made obligatory\nas law, either upon the people, or upon judicial tribunals--let us now\nproceed to test the legality of slavery by those written constitutions\nof government, which judicial tribunals actually recognize as\nauthoritative.\n\nIn making this examination, however, I shall not insist upon the\nprinciple of the preceding chapter, that there can be no law contrary to\nnatural right; but shall admit, for the sake of the argument, that there\nmay be such laws. I shall only claim that in the interpretation of all\nstatutes and constitutions, the ordinary legal rules of interpretation\nbe observed. The most important of these rules, and the one to which it\nwill be necessary constantly to refer, is the one that all language\nmust be construed strictly in favor of natural right.--The rule is laid\ndown by the Supreme Court of the United States in these words, to wit:\n\n\"Where rights are infringed, where fundamental principles are\noverthrown, where the general system of the law is departed from, the\nlegislative intention must be expressed with _irresistible clearness_,\nto induce a court of justice to suppose a design to effect such\nobjects.\"[3]\n\nIt will probably appear from this examination of the written\nconstitutions, that slavery neither has, _nor ever had_ any\nconstitutional existence in this country; that it has always been a mere\nabuse, sustained, in the first instance, merely by the common consent of\nthe strongest party, without any law on the subject, and, in the second\nplace, by a few unconstitutional enactments, made in defiance of the\nplainest provisions of their fundamental law.\n\nFor the more convenient consideration of this point, we will divide the\nconstitutional history of the country into three periods; the first\nembracing the time from the first settlement of the country up to the\nDeclaration of Independence; the second embracing the time from the\nDeclaration of Independence to the adoption of the Constitution of the\nUnited States in 1789; and the third embracing all the time since the\nadoption of the Constitution of the United States.\n\nLet us now consider the first period; that is, from the settlement of\nthe country, to the Declaration of Independence.\n\n[Footnote 3: United States _vs._ Fisher, 2 Cranch, 390.]\n\n\n\n\nCHAPTER III.\n\nTHE COLONIAL CHARTERS.\n\n\nWhen our ancestors came to this country, they brought with them the\ncommon law of England, including the writ of _habeas corpus_, (the\nessential principle of which, as will hereafter be shown, is to deny the\nright of property in man,) the trial by jury, and the other great\nprinciples of liberty, which prevailed in England, and which have made\nit impossible that her soil should be trod by the foot of a slave.\n\nThese principles were incorporated into all the charters, granted to the\ncolonies, (if all those charters were like those I have examined, and I\nhave examined nearly all of them.)--The general provisions of those\ncharters, as will be seen from the extracts given in the note, were,\nthat the laws of the colonies should \"not be repugnant or contrary, but\nas nearly as circumstances would allow, conformable to the laws,\nstatutes and rights of our kingdom of England.\"[4]\n\nThose charters were the fundamental constitutions of the colonies, with\nsome immaterial exceptions, up to the time of the revolution; as much so\nas our national and state constitutions are now the fundamental laws of\nour governments.\n\nThe authority of these charters, during their continuance, and the\ngeneral authority of the common law, prior to the revolution, have been\nrecognized by the Supreme Court of the United States.[5]\n\nNo one of all these charters that I have examined--and I have examined\nnearly all of them--contained the least intimation that slavery had, or\ncould have, any legal existence under them. Slavery was therefore as\nmuch unconstitutional in the colonies, as it was in England.\n\nIt was decided by the Court of King's Bench in England--Lord Mansfield\nbeing Chief Justice--before our revolution, and while the English\nCharters were the fundamental law of the colonies--that the principles\nof English liberty were so plainly incompatible with slavery, that even\nif a slaveholder, from another part of the world, brought his slave into\nEngland--though only for a temporary purpose, and with no intention of\nremaining--he nevertheless thereby gave the slave his liberty.\n\nPrevious to this decision, the privilege of bringing slaves into\nEngland, for temporary purposes, and of carrying them away, had long\nbeen tolerated.\n\nThis decision was given in the year 1772.[6] And for aught I see, it was\nequally obligatory in this country as in England, and must have freed\nevery slave in this country, if the question had then been raised here.\nBut the slave knew not his rights, and had no one to raise the question\nfor him.\n\nThe fact, that slavery was _tolerated_ in the colonies, is no evidence\nof its legality; for slavery was tolerated, to a certain extent, in\nEngland, (as we have already seen,) for many years previous to the\ndecision just cited--that is, the holders of slaves from abroad were\nallowed to bring their slaves into England, hold them during their stay\nthere, and carry them away when they went. But the toleration of this\npractice did not make it lawful, notwithstanding all customs, not\npalpably and grossly contrary to the principles of English liberty, have\ngreat weight, in England, in establishing law.\n\nThe fact, that England _tolerated_, (i.e. did not punish criminally,)\nthe African _slave-trade_ at that time, could not legally establish\nslavery in the colonies, _any more than it did in England_--especially\nin defiance of the positive requirements of the charters, that the\ncolonial legislation should be consonant to reason, and not repugnant to\nthe laws of England.\n\nBesides, the mere toleration of the slave _trade_ could not make slavery\nitself--_the right of property in man_--lawful any where; not even on\nboard the slave ship. Toleration of a wrong is not law. And especially\nthe toleration of a wrong, (i.e. the bare omission to punish it\ncriminally,) does not legalize one's claim to property obtained by such\nwrong. Even if a wrong can be legalized at all, so as to enable one to\nacquire rights of property by such wrong, it can be done only by an\nexplicit and positive provision.\n\nThe English statutes, on the subject of the slave trade, (so far as I\nhave seen,) never attempted to legalize the right of property in man,\n_in any of the thirteen North American colonies_. It is doubtful whether\nthey ever attempted to do it any where else. It is also doubtful whether\nParliament had the power--or perhaps rather it is certain that they had\nnot the power--to legalize it any where, if they had attempted to do\nso.[7] And the cautious and curious phraseology of their statutes on\nthe subject, indicates plainly that they themselves either doubted their\npower to legalize it, or feared to exercise it. They have therefore\nchosen to connive at slavery, to insinuate, intimate, and imply their\napprobation of it, rather than risk an affirmative enactment declaring\nthat one man may be the property of another. But Lord Mansfield said, in\nSomerset's case, that slavery was \"_so odious that nothing can be\nsuffered to support it, but positive law_.\"--No such positive law (I\npresume) was ever passed by parliament--certainly not with reference to\nany of these thirteen colonies.\n\nThe statute of 1788, (which I have not seen,) in regard to the slave\n_trade_, may perhaps have relieved those engaged in it, in certain\ncases, from their liability to be punished criminally for the act. But\nthere is a great difference between a statute, that should merely screen\na person from punishment for a crime, and one that should legalize his\nright to property acquired by the crime. Besides, this act was passed\nafter the separation between America and England, and therefore could\nhave done nothing towards legalizing slavery in the United States, even\nif it had legalized it in the English dominions.\n\nThe statutes of 1750, (23, George 2d, Ch. 31,) may have possibly\nauthorized, by implication, (so far as parliament could thus authorize,)\nthe colonial governments, (if governments they could be called,) _on\nthat coast of Africa_, to allow slavery under certain circumstances,\n_and within the \"settlements\" on that coast_. But, if it did, it was at\nmost a grant of a merely local authority. It gave no authority to carry\nslaves from the African coast. But even if it had purported distinctly\nto authorize the slave trade from Africa to America, and to legalize the\nright of property in the particular slaves thereafter brought from\nAfrica to America, it would nevertheless have done nothing towards\nlegalizing the right of property in the slaves that had been brought to,\nand born in, the colonies for an hundred and thirty years previous to\nthe statute. Neither the statute, nor any right of property acquired\nunder it, (in the individual slaves thereafterwards brought from\nAfrica,) would therefore avail anything for the legality of slavery in\nthis country now; because the descendants of those brought from Africa\nunder the act, cannot now be distinguished from the descendants of those\nwho had, for the hundred and thirty years previous, been held in bondage\nwithout law.\n\nBut the presumption is, that, even after this statute was passed in\n1750, if the slave trader's _right of property_ in the slave he was\nbringing to America, could have been brought before an English court for\nadjudication, the same principles would have been held to apply to it,\nas would have applied to a case arising within the island of Great\nBritain. And it must therefore always have been held by English courts,\n(in consistency with the decision in Somerset's case,) that the slave\ntrader had no legal ownership of his slave. And if the slave trader had\nno legal right of property in his slave, he could transfer no legal\nright of property to a purchaser in the colonies. Consequently the\nslavery of those that were brought into the colonies after the statute\nof 1750, was equally illegal with that of those who had been brought in\nbefore.[8]\n\nThe conclusion of the whole matter is, that until some reason appears\nagainst them, we are bound by the decision of the King's bench in 1772,\nand the colonial charters. That decision declared that there was, at\nthat time, in England, no right of property in man, (notwithstanding\nthe English government had for a long time connived at the slave\ntrade.)--The colonial charters required the legislation of the colonies\nto be consonant to reason, and not repugnant or contrary, but\nconformable, or agreeable, as nearly as circumstances would allow, to\nthe laws, statutes and rights of the realm of England. That decision,\nthen, if correct, settled the law both for England and the colonies. And\nif so, there was no _constitutional_ slavery in the colonies up to the\ntime of the revolution.\n\n[Footnote 4: The second charter to Virginia (1609) grants the power of\nmaking \"orders, ordinances, constitutions, directions and instructions,\"\n\"so always as the said statutes, ordinances and proceedings, as near as\nconveniently may be, be agreeable to the laws, statutes, government and\npolicy of this our realm of England.\"\n\nThe third charter (1611-12) gave to the \"General Court\" \"power and\nauthority\" to \"make laws and ordinances\" \"so always as the same be not\ncontrary to the laws and statutes of our realm of England.\"\n\nThe first charter to Carolina, (including both North and South\nCarolina,) dated 1663, authorized the making of laws under this\nproviso--\"Provided nevertheless, that the said laws be consonant to\nreason, and as near as may be conveniently, agreeable to the laws and\ncustoms of this our kingdom of England.\"\n\nThe second charter (1665) has this proviso. \"Provided nevertheless, that\nthe said laws be consonant to reason, and as near as may be\nconveniently, agreeable to the laws and customs of this our realm of\nEngland.\"\n\nThe charter to Georgia, (1732,) an hundred years after slavery had\nactually existed in Virginia, makes no mention of slavery, but requires\nthe laws to be \"reasonable and not repugnant to the laws of this our\nrealm.\" \"The said corporation shall and may form and prepare laws,\nstatutes and ordinances fit and necessary for and concerning the\ngovernment of the said colony, and not repugnant to the laws and\nstatutes of England.\"\n\nThe charter to Maryland gave the power of making laws, \"So,\nnevertheless, that the laws aforesaid be consonant to reason, and be not\nrepugnant or contrary, but (so far as conveniently may be,) agreeable to\nthe laws, statutes, customs, and rights of this our kingdom of England.\"\n\nThe charter granted to Sir Edward Plowden had this proviso. \"So,\nnevertheless, that the laws aforesaid be consonant to reason, and not\nrepugnant and contrary, (but as convenient as may be to the matter in\nquestion,) to the laws, statutes, customs and rights of our kingdoms of\nEngland and Ireland.\"\n\nIn the charter to Pennsylvania, power was granted to make laws, and the\npeople were required to obey them, \"Provided nevertheless that the said\nlaws be consonant to reason, and be not repugnant or contrary, but, as\nnear as conveniently may be, agreeable to the laws, statutes, and rights\nof this our kingdom of England.\"\n\nI have not been able to find a copy of the charter granted to the Duke\nof York, of the territory comprising New York, New Jersey, &c. But\nGordon, in his history of the American Revolution, (vol. 1. p. 43,)\nsays, \"The king's grant to the Duke of York, is plainly restrictive to\nthe laws and government of England.\"\n\nThe charter to Connecticut gave power \"Also from time to time, to make,\nordain and establish all manner of wholesome and reasonable laws,\nstatutes, ordinances, directions and instructions, not contrary to the\nlaws of this realm of England.\"\n\nThe charter to the Massachusetts Bay Colony, (granted by William and\nMary,) gave \"full power and authority, from time to time, to make,\nordain and establish all manner of wholesome and reasonable orders,\nlaws, statutes and ordinances, directions and instructions, either with\npenalties or without, so as the same be not repugnant or contrary to the\nlaws of this our realm of England.\"\n\nThe charter to Rhode Island granted the power of making laws, \"So as\nsuch laws, ordinances, constitutions, so made, be not contrary and\nrepugnant unto, but (as near as may be) agreeable to the laws of this\nour realm of England, considering the nature and constitution of the\nplace and people there.\"\n\nSeveral other charters, patents, &c. that had a temporary existence,\nmight be named, that contained substantially the same provision.]\n\n[Footnote 5: In the case of the town of Pawlet _v._ Clark and others,\nthe court say--\n\n\"Let us now see how far these principles were applicable to New\nHampshire, at the time of issuing the charter to Pawlet.\n\n\"New Hampshire was originally erected into a royal province in the\nthirty-first year of Charles II., and from thence until the revolution\ncontinued a royal province, under the immediate control and direction of\nthe crown. By the first royal commission granted in 31 Charles II.,\namong other things, judicial powers, in all actions, were granted to the\nprovincial governor and council, 'So always that the form of proceeding\nin such cases, and the judgment thereupon to be given, be as consonant\nand agreeable to the laws and statutes of this our realm of England, as\nthe present state and condition of our subjects inhabiting within the\nlimits aforesaid (i.e. of the province) and the circumstances of the\nplace will admit.' _Independent, however, of such a provision, we take\nit to be a clear principle that the common law in force at the\nemigration of our ancestors, is deemed the birthright of the colonies,\nunless so far as it is inapplicable to their situation, or repugnant to\ntheir other rights and privileges._ _A fortiori_ the principle applies\nto a royal province.\"--(9 Cranch's U. State's Reports, 332-3.)]\n\n[Footnote 6: Somerset _v._ Stewart.--Lofft's Reports, p. 1 to 19, of\nEaster Term, 1772. In the Dublin edition the case is not entered in the\nIndex.]\n\n[Footnote 7: Have parliament the constitutional prerogative of\nabolishing the writ of _habeas corpus_? the trial by jury? or the\nfreedom of speech and the press? If not, have they the prerogative of\nabolishing a man's right of property in his own person?]\n\n[Footnote 8: Mr. Bancroft, in the third volume of his history, (pp. 413,\n14,) says:\n\n\"And the statute book of England soon declared the opinion of its king\nand its parliament, that 'the trade,'\" (by which he means the slave\ntrade, of which he is writing,) 'is highly beneficial and advantageous\nto the kingdom and the colonies.' To prove this he refers to statute of\n\"1795, 8 and 10 Wm. 3, ch. 26.\" (Should be 1797, 8-9 and 10 Wm. 3, ch.\n26.)\n\nNow the truth is that, although this statute may have been, and very\nprobably was designed to _insinuate_ to the slave traders the personal\napprobation of parliament to the slave trade, yet the statute itself\nsays not a word of slaves, slavery, or the slave trade, except to\nforbid, under penalty of five hundred pounds, any governor,\ndeputy-governor or judge, in the colonies or plantations in America, or\nany other person or persons, for the use or on the behalf of such\ngovernor, deputy-governor or judges, to be \"a factor or factor's agent\nor agents\" \"for the sale or disposal of any negroes.\"\n\nThe statute does not declare, as Mr. Bancroft asserts, that \"the (slave)\ntrade is highly beneficial and advantageous to the kingdom and the\ncolonies;\" but that \"_the trade to Africa_ is highly beneficial and\nadvantageous,\" &c. It is an _inference_ of Mr. Bancroft's that \"the\ntrade to Africa\" was the _slave_ trade. Even this inference is not\njustified by the words of the statute, considering them in that legal\nview, in which Mr. Bancroft's remarks purport to consider them.\n\nIt is true that the statute assumes that \"_negroes_\" will be \"imported\"\nfrom Africa into \"England,\" (where of course they were not slaves,) and\ninto the \"plantations and colonies in America.\" But it nowhere calls\nthese \"negroes\" _slaves_, nor assumes that they are slaves. For aught\nthat appears from the statute, they were free men and passengers,\nvoluntary emigrants, going to \"England\" and \"the plantations and\ncolonies\" as laborers, as such persons are now going to the British West\nIndies.\n\nThe statute, although it apparently desires to insinuate or faintly\nimply that they are property, or slaves, nevertheless studiously avoids\nto acknowledge them as such distinctly, or even by any necessary\nimplication; for it exempts them from duties as merchandize, and from\nforfeiture for violation of revenue laws, and it also relieves the\nmasters of vessels from any obligation to render any account of them at\nthe custom houses.\n\nWhen it is considered that slavery, property in man, can be legalized,\naccording to the decision of Lord Mansfield, by nothing less than\npositive law; that the rights of property and person are the same on\nboard an English ship, as in the island of Great Britain; and that this\nstatute implies that these \"negroes\" were to be \"imported\" into\n\"England,\" as well as into the \"Plantations and colonies in America,\"\nand that it therefore no more implies that they were to be _slaves_ in\n\"the plantations and colonies\" than in \"England,\" where we know they\ncould not be slaves; when these things are considered, it is perfectly\nclear, as a _legal_ proposition, that the statute legalized neither\nslavery in the plantations and colonies, nor the slave trade from Africa\nto America--however we may suppose it to have been designed to hint a\npersonal approbation, on the part of parliament, of the actual traffic.\n\nBut lest I may be suspected of having either misrepresented the words of\nthe statute, or placed upon them an erroneous legal construction, I give\n_all_ the words of the statute, that make any mention of \"negroes,\" or\ntheir importation, with so much of the context as will enable the reader\nto judge for himself of the legal import of the whole.\n\nThe act is entitled, \"_An Act to settle the Trade to Africa._\" Sec. 1\nrecites as follows:--\n\n\"Whereas, the Trade to Africa is highly beneficial and advantageous to\nthis kingdom and to the Plantations and Colonies thereunto belonging.\"\n\nThe act contains _twenty-one_ sections, regulating trade, duties. &.,\nlike any other navigation act. \"Negroes\" are mentioned only in the\nfollowing instances and connexions, to wit:\n\nSec. 7. \"And be it enacted by the authority aforesaid, That from and\nafter the four-and-twentieth day of June, one thousand six hundred\nninety-and-eight, it shall and may be lawful to and for any of the\nsubjects of his majesty's realms of England, as well as the said\nCompany,(The Royal African Company) to trade from England or any of his\nmajesty's plantations or colonies in America to the coast of Africa,\nbetween Blanco and Cape Mount, answering and paying a duty of ten pounds\nper centum ad valorem for the goods and merchandizes to be exported from\nEngland or any of his majesty's plantations or colonies in America to\nand for the coast of Africa, between Cape Blanco and Cape Mount, and in\nproportion for a greater or lesser value, and answering and paying a\nfurther sum and duty of ten pounds per centum ad valorem, redwood only\nexcepted, which is to pay five pounds per centum ad valorem, at the\nplace of importation upon all goods and merchandize (negroes excepted)\nimported in (into) England or any of his majesty's plantations or\ncolonies in America, from the coast of Africa, between Cape Blanco and\nCape Mount aforesaid.* * * * And that all goods and merchandize,\n(negroes excepted,) that shall be laded or put on board any ship or\nvessel on the coast of Africa, between Cape Blanco and Cape Mount, and\nshall be imported into England or into any of his majesty's plantations\nor colonies aforesaid, shall answer and pay the duties aforesaid, and\nthat the master or chief officer of every such ship or vessel that shall\nlade or receive any goods or merchandize (negroes excepted) on board of\nhis or their ship or vessel between Cape Blanco and Cape Mount, shall\nupon making entry at any of his majesty's custom houses aforesaid of the\nsaid ship or vessel, or before any goods or merchandize be landed or\ntaken out of the said ship or vessel (negroes excepted) shall deliver in\na manifest or particular of his cargo, and take the following oath, viz.\n\nI, A.B., do swear that the manifest or particular now by me given in and\nsigned, to the best of my knowledge and belief doth contain, signify and\nexpress all the goods, wares and merchandizes (negroes excepted) which\nwere laden or put on board the ship called the----, during her stay and\ncontinuing on the coast of Africa between Cape Blanco and Cape Mount,\nwhereof I, A.B. am master.\"\n\nSec. 8. \"And that the owner or importer of all goods and merchandize\n(negroes excepted) which shall be brought to England or any of his\nmajesty's plantations from any port of Africa between Cape Blanco and\nCape Mount aforesaid shall make entry of all such goods and merchandize\nat one of his majesty's chief custom houses in England, or in such of\nhis majesty's plantations where the same shall be imported,\" &c.\n\nSec. 9.* * * * \"that all goods or merchandizes (negroes excepted) which\nshall be brought from any part of Africa, between Cape Blanco and Cape\nMount aforesaid, which shall be unladed or landed before entry made and\nsigned and oath of the true and real value thereof made and the duty\npaid as aforesaid shall be forfeited, or the value thereof.\"\n\nSec. 20. \"And be it further enacted by the authority aforesaid, that no\ngovernor, or deputy-governor of any of his majesty's colonies or\nplantations in America, or his majesty's judges in any courts there for\nthe time being, nor any other person or persons for the use or on behalf\nof such governor or deputy-governor or judges, from and after the\nnine-and-twentieth day of September, one thousand six hundred and\nninety-eight, shall be a factor or factor's agent or agents for the said\nCompany,(The Royal African Company) or any other person or persons for\nthe sale or disposal of any negroes, and that every person offending\nherein shall forfeit five hundred pounds to the uses aforesaid, to be\nrecovered in any of his majesty's courts of record at Westminster, by\naction of debt, bill, plaint or information, wherein no essoign,\nprotection, privilege or wager of law shall be allowed, nor any more\nthan one imparlance.\"\n\nSec. 21. \"Provided that this act shall continue and be in force\n_thirteen years_, and from thence to the end of the next sessions of\nparliament, and no longer.\"\n\nEven if this act had legalized, (as in reality it did not legalize,) the\nslave trade during those thirteen years, it would be impossible now to\ndistinguish the descendants of those who were imported under it, from\nthe descendants of those who had been previously, and were subsequently\nimported and sold into slavery without law. The act would therefore\navail nothing towards making the existing slavery in this country legal.\n\nThe next statute, of which I find any trace, passed by parliament, with\nany apparent view to countenance the slave trade, was the statute of 23d\nGeorge II., ch. 31. (1749-50.)\n\nMr. Bancroft has committed another still more serious error in his\nstatement of the _words_, (for he professes to quote precise words,) of\nthis statute. He says, (vol. 3, p. 414,)\n\n\"At last, in 1749, to give the highest activity to the trade, (meaning\nthe slave trade,) every obstruction to private enterprize was removed,\nand the ports of Africa were laid open to English competition, for 'the\n_slave_ trade,'--such\" (says Mr. Bancroft,) \"are the words of the\nstatute--'the _slave_ trade is very advantageous to Great Britain.'\"\n\nAs words are, in this case, things--and things of the highest _legal_\nconsequence--and as this history is so extensively read and received as\nauthority--it becomes important, in a legal, if not historical, point of\nview, to correct so important an error as that of the word _slave_ in\nthis statement. \"The _words_ of the statute\" are _not_ that \"the _slave_\ntrade,\" but that \"_the trade to and from Africa_ is very advantageous to\nGreat Britain.\" \"The trade to and from Africa\" no more means, _in law_,\n\"the _slave_ trade,\" than does the trade to and from China. From aught\nthat appears, then, from _so much_ of the preamble, \"the trade to and\nfrom Africa\" may have been entirely in other things than slaves. And it\nactually appears from another part of the statute, that trade was\ncarried on in \"gold, elephant's teeth, wax, gums and drugs.\"\n\nFrom the words immediately _succeeding_ those quoted by Mr. Bancroft\nfrom the preamble to this statute, it might much more plausibly,\n(although even from them it could not be legally) inferred that the\nstatute legalized the slave trade, than from those pretended to be\nquoted by him. That the succeeding words may be seen, the title and\npreamble to the act are given, as follows:\n\n\"_An Act for extending and improving the trade to Africa._\"\n\n\"Whereas, the trade to and from Africa is very advantageous to Great\nBritain, _and necessary for supplying the plantations and colonies\nthereunto belonging, with a sufficient number of_ NEGROES _at reasonable\nrates_; and for that purpose the said trade\" (i.e. \"the trade to and\nfrom Africa\") \"ought to be free and open to all his majesty's subjects.\nTherefore be it enacted,\" &c.\n\n\"Negroes\" were not slaves by the English law, and therefore the word\n\"negroes,\" in this preamble, does not _legally_ mean slaves. For aught\nthat appears from the words of the preamble, _or even from any part of\nthe statute itself_, these \"negroes,\" with whom it is declared to be\nnecessary that the plantations and colonies should be supplied, were\nfree persons, voluntary emigrants, that were to be induced to go to the\nplantations as hired laborers, as are those who, at this day, are\ninduced, in large numbers, and by the special agency of the English\ngovernment, to go to the British West Indies. In order to facilitate\nthis emigration, it was necessary that \"the trade to and from Africa\"\nshould be encouraged. And the form of the preamble is such as it\nproperly might have been, if such had been the real object of\nparliament. Such is undoubtedly the true _legal_ meaning of this\npreamble, for this meaning being consistent with natural right, public\npolicy, and with the fundamental principles of English law, legal rules\nof construction imperatively require that this meaning should be\nascribed to it, rather than it should be held to authorize anything\ncontrary to natural right, or contrary to the fundamental principles of\nBritish law.\n\nWe are obliged to put this construction upon this preamble, for the\nfurther reason that it corresponds with the enacting clauses of the\nstatute--not one of which mentions such a thing _as the transportation\nof slaves to, or the sale of slaves in_ \"the plantations and colonies.\"\nThe first section of the act is in these words, to wit.\n\n\"That it shall and may be lawful for all his majesty's subjects to trade\nand traffic to and from any port or place in Africa, between the port of\nSallee in South Barbary, and the Cape of Good Hope, when, at such times,\nand in such manner, and in or with such quantity of _goods_, _wares and\nmerchandizes_, as he or they shall think fit, without any restraint\nwhatsoever, save as is herein after expressed.\"\n\nHere plainly is no authority given \"to trade and traffic\" in any thing\nexcept what is known either to the English law, or the law of nature, as\n\"goods, wares or merchandizes\"--among which _men_ were _not_ known,\neither to the English law, or the law of nature.\n\nThe second section of the act is in these words:\n\n\"That all his majesty's subjects, who shall trade to or from any of the\nports or places of Africa, between Cape Blanco and the Cape of Good\nHope, shall forever hereafter be a body corporate and politic, in name\nand in deed, by the name of the Company of Merchants Trading to Africa,\nand by the same name shall have perpetual succession, and shall have a\ncommon seal, and by that name shall and may sue, and be sued, and do any\nother act, matter and thing, which any other body corporate or politic,\nas such, may lawfully do.\"\n\nNeither this nor any other section of the act purports to give this\n\"Company,\" in its corporate capacity, any authority to buy or sell\nslaves, or to transport slaves to the plantations and colonies.\n\nThe 20th section of the act is in these words:\n\n\"And be it further enacted by the authority aforesaid, that no commander\nor master of any ship trading to Africa, shall by _fraud_, _force or\nviolence_, or by any other indirect practice whatsoever, take on board,\nor carry away from the coast of Africa, any negro or native of the said\ncountry, or commit, or suffer to be committed, any violence on the\nnatives, to the prejudice of the said trade; and that every person so\noffending shall, for every such offence, forfeit the sum of one hundred\npounds of lawful money of Great Britain; one moiety thereof to the use\nof the said Company hereby established, and their successors, for and\ntowards the maintaining of said forts and settlements, and the other\nmoiety to and for the use of him or them who shall inform or sue for the\nsame.\"\n\nNow, although there is perhaps no good reason to doubt that the _secret_\nintention of parliament in the passage of this act, was to stimulate the\nslave trade, and that there was a tacit understanding between the\ngovernment and the slave dealers, that the slave trade should go on\nunharmed (in practice) by the government, and although it was\nundoubtedly understood that this penalty of one hundred pounds would\neither not be sued for at all, or would be sued for so seldom as\n_practically_ to interpose no obstacle to the general success of the\ntrade, still, as no part of the whole statute gives any authority to\nthis \"Company of Merchants trading to Africa\" to transport men from\nAfrica against their will, and as this 29th section contains a special\nprohibition to individuals, under penalty, to do so, no one can pretend\nthat the trade was legalized. If the penalty had been but one pound,\ninstead of one hundred pounds, it would have been sufficient, _in law_,\nto have rebutted the pretence that the trade was legalized. The act, on\nits face, and in its legal meaning, is much more an act to prohibit,\nthan to authorize the slave trade.\n\nThe only possible _legal_ inference from the statute, _so far as it\nconcerns the \"supplying the plantations and colonies with negroes at\nreasonable rates_,\" is, that these negroes were free laborers, voluntary\nemigrants, that were to be induced to go to the plantations and\ncolonies; and that \"the trade to and from Africa\" was thrown open in\norder that the facilities for the transportation of these emigrants\nmight be increased.\n\nBut although there is, in this statute, no authority given for--but, on\nthe contrary, a special prohibition upon--the transportation of the\nnatives from Africa against their will, yet I freely admit that the\nstatute contains one or two strong, perhaps decisive implications in\nfavor of the fact that slavery was allowed in the English settlements\n_on the coast of Africa_, apparently in conformity with the customs of\nthe country, and with the approbation of parliament. But that is the\nmost that can be said of it. Slavery, wherever it exists, is a local\ninstitution; and its toleration, or even its legality, _on the coast of\nAfrica_, would do nothing towards making it legal in any other part of\nthe English dominions. Nothing but positive and explicit legislation\ncould transplant it into any other part of the empire.\n\nThe implications, furnished by the act, in favor of the toleration of\nslavery, in the English settlements, on the coast of Africa, are the\nfollowing:\n\nThe third section of the act refers to another act of parliament\n\"divesting the Royal African Company of their _charter_, forts, castles\nand military stores, canoe-men and _castle-slaves_;\" and section\nthirty-first requires that such \"officers of his majesty's navy,\" as\nshall be appointed for the purpose, \"shall inspect and examine the state\nand condition of the forts and settlements on the coast of Africa, in\nthe possession of the Royal African Company, and of the number of\nsoldiers therein, and also the state and condition of the military\nstores, castles, _slaves_, canoes and other vessels and things,\nbelonging to the said company, _and necessary for the use and defence of\nthe said forts and settlements_, and shall with all possible despatch\nreport how they find the same.\"\n\nHere the fact is stated that the \"Royal African Company,\" (a company\nthat had been in existence long previous to the passing of this act,)\nhad held \"castle-slaves\" \"for the use and defence of the said forts and\nsettlements.\" The act does not say directly whether this practice was\nlegal or illegal; although it seems to imply that, whether legal or\nillegal, it was tolerated with the knowledge and approbation of\nparliament.\n\nBut the most distinct approbation given to slavery by the act, is\nimplied in the 28th section, in these words:\n\n\"That it shall and may be lawful for any of his majesty's subjects\ntrading to Africa, for the security of their goods and _slaves_, to\nerect houses and warehouses, under the protection of the said forts,\"\n&c.\n\nAlthough even this language would not be strong enough to overturn\npreviously established principles of English law, and give the slave\nholders a legal right of property in their slaves, in any place where\nEnglish law had previously been expressly established, (as it had been\nin the North American colonies,) yet it sufficiently evinces that\nparliament approved of Englishmen holding slaves in the settlements _on\nthe coast of Africa_, in conformity with the customs of that country.\nBut it implies no authority for transporting their slaves to America; it\ndoes nothing towards legalizing slavery in America; it implies no\n_toleration_ even of slavery any where, except upon the coast of Africa.\nHad slavery been positively and explicitly legalized on the coast of\nAfrica, it would still have been a local institution.\n\nThis reasoning may appear to some like quibbling; and it would perhaps\nbe so, were not the rule well settled that nothing but explicit and\nirresistible language can be legally held to authorize anything\ninconsistent with natural right, and with the fundamental principles of\na government.\n\nThat this statute did not legalize the right of property in man, (unless\nas a local principle on the coast of Africa,) we have the decision of\nLord Mansfield, who held that it did not legalize it in England; and if\nit did not legalize it in England, it did not legalize it in any of the\ncolonies where the principles of the common law prevailed. Of course it\ndid not legalize it in the North American colonies.\n\nBut even if it were admitted that this statute legalized the right of\nproperty, on the part of the slave trader, in his slaves taken in Africa\nafter the passage of the act, and legalized the sale of such slaves in\nAmerica, still the statute would be ineffectual to sustain the legality\nof slavery, _in general_, in the colonies. It would only legalize the\nslavery of those particular individuals, who should be transported from\nAfrica to America, subsequently to the passage of this act, and in\nstrict conformity with the law of this act--(a thing, by the way, that\ncould now be proved in no case whatever.) This act was passed in\n1749-50, and could therefore do nothing towards legalizing the slavery\nof all those who had, for an hundred and thirty years previous, been\nheld in bondage in Virginia and elsewhere. And as no distinction can now\nbe traced between the descendants of those who were imported under this\nact, and those who had illegally been held in bondage prior to its\npassage, it would be of no practical avail to slavery now, to prove, (if\nit could be proved,) that those introduced into the country subsequent\nto 1750, were legally the property of those who introduced them.]\n\n\n\n\nCHAPTER IV.\n\nCOLONIAL STATUTES.\n\n\nBut the colonial legislation on the subject of slavery, was not only\nvoid as being forbidden by the colonial charters, but in many of the\ncolonies it was void for another reason, viz: _that it did not\nsufficiently define the persons who might be made slaves_.\n\nSlavery, if it can be legalized at all, can be legalized only by\npositive legislation. Natural law gives it no aid. Custom imparts to it\nno legal sanction. This was the doctrine of the King's Bench in\nSomerset's case, as it is the doctrine of common sense. Lord Mansfield\nsaid, \"So high an act of dominion must be recognized by the law of the\ncountry where it is used.* * * * The state of slavery is of such a\nnature, that it is incapable of being introduced on any reasons, moral\nor political--but only positive law, which preserves its force long\nafter the reasons, occasion, and time itself from whence it was created,\nis erased from the memory. It is so odious that nothing can be suffered\nto support it but positive law.\"\n\nSlavery, then, being the creature of positive legislation alone, can be\ncreated only by legislation that shall so particularly describe the\npersons to be made slaves, that they may be distinguished from all\nothers. If there be any doubt left by the _letter_ of the law, as to the\npersons to be made slaves, the efficacy of all other slave legislation\nis defeated simply by that uncertainty.\n\nIn several of the colonies, including some of those where slaves were\nmost numerous, there were either no laws at all defining the persons who\nmight be made slaves, or the laws, which attempted to define them, were\nso loosely framed that it cannot now be known who are the descendants of\nthose designated as slaves, and who of those held in slavery without any\ncolor of law. As the presumption must--_under the United States\nconstitution_--and indeed under the state constitutions also--be always\nin favor of liberty, it would probably now be impossible for a\nslaveholder to prove, in one case in an hundred, that his slave was\ndescended, (through the maternal line, according to the slave code,)\nfrom any one who was originally a slave within the description given by\nthe statutes.\n\nWhen slavery was first introduced into the country, there were no laws\nat all on the subject. Men bought slaves of the slave traders, as they\nwould have bought horses; and held them, and compelled them to labor, as\nthey would have done horses, that is, by brute force. By common consent\namong the white race, this practice was tolerated without any law.--At\nlength slaves had in this way become so numerous, that some regulations\nbecame necessary, and the colonial governments began to pass statutes,\nwhich _assumed_ the existence of slaves, although no laws defining the\npersons who might be made slaves, had ever been enacted. For instance,\nthey passed statutes for the summary trial and punishment of slaves;\nstatutes permitting the masters to chastise and baptise their slaves,[9]\nand providing that baptism should not be considered, in law, an\nemancipation of them. Yet all the while no act had been passed declaring\nwho might be slaves. Possession was apparently all the evidence that\npublic sentiment demanded, of a master's property in his slave. Under\nsuch a code, multitudes, who had either never been purchased as slaves,\nor who had once been emancipated, were doubtless seized and reduced to\nservitude by individual rapacity, without any more public cognizance of\nthe act, than if the person so seized had been a stray sheep.\n\n_Virginia._ Incredible as it may seem, slavery had existed in Virginia\nfifty years before even a statute was passed for the purpose of\ndeclaring who might be slaves; and then the persons were so described as\nto make the designation of no legal effect, at least as against Africans\ngenerally. And it was not until seventy eight years more, (an hundred\nand twenty-eight years in all,) that any act was passed that would cover\nthe case of the Africans generally, and make them slaves. Slavery was\nintroduced in 1620, but no act was passed even purporting to declare who\nmight be slaves, until 1670. In that year a statute was passed in these\nwords: \"That all _servants_, not being Christians, imported into this\ncountry by shipping, shall be slaves for their lives.\"[10]\n\nThis word \"servants\" of course legally describes individuals known as\nsuch to the laws, and distinguished as such from other persons\ngenerally. But no class of Africans \"imported,\" were known as\n\"servants,\" as distinguished from Africans generally, or in any manner\nto bring them within the legal description of \"servants,\" as here used.\nIn 1682 and in 1705 acts were again passed declaring \"that all\nservants,\" &c., imported, should be slaves. And it was not until 1748,\n_after slavery had existed an hundred and twenty-eight years_, that this\ndescription was changed for the following:\n\n\"That all _persons_, who have been or shall be imported into this\ncolony,\" &c., &c., shall be slaves.[11]\n\nIn 1776, the only statute in Virginia, under which the slaveholders\ncould make any claim at all to their slaves, was passed as late as 1753,\n(one hundred and thirty-three years after slavery had been introduced;)\nall prior acts having been then repealed, without saving the rights\nacquired under them.[12]\n\nEven if the colonial charters had contained no express prohibition upon\nslave laws, it would nevertheless be absurd to pretend that the colonial\nlegislature had power, in 1753, to look back an hundred and thirty-three\nyears, and arbitrarily reduce to slavery all colored persons that had\nbeen imported into, or born in the colony within that time. If they\ncould not do this, then it follows that all the colored persons in\nVirginia, up to 1753, (only twenty-three years before the revolution,)\nand all their descendants to the present time, were and are free; and\nthey cannot now be distinguished from the descendants of those\nsubsequently imported. Under the presumption--furnished by the\nconstitution of the United States--that all are free, few or no\nexceptions could now be proved.\n\nIn North Carolina no general law at all was passed, prior to the\nrevolution, declaring who might be slaves,--(See Iredell's statutes,\nrevised by Martin.)\n\nIn South Carolina, the only statutes, prior to the revolution, that\nattempted to designate the slaves, was passed in 1740--after slavery had\nfor a long time existed. And even this statute, in reality, defined\nnothing; for the whole purport of it was, to declare that all negroes,\nIndians, mulattoes and mestizoes, _except those who were then free_,\nshould be slaves. Inasmuch as no prior statute had ever been passed,\ndeclaring who should be slaves, _all were legally free_; and therefore\nall came within the exception in favor of free persons.[13]\n\nThe same law, in nearly the same words, was passed in Georgia, in 1770.\n\nThese were the only general statutes, under which slaves were held in\nthose four States, (Virginia, North Carolina, South Carolina and\nGeorgia,) at the time of the revolution. They would all, for the reasons\ngiven, have amounted to nothing, as a foundation for the slavery now\nexisting in those states, even if they had not been specially prohibited\nby their charters.\n\n[Footnote 9: \"_Chastised._\" An act passed in South Carolina in 1740,\nauthorized slaves to sue for their liberty, by a guardian appointed for\nthe purpose. The act then provides that if judgment be for the slave, he\nshall be set free, and recover damages; \"but in case judgment shall be\ngiven for the defendant, (the master,) the said court is hereby fully\nempowered to inflict such corporeal punishment, not extending to life or\nlimb, on the ward of the plaintiff, (the slave) as they in their\ndiscretion shall see fit.\"\n\n_Brevard's Digest, vol. 2, p. 130._\n\n\"_Baptised._\" In 1712 South Carolina passed this act:\n\n\"Since charity and the Christian religion which we profess, obliges us\nto wish well to the souls of all men, and that religion may not be made\na pretence to alter any man's property and right, and that no persons\nmay neglect to baptize their negroes or slaves, or suffer them to be\nbaptized, for fear that thereby they should be manumitted and set free:\n_Be it therefore enacted_, That it shall be, and is hereby declared\nlawful for any negro or Indian slave, or any other slave or slaves\nwhatsoever, to receive and profess the Christian faith, and be thereunto\nbaptised. But that notwithstanding such slave or slaves shall receive\nand profess the Christian religion, and be baptised, he or they shall\nnot thereby be manumitted or set free, or his or their owner, master or\nmistress lose his or their civil right, property and authority over such\nslave or slaves, but that the slave or slaves, with respect to his or\ntheir servitude, shall remain and continue in the same state and\ncondition, that he or they was in before the making of this\nact.\"--_Grimke, p. 18. Brevard, vol. 2, p. 229._\n\nIn 1667, the following statute was passed in Virginia:\n\n\"Whereas, some doubts have arisen whether children that are slaves by\nbirth, and by the charity and piety of their owners made partakers of\nthe blessed sacrament of baptism, should by virtue of their baptism be\nmade free; _It is enacted and declared by this grand assembly, and the\nauthority thereof_, that the confering of baptism doth not alter the\ncondition of the person as to his bondage or freedom; that divers\nmasters, freed from this doubt, may more carefully endeavor the\npropagation of Christianity by permitting children, though slaves, or\nthose of greater growth, if capable to be admitted to that\nsacrament.\"--_Hening's Statutes, vol. 2, p. 260._]\n\n[Footnote 10: Hening, vol. 2, p. 283.]\n\n[Footnote 11: Hening, vol. 5, p. 547-8.]\n\n[Footnote 12: In 1753 Virginia passed a statute, occupying some twelve\nor fifteen pages of the statute book, and intended to cover the whole\ngeneral subject of slavery. One of the sections of this act is as\nfollows:\n\n\"That all and every other act and acts, clause and clauses, heretofore\nmade, for or concerning any matter or thing within the provision of this\nact, shall be and are hereby repealed.\"--_Hening's Statutes, vol. 6, p.\n369._\n\nNo reservation being made, by this section, of rights acquired under\nformer statutes, and slave property being a matter dependent entirely\nupon statute, all title to slave property, acquired under former acts,\nwas by this act annihilated; and all the slaves in the State were made\nfreemen, _as against all prior legislation_. And the slaves of the State\nwere thenceforward held in bondage only by virtue of another section of\nthe same act, which was in these words:\n\n\"That all persons _who have been_, or shall be imported into this\ncolony, by sea or land, and were not Christians in their native country,\nexcept Turks and Moors in amity with his majesty, and such who can prove\ntheir being free in England, or any other Christian country, before they\nwere shipped for transportation hither, shall be accounted slaves, and\nas such be here bought and sold, notwithstanding a conversion to\nChristianity after their importation.\"--_Hening, vol. 6, p. 356-7._\n\nThe act also provided, \"That all children shall be bond or free,\naccording to the condition of their mothers and the particular\ndirections of this act.\"]\n\n[Footnote 13: The following is the preamble and the important enacting\nclause of this statute of 1740:\n\n\"Whereas, in his majesty's plantations in America, slavery has been\nintroduced and allowed; and the people commonly called negroes, Indians,\nmulattos and mestizoes have (been) deemed absolute slaves, and the\nsubjects of property in the hands of particular persons; the extent of\nwhose power over such slaves ought to be settled and limited by positive\nlaws, so that the slaves may be kept in due subjection and obedience,\nand the owners and other persons having the care and government of\nslaves, may be restrained from exercising too great vigor and cruelty\nover them; and that the public peace and order of this province may be\npreserved: _Be it enacted_, That all negroes, Indians, (_free_ Indians\nin amity with this government, and negroes, mulattos and mestizoes, _who\nare now free, excepted_,) mulattos and mestizoes, who now are or shall\nhereafter be in this province, and all their issue and offspring born or\nto be born, shall be and they are hereby declared to be and remain\nforever hereafter absolute slaves, and shall follow the condition of the\nmother,\" &c.--_Grimke, p. 163-4. Brevard, vol. 2, p. 229._]\n\n\n\n\nCHAPTER V.\n\nTHE DECLARATION OF INDEPENDENCE.\n\n\nAdmitting, for the sake of the argument, that prior to the revolution,\nslavery had a constitutional existence, (so far as it is possible that\ncrime can have such an existence,) was it not abolished by the\ndeclaration of independence?\n\nThe Declaration was certainly the constitutional law of this country for\ncertain purposes. For example, it absolved the people from their\nallegiance to the English crown. It would have been so declared by the\njudicial tribunals of this country, if an American, during the\nrevolutionary war or since, had been tried for treason to the crown. If,\nthen, the declaration were the constitutional law of the country for\nthat purpose, was it not also constitutional law for the purpose of\nrecognizing and establishing, as law, the natural and inalienable right\nof individuals to life, liberty and the pursuit of happiness? The\nlawfulness of the act of absolving themselves from their allegiance to\nthe crown, was avowed by the people of the country--and that too in the\nsame instrument that declared the absolution--to rest entirely upon, and\nto be only a consequence of the natural right of all men to life,\nliberty and the pursuit of happiness. If, then, the act of absolution\nwas lawful, does it not necessarily follow that the principles that\nlegalized the act, were also law? And if the country ratified the act of\nabsolution, did they not also necessarily ratify and acknowledge the\nprinciples which they declared legalized the act?\n\nIt is sufficient for our purpose, if it be admitted that this principle\nwas the law of the country at that particular time, (1776)--even though\nit had continued to be the law only for a year, or even a day. For if it\nwere the law of the country even for a day, it freed every slave in the\ncountry--(if there were, as we say there were not, any legal slaves then\nin the country.) And the burden would then be upon the slaveholder to\nshow that slavery had _since_ been _constitutionally_ established. And\nto show this, he must show an express _constitutional_ designation of\nthe particular individuals, who have since been made slaves. Without\nsuch particular designation of the individuals to be made slaves, (and\nnot even the present constitutions of the slave States make any such\ndesignation,) all constitutional provisions, purporting to authorize\nslavery, are indefinite, and uncertain in their application, and for\nthat reason void.\n\nBut again. The people of this country--in the very instrument by which\nthey first announced their independent political existence, and first\nasserted their right to establish governments of their own--declared\nthat the natural and inalienable right of all men to life, liberty and\nthe pursuit of happiness, was a \"_self-evident truth_.\"\n\nNow, all \"_self-evident truths_,\" except such as may be explicitly, or\nby necessary implication, denied, (and no government has a right to deny\nany of them,) enter into, are taken for granted by, and constitute an\nessential part of all constitutions, compacts and systems of government\nwhatsoever.--Otherwise it would be impossible for any systematic\ngovernment to be established; for it must obviously be impossible to\nmake an actual enumeration of all the \"self-evident truths,\" that are to\nbe taken into account in the administration of such a government. This\nis more especially true of governments founded, like ours, upon\ncontract. It is clearly impossible, in a contract of government, to\nenumerate all the \"self-evident truths\" which must be acted upon in the\nadministration of law. And therefore they are _all_ taken for granted,\nunless particular ones be plainly denied.\n\nThis principle, that all \"self-evident truths,\" though not enumerated,\nmake a part of all laws and contracts, unless clearly denied, is not\nonly indispensable to the very existence of civil society, but it is\neven indispensable to the administration of justice in every individual\ncase or suit, that may arise, out of contract or otherwise, between\nindividuals. It would be impossible for individuals to make contracts at\nall, if it were necessary for them to enumerate all the \"self-evident\ntruths,\" that might have a bearing upon their construction before a\njudicial tribunal. All such truths are therefore taken for granted. And\nit is the same in all compacts of government, unless particular truths\nare plainly denied. And governments, no more than individuals, have a\nright to deny them in any case. To deny, in any case, that \"self-evident\ntruths\" are a part of the law, is equivalent to asserting that\n\"self-evident falsehood\" is law.\n\nIf, then, it be a \"self-evident truth,\" that all men have a natural and\ninalienable right to life, liberty and the pursuit of happiness, _that\ntruth_ constitutes a part of all our laws and all our constitutions,\nunless it have been unequivocally and authoritatively denied.\n\nIt will hereafter be shown that this \"self-evident truth\" has _never\nbeen denied_ by the people of this country, in their fundamental\nconstitution, or in any other explicit or authoritative manner. On the\ncontrary, it has been reiterated, by them, annually, daily and hourly,\nfor the last sixty-nine years, in almost every possible way, and in the\nmost solemn possible manner. On the 4th of July, '76, they collectively\nasserted it, as their justification and authority for an act the most\nmomentous and responsible of any in the history of the country. And this\nassertion has never been retracted by us, as a people. We have virtually\nre-asserted the same truth in nearly every state constitution since\nadopted. We have virtually re-asserted it in the national constitution.\nIt is a truth that lives on the tongues and in the hearts of all. It is\ntrue we have, in our practice, been so unjust as to withhold the\nbenefits of this truth from a certain class of our fellow men.--But,\neven in this respect, this truth has but shared the common fate of other\ntruths. They are generally allowed but a partial application. Still,\nthis truth itself, _as a truth_, has never been denied by us, _as a\npeople_, in any authentic form, or otherwise than impliedly by our\npractice in particular cases. If it have, say when and where. If it have\nnot, it is still law; and courts are bound to administer it, as law,\nimpartially to all.\n\nOur courts would want no other authority than this truth, thus\nacknowledged, for setting at liberty any individual, other than one\nhaving negro blood, whom our governments, state or national, should\nassume to authorize another individual to enslave. Why, then, do they\nnot apply the same law in behalf of the African? Certainly not because\nit is not as much the law of his case, as of others. _But it is simply\nbecause they will not._ It is because the courts are parties to an\nunderstanding, prevailing among the white race, but expressed in no\nauthentic constitutional form, that the negro may be deprived of his\nrights at the pleasure of avarice and power. And they carry out this\nunexpressed understanding in defiance of, and suffer it to prevail over,\nall our constitutional principles of government--all our authentic,\navowed, open and fundamental law.\n\n\n\n\nCHAPTER VI.\n\nTHE STATE CONSTITUTIONS OF 1789.\n\n\nOf all the state constitutions, that were in force at the adoption of\nthe constitution of the United States, in 1789, _not one of them\nestablished, or recognized slavery_.\n\nAll those parts of the state constitutions, (i.e. of the old thirteen\nstates,) that recognize and attempt to sanction slavery, _have been\ninserted, by amendments, since the adoption of the constitution of the\nUnited States_.\n\nAll the states, except Rhode-Island and Connecticut, formed\nconstitutions prior to 1789. Those two states went on, beyond this\nperiod, under their old charters.[14]\n\nThe eleven constitutions formed, were all democratic in their general\ncharacter. The most of them eminently so. They generally recognized, in\nsome form or other, the natural rights of men, as one of the fundamental\nprinciples of the government. Several of them asserted these rights in\nthe most emphatic and authoritative manner. Most or all of them had also\nspecific provisions incompatible with slavery. Not one of them had any\nspecific recognition of the existence of slavery. Not one of them\ngranted any specific authority for its continuance.\n\nThe only provisions or words in any of them, that could be claimed by\nany body as recognitions of slavery, are the following, viz.\n\n1. The use of the words \"our negroes\" in the preamble to the\nconstitution of Virginia.\n\n2. The mention of \"slaves\" in the preamble to the constitution of\nPennsylvania.\n\n3. The provisions, in some of the constitutions, for continuing in force\nthe laws that had previously been \"in force\" in the colonies, except\nwhen altered by, or incompatible with the new constitution.\n\n4. The use, in several of the constitutions, of the words \"free\" and\n\"freemen.\"\n\nAs each of these terms and clauses may be claimed by some persons as\nrecognitions of slavery, they are worthy of particular notice.\n\n1. The preamble to the frame of government of the constitution of\nVirginia speaks of negroes in this connexion, to wit: It charges George\nthe Third, among other things, with \"prompting _our negroes_ to rise in\narms among us, those very negroes, whom, by an inhuman use of his\nnegative, he hath refused us permission to exclude by law.\"\n\nHere is no assertion that these \"negroes\" were slaves; but only that\nthey were a class of people whom the Virginians did not wish to have in\nthe state, _in any capacity_--whom they wished \"to exclude by law.\" The\nlanguage, considered as legal language, no more implies that they were\nslaves, than the charge of having prompted \"our women, children,\nfarmers, mechanics, or our people with red hair, or our people with blue\neyes, or our Dutchmen, or our Irishmen to rise in arms among us,\" would\nhave implied that those portions of the people of Virginia were slaves.\nAnd especially when it is considered that slavery had had no prior\n_legal_ existence, this reference to \"negroes\" authorizes no legal\ninference whatever in regard to slavery.\n\nThe rest of the Virginia constitution is eminently democratic. The bill\nof rights declares \"that all men are by nature equally free and\nindependent, and have certain inherent rights,\"* * * * \"namely, the\nenjoyment of life and liberty, with the means of acquiring and\npossessing property, and pursuing and obtaining happiness and safety.\"\n\n2. The preamble to the Pennsylvania constitution used the word \"slaves\"\nin this connexion. It recited that the king of Great Britain had\nemployed against the inhabitants of that commonwealth, \"foreign\nmercenaries, savages and slaves.\"\n\nThis is no acknowledgment that they themselves had any slaves of their\nown; much less that they were going to continue their slavery; for the\nconstitution contained provisions plainly incompatible with that. Such,\nfor instance, is the following: which constitutes the first article of\nthe \"Declaration of Rights of the Inhabitants,\" (i.e. of _all_ the\ninhabitants) \"of the state of Pennsylvania.\"\n\n1. \"That all men are born equally free and independent, and have certain\nnatural, inherent and inalienable rights, among which are, the enjoying\nand defending life and liberty, acquiring, possessing and protecting\nproperty, and pursuing and obtaining happiness and safety.\"\n\nThe 46th section of the frame of government is in these words.\n\n\"The Declaration of Rights is hereby declared to be a part of the\nconstitution of this commonwealth, and ought never to be violated on any\npretence whatever.\"\n\nSlavery was clearly impossible under these two constitutional\nprovisions, to say nothing of others.\n\n2. Several of the constitutions provide that all the laws of the\ncolonies, previously \"_in force_,\" should continue in force until\nrepealed, _unless repugnant to some of the principles of the\nconstitutions themselves_.\n\nMaryland, New-York, New-Jersey, South Carolina, and perhaps one or two\nothers had provisions of this character. _North Carolina had none,\nGeorgia none, Virginia none_. The slave laws of these three latter\nstates, then, necessarily fell to the ground on this change of\ngovernment.\n\nMaryland, New-York, New-Jersey and South-Carolina had acts upon their\nstatute books, _assuming_ the existence of slavery, and pretending to\nlegislate in regard to it; and it may perhaps be argued that those laws\nwere continued in force under the provision referred to. But those acts\ndo not come within the above description of \"laws in force\"--and for\nthis reason, viz. the acts were originally unconstitutional and void, as\nbeing against the charters, under which they were passed; and therefore\nnever had been _legally_ \"in force,\" however they might have been\nactually carried into execution as a matter of might, or of pretended\nlaw, by the white race.\n\nThis objection applies to the slave acts of all the colonies. None of\nthem could be continued under this provision.--None of them, legally\nspeaking, were \"laws in force.\"\n\nBut in particular states there were still other reasons against the\ncolonial slave acts being valid under the new constitutions. For\ninstance, South Carolina had no statute (as has before been mentioned,)\nthat designated her slaves with such particularity as to distinguish\nthem from free persons; and for that reason none of her slave statutes\nwere _legally_ \"in force.\"\n\nNew-Jersey also was in the same situation. She had slave statutes; but\nnone designating the slaves so as to distinguish them from the rest of\nher population. She had also one or more specific provisions in her\nconstitution incompatible with slavery, to wit: \"That the common law of\nEngland* * * * _shall remain in force_, until altered by a future law\nof the legislature; such parts only as are repugnant to the rights and\nprivileges contained in this charter.\" (Sec. 22.)\n\nMaryland had also, in her new constitution, a specific provision\nincompatible with the acts on her colonial statute book in regard to\nslavery, to wit:\n\n\"Sec. 3. That the _inhabitants_\"--mark the word, for it includes _all_\nthe inhabitants--\"that the _inhabitants_ of Maryland are entitled to the\ncommon law of England, and the trial by jury, according to the course of\nthat law,\" &c.\n\nThis guaranty, of \"the common law of England\" to _all_ \"the inhabitants\nof Maryland,\" without discrimination, is incompatible with any slave\nacts that existed on the statute book; and the latter would therefore\nhave become void under the constitution, even if they had not been\npreviously void under the colonial charter.\n\n4. Several of these state constitutions have used the words \"free\" and\n\"freemen.\"\n\nFor instance. That of South Carolina provided, (Sec. 13,) that the\nelectors of that state should be \"_free_ white men.\" That of Georgia\n(Art. 11,) and that of North Carolina (Art. 40,) use the term \"free\ncitizen.\" That of Pennsylvania (Sec. 42,) has the term \"free denizen.\"\n\nThese four instances are the only ones I have found in all the eleven\nconstitutions, where any class of persons are designated by the term\n\"free.\" And it will be seen hereafter, from the connexion and manner in\nwhich the word is used, in these four cases, that it implies no\nrecognition of slavery.\n\nSeveral of the constitutions, to wit, those of Georgia, South Carolina,\nNorth Carolina, Maryland, Delaware, Pennsylvania, New-York--but not\nVirginia, New-Jersey, Massachusetts or New-Hampshire--repeatedly use the\nword \"freeman\" or \"freemen,\" when describing the electors, or other\nmembers of the state.\n\nThe only questions that can arise from the use of these words \"free\" and\n\"freeman,\" are these, viz: Are they used as the correlatives, or\nopposites of slaves? Or are they used in that political sense, in which\nthey are used in the common law of England, and in which they had been\nused in the colonial charters, viz., to describe those persons possessed\nof the privilege of citizenship, or some corporate franchise, as\ndistinguished from aliens, and those not enjoying franchises, although\nfree from personal slavery?\n\nIf it be answered, that they are used in the sense first mentioned, to\nwit, as the correlatives or opposites of slavery--then it would be\nargued that they involved a recognition, at least, of the existence of\nslavery.\n\nBut this argument--whatever it might be worth to support an implied\nadmission of the _actual_ existence of slavery--would be entirely\ninsufficient to support an implied admission either of its _legal_, or\nits _continued_ existence. Slavery is so entirely contrary to natural\nright; so entirely destitute of authority from natural law; so palpably\ninconsistent with all the legitimate objects of government, that nothing\nbut express and explicit provision can be recognized, in law, as giving\nit any sanction. No hints, insinuations, or unnecessary implications can\ngive any ground for so glaring a departure from, and violation of all\nthe other, the general, and the legitimate principles of the government.\nIf, then, it were admitted that the words \"free\" and \"freemen\" were used\nas the correlatives of slaves, still, of themselves, the words would\ngive no direct or sufficient authority for laws establishing or\ncontinuing slavery. To call one man free, gives no legal authority for\nmaking another man a slave. And if, as in the case of these\nconstitutions, no express authority for slavery were given, slavery\nwould be as much unconstitutional as though these words had not been\nused. The use of these words in that sense, in a constitution, under\nwhich all persons are presumed to be free, would involve no absurdity,\nalthough it might be gratuitous and unnecessary.\n\nIt is a rule of law, in the construction of all statutes, contracts and\nlegal instruments whatsoever--_that is, those which courts design, not\nto invalidate, but to enforce_--that where words are susceptible of two\nmeanings, one consistent, and the other inconsistent, with liberty,\njustice and right, that sense is always to be adopted, which is\nconsistent with right, unless there be something in other parts of the\ninstrument sufficient to prove that the other is the true meaning. In\nthe case of no one of all these early state constitutions, is there any\nthing in the other parts of them, to show that these words \"free\" and\n\"freemen\" are used as the correlatives of slavery. The rule of law,\ntherefore, is imperative that they must be regarded in the sense\nconsistent with liberty and right.\n\nIf this rule, that requires courts to give an innocent construction to\nall words that are susceptible of it, were not imperative, courts might,\nat their own pleasure, pervert the honest meaning of the most honest\nstatutes and contracts, into something dishonest, for there are almost\nalways words used in the most honest legislation, and in the most honest\ncontracts, that, by implication or otherwise, are capable of conveying\nmore than one meaning, and even a dishonest meaning. If courts _could_\nlawfully depart from the rule, that requires them to attribute an honest\nmeaning to all language that is susceptible of such a meaning, it would\nbe nearly impossible to frame either a statute or a contract, which the\njudiciary might not _lawfully_ pervert to some purpose of injustice.\nThere would obviously be no security for the honest administration of\nany honest law or contract whatsoever.\n\nThis rule applies as well to constitutions as to contracts and statutes;\nfor constitutions are but contracts between the people, whereby they\ngrant authority to, and establish law for the government.\n\nWhat other meaning, then, than as correlatives of slavery, are the words\n\"free\" and \"freemen\" susceptible of, as they are used in the early state\nconstitutions?\n\nAmong the definitions given by Noah Webster are these:\n\n\"_Freeman._ One who enjoys, or is entitled to a franchise or peculiar\nprivilege; as the freemen of a city or state.\"\n\n\"_Free._ Invested with franchises; enjoying certain immunities; with\nof--as a man _free_ of the city of London.\"\n\n\"Possessing without vassalage, or slavish conditions; as a man _free_ of\nhis farm--\"\n\nIn England, and in the English law throughout, as it existed before and\nsince the emigration of our ancestors to this country, the words \"free\"\nand \"freemen\" were political terms in the most common use; and employed\nto designate persons enjoying some franchise or privilege, from the most\nimportant one of general citizenship in the nation, to the most\ninsignificant one in any incorporated city, town or company. For\ninstance: A man was said to be a \"free British subject\"--meaning thereby\nthat he was a naturalized or native born citizen of the British\ngovernment, as distinguished from an alien, or person neither\nnaturalized nor native born.\n\nAgain. A man was said to be \"free of a particular trade in the city of\nLondon\"--meaning thereby, that by the bye-laws of the city of London, he\nwas permitted to follow that trade--a privilege which others could not\nhave without having served an apprenticeship in the city, or having\npurchased the privilege of the city government.\n\nThe terms \"free\" and \"freemen\" were used with reference to a great\nvariety of privileges, which, in England, were granted to one man, and\nnot to another. Thus members of incorporated companies were called\n\"_freemen_ of the company,\" or \"_free_ members of the company;\" and were\nsaid to be \"_free_ of the said company.\" The citizens of an incorporated\ncity were called \"the freemen of the city,\" as \"freemen of the city of\nLondon.\"\n\nIn Jacob's Law Dictionary the following definitions, among others, are\ngiven of the word \"freemen.\"\n\n\"_Freeman--liber homo._\"* * * * \"In the distinction of a freeman from a\nvassal under the feudal policy, _liber homo_ was commonly opposed to\n_vassus_, or _vassalus_; the former denoting an _allodial_ proprietor;\nthe latter one who held of a superior.\"\n\n\"The title of a _freeman_ is also given to any one admitted to the\nfreedom of a corporate town, or of any other corporate body, consisting,\namong other members, of those called _freemen_.\"\n\n\"There are three ways to be a _freeman_ of London; by servitude of an\napprenticeship; by birthright, as being the son of a _freeman_; and by\nredemption, i.e. by purchase, under an order of the court of aldermen.\"\n\n\"The customs of the city of London shall be tried by the certificate of\nthe Mayor and Aldermen,* * * * as the custom of distributing the effects\nof freemen deceased: of enrolling apprentices, or that he who is _free\nof one trade_ may use another.\"\n\n\"Elections of aldermen and common-councilmen are to be by _freemen_\nhouseholders.\"\n\n\"An agreement on marriage, that the husband shall take up the freedom of\nLondon, binds the distribution of the effects.\"\n\nThe foregoing and other illustrations of the use of the words \"free\" and\n\"freemen,\" may be found in Jacob's Law Dictionary, under the head of\nFreeman, London, &c.\n\nAnd this use of these words has been common in the English laws for\ncenturies. The term \"freeman\" is used in Magna Charta, (1215). The\nEnglish statutes abound with the terms, in reference to almost every\nfranchise or peculiar privilege, from the highest to the lowest, known\nto the English laws. It would be perfectly proper, and in consonance\nwith the legal meaning and common understanding of the term, to say of\nVictoria, that \"she is free of the throne of England,\" and of a cobbler,\nthat he \"is free of his trade in the city of London.\"\n\nBut the more common and important signification of the words is to\ndesignate the _citizens_, native or naturalized, and those specially\nentitled, as a matter of political and acknowledged right, to\nparticipate in, or be protected by the government, as distinguished from\naliens, or persons attainted, or deprived of their political privileges\nas members of the state. Thus they use the term \"free British\nsubject\"--\"freeman of the realm,\" &c. In short, the terms, when used in\npolitical papers, have a meaning very nearly, if not entirely\nsynonymous, with that which we, in this country, now give to the word\n_citizen_.\n\nBut throughout the English law, and among all the variety of ways, in\nwhich the words \"free\" and \"freemen\" are used, as _legal_ terms, they\nare _never used as the correlatives, or opposites of slaves or\nslavery_--and for the reason that they have in England no such persons\nor institutions, known to their laws, as slaves or slavery. The use of\nthe words \"free\" and \"freemen,\" therefore, do not in England at all\nimply the existence of slaves or slavery.\n\nThis use of the words \"free\" and \"freemen,\" which is common to the\nEnglish law, was introduced into this country at its first settlement,\nin all, or very nearly all the colonial charters, patents, &c. and\ncontinued in use, in this sense, until the time of the revolution; and,\nof course, until the adoption of the first state constitutions.[15]\n\nThe persons and companies, to whom the colonial charters were granted,\nand those who were afterwards to be admitted as their associates, were\ndescribed as \"freemen of said colony,\" \"freemen of said province,\"\n\"freeman of said company,\" \"freemen of the said company and body\npolitick,\" &c. (See charter of Rhode Island.)\n\nMany, if not all the charters had a provision similar in substance to\nthe following in the charter to Rhode Island, viz:\n\n   \"That all and every the subjects of us, our heirs and successors,\"\n   (i.e. of the king of England granting the charter,) \"which are\n   already planted and settled within our said colony of Providence\n   Plantations, or which shall hereafter go to inhabit within the said\n   colony, and all and every of their children which have been born\n   there, or which shall happen hereafter to be born there, or on the\n   sea going thither, or returning from thence, shall have and enjoy all\n   liberties and immunities of _free_ and natural subjects, within any\n   of the dominions of us, our heirs and successors, to all intents,\n   constructions and purposes whatsoever, as if they and every of them\n   were born within the realm of England.\"\n\nThe following enactment of William Penn, as proprietary and Governor of\nthe Province of Pennsylvania and its territories, illustrates one of the\ncommon uses of the word \"freeman,\" as known to the English law, and as\nused in this country prior to the revolution--that is, as distinguishing\na native born citizen, and one capable of holding real estate, &c. from\na foreigner, _not naturalized_, and on that account subject to certain\ndisabilities, such as being incompetent to hold real estate.\n\n   \"And forasmuch as it is apparent that the just encouragement of the\n   inhabitants of the province, and territories thereunto belonging, is\n   likely to be an effectual way for the improvement thereof; and since\n   some of the people that live therein and are likely to come\n   thereunto, _are foreigners, and so not freemen, according to the\n   acceptation of the laws of England, the consequences of which may\n   prove very detrimental to them in their estates and traffic_, and so\n   injurious to the prosperity of this province and territories thereof.\n   _Be it enacted_, by the proprietary and governor of the province and\n   counties aforesaid, by and with the advice and consent of the\n   deputies of the _freemen_ thereof, in assembly met, _That all persons\n   who are strangers and foreigners_, that do now inhabit this province\n   and counties aforesaid, _that hold land in fee in the same, according\n   to the law of a freeman_, and who shall solemnly promise, within\n   three months after the publication thereof, in their respective\n   county courts where they live, upon record, faith and allegiance to\n   the king of England and his heirs and successors, and fidelity and\n   lawful obedience to the said William Penn, proprietary and governor\n   of the said province and territories, and his heirs and assigns,\n   according to the king's letters, patents and deed aforesaid, _shall\n   be held and reputed freemen of the province and counties aforesaid,\n   in as ample and full a manner as any person residing therein_. And it\n   is hereby further enacted, by the authority aforesaid, That when at\n   any time any person, that is a foreigner, shall make his request to\n   the proprietary and governor of this province and territories\n   thereof, _for the aforesaid freedom_, the said person shall be\n   admitted on the conditions herein expressed, paying at his admission\n   twenty shillings sterling, and no more, any thing in this law, or any\n   other law, act or thing in this province, to the contrary in any wise\n   notwithstanding.\"\n\n   \"Given at Chester,\" &c., \"under the hand and broad seal of William\n   Penn, proprietary and governor of this province and territories\n   thereunto belonging, in the second year of his government, by the\n   king's authority. W. PENN.\"[16]\n\nUp to the time of our revolution, the _only_ meaning which the words\n\"free\" and \"freemen\" had, in the English law, _in the charters granted\nto the colonies_, and in the important documents of a political\ncharacter, when used to designate one person as distinguished from\nanother, was to designate a person enjoying some franchise or privilege,\nas distinguished from aliens or persons not enjoying a similar\nfranchise. They were never used to designate a free person as\ndistinguished from a slave--for the very sufficient reason that all\nthese _fundamental_ laws presumed that there were no slaves.\n\nWas such the meaning of the words \"free\" and \"freemen,\" as used in the\nconstitutions adopted prior to 1789, in the States of Georgia, North and\nSouth Carolina, Maryland, Delaware and New York?\n\nThe legal rule of interpretation before mentioned, viz: that an innocent\nmeaning must be given to all words that are susceptible of it--would\ncompel us to give the words this meaning, instead of a meaning merely\ncorrelative with slavery, even if we had no other ground than the rule\nalone, for so doing. But we have other grounds. For instance:--Several\nof these constitutions have themselves explicitly given to the words\nthis meaning. While not one of them have given them a meaning\ncorrelative with slaves, inasmuch as none of them purport either to\nestablish, authorize, or even to know of the existence of slavery.\n\nThe constitution of Georgia (adopted in 1777) evidently uses the word\n\"free\" in this sense, in the following article:\n\n   \"Art. 11. No person shall be entitled to more than one vote, which\n   shall be given in the county where such person resides, except as\n   before excepted; _nor shall any person who holds any title of\n   nobility, be entitled to a vote, or be capable of serving as a\n   representative, or hold any post of honor, profit, or trust, in this\n   State, while such person claims his title of nobility; but if the\n   person shall give up such distinction_, in the manner as may be\n   directed by any future legislature, _then, and in such case_, he\n   shall be entitled to a _vote, and represent_, as before directed, and\n   enjoy all the other benefits of a FREE citizen.\"\n\nThe constitution of North Carolina, (adopted in 1776), used the word in\na similar sense, as follows:\n\n   \"40. That every _foreigner_, who comes to settle in this State,\n   having first taken an oath of allegiance to the same, may purchase,\n   or by other just means acquire, hold, and transfer land, or other\n   real estate, _and after one year's residence_ be deemed a FREE\n   citizen.\"\n\nThis constitution also repeatedly uses the word \"freeman;\" meaning\nthereby \"a free citizen,\" as thus defined.\n\nThe constitution of Pennsylvania, (adopted in 1776,) uses the word in\nthe same sense:\n\n   \"Sec. 42. Every _foreigner_, of good character, who comes to settle\n   in this State, having first taken an oath or affirmation of\n   allegiance to the same, may purchase, or by other just means acquire,\n   hold and transfer land or other real estate; _and after one year's\n   residence, shall be deemed a_ FREE _denizen thereof_, and entitled to\n   all the rights of a natural born subject of this state, except that\n   he shall not be capable of being elected a representative until after\n   two year's residence.\"\n\nThe constitution of New York, (adopted in 1777,) uses the word in the\nsame manner:\n\n   \"Sec. 6. That every male inhabitant of full age, who has personally\n   resided in one of the counties of this state for six months,\n   immediately preceding the day of election, shall at such election be\n   entitled to vote for representatives of the said county in assembly,\n   if during the time aforesaid he shall have been a freeholder,\n   possessing a freehold of the value of twenty pounds, within the said\n   county, or have rented a tenement therein of the yearly value of\n   forty shillings, and been rated and actually paid taxes to the State.\n   _Provided always_, That every person who now is a _freeman of the\n   city of Albany, or who was made a freeman of the city of New York_,\n   on or before the fourteenth day of October, in the year of our Lord\n   one thousand seven hundred and seventy-five, and shall be actually\n   and usually resident in the said cities respectively, shall be\n   entitled to vote for representatives in assembly within his place of\n   residence.\"\n\nThe constitution of South Carolina, (formed in 1778,) uses the word\n\"free\" in a sense which may, at first thought, be supposed to be\ndifferent from that in which it is used in the preceding cases:\n\n   Sec. 13. The qualification of electors shall be that \"every _free\n   white man_, and no other person,\" &c., \"shall be deemed a person\n   qualified to vote for, and shall be capable of being elected a\n   representative.\"\n\nIt may be supposed that here the word \"free\" is used as the correlative\nof slavery; that it presumes the \"whites\" to be \"free;\" and that it\ntherefore implies that other persons than \"white\" may be slaves. Not so.\nNo other parts of the constitution authorize such an inference; and the\nimplication from the words themselves clearly is, that _some_ \"white\"\npersons might not be \"free.\" The distinction implied is between those\n\"white\" persons that were \"free,\" and those that were not \"free.\" If\nthis were not the distinction intended, and if _all_ \"white\" persons\nwere \"free,\" it would have been sufficient to have designated the\nelectors simply as \"white\" persons, instead of designating them as both\n\"free\" and \"white.\" If therefore it were admitted that the word \"free,\"\nin this instance, were used as the correlative of slaves, the\nimplication would be that _some_ \"white\" persons were, or might be\nslaves. There is therefore no alternative but to give to the word\n\"free,\" in this instance, the same meaning that it has in the\nconstitutions of Georgia, North Carolina and Pennsylvania.\n\nIn 1704 South Carolina passed an act entitled, \"_An act for making\naliens FREE of this part of the Province._\"--This statute remained in\nforce until 1784, when it was repealed by an act entitled \"_An act to\nconfer the right of citizenship on aliens_\"[17]\n\nOne more example of this use of the word \"_freeman_.\" The constitution\nof Connecticut, adopted as late as 1818, has this provision:\n\n   \"Art. 6. Sec. 1. All persons who have been, or _shall hereafter_,\n   previous to the ratification of this constitution, _be admitted\n   freemen_, according to the existing laws of this State, shall be\n   electors.\"\n\nSurely no other proof can be necessary of the meaning of the words\n\"free\" and \"freeman,\" as used in the constitutions existing in 1789; or\nthat the use of those words furnish no implication in support of either\nthe 'existence', or the constitutionality of slavery, prior to the\nadoption of the constitution of the United States in that year.\n\nI have found, in _none_ of the State constitutions before mentioned,\n(existing in 1789,) any other evidence or intimation of the existence of\nslavery, than that already commented upon and refuted. And if there be\nno other, then it is clear that slavery had no legal existence under\nthem. And there was consequently no _constitutional_ slavery in the\ncountry up to the adoption of the constitution of the United States.\n\n[Footnote 14: The State Constitutions of 1789 were adopted as follows:\nGeorgia, 1777; South Carolina, 1778; North Carolina, 1776; Virginia,\n1776; Maryland, 1776; Delaware, 1776; Pennsylvania, 1776; New Jersey,\n1776; New York, 1777; Massachusetts, 1780; New Hampshire, 1783.\n\nThese early Constitutions ought to be collected and published with\nappropriate notes.]\n\n[Footnote 15: Since that time the words \"free\" and \"freemen\" have been\ngradually falling into disuse, and the word citizen been\nsubstituted--doubtless for the reason that it is not pleasant to our\npride or our humanity to use words, one of whose significations serves\nto suggest a contrast between ourselves and slaves.]\n\n[Footnote 16: Dallas's edition of the Laws of Pennsylvania, vol. 1,\nAppendix, page 25.]\n\n[Footnote 17: Cooper's edition of the Laws of South Carolina, vols. 2\nand 4. \"Aliens,\"]\n\n\n\n\nCHAPTER VII.\n\nTHE ARTICLES OF CONFEDERATION.\n\n\nThe Articles of Confederation, (formed in 1778,) contained no\nrecognition of slavery. The only words in them, that could be claimed by\nany body as recognizing slavery, are the following, in Art. 4, Sec. 1.\n\n   \"The better to secure and perpetuate mutual friendship and\n   intercourse among the people of the different States in this Union,\n   _the free inhabitants_ of each of these States, paupers, vagabonds\n   and fugitives from justice excepted, shall be entitled to all the\n   privileges and immunities of _free citizens_ in the several States;\n   and _the people_ of each State shall have free ingress and regress to\n   and from any other State, and shall enjoy therein all the privileges\n   of trade and commerce, subject to the same duties, impositions and\n   restrictions, as the inhabitants thereof respectively.\"\n\nThere are several reasons why this provision contains no legal\nrecognition of slavery.\n\n1. The true meaning of the word \"free,\" as used in the English law, in\nthe colonial charters, and in the State constitutions up to this time,\nwhen applied to persons, was to describe citizens, or persons possessed\nof franchises, as distinguished from aliens or persons not possessed of\nthe same franchises. Usage, then, would give this meaning to the word\n\"free\" in this section.\n\n2. The rules of law require that an innocent meaning should be given to\nall words that will bear an innocent meaning.\n\n3. The Confederation was a league between states in their corporate\ncapacity; and not, like the constitution, a government established by\nthe people in their individual character. The confederation, then, being\na league between states or corporations, as such, of course recognized\nnothing in the character of the state governments except what their\ncorporate charters or state constitutions authorized. And as none of the\nstate constitutions of the day recognized slavery, the confederation of\nthe state governments could not of course recognize it. Certainly none\nof its language can, consistently with legal rules, have such a meaning\ngiven to it, when it is susceptible of another that perfectly accords\nwith the sense in which it is used in the constitutions of the states,\nthat were parties to the league.\n\n4. No other meaning can be given to the word \"free\" in this case,\nwithout making the sentence an absurd, or, at least, a foolish and\ninconsistent one. For instance,--The word \"free\" is joined to the word\n\"citizen.\" What reason could there be in applying the term \"free\" to the\nword \"citizen,\" if the word \"free\" were used as the correlative of\nslavery? Such an use of the word would imply that _some_ of the\n\"citizens\" were, or might be slaves--which would be an absurdity. But\nused in the other sense, it implies only that some citizens had\nfranchises not enjoyed by others; such, perhaps, as the right of\nsuffrage, and the right of being elected to office; which franchises\nwere only enjoyed by a part of the \"citizens.\" All who were born of\nEnglish parents, for instance, were \"citizens,\" and entitled to the\nprotection of the government, and freedom of trade and occupation, &c.,\n&c., and in these respects were distinguished from aliens.--Yet a\nproperty qualification was necessary, in some, if not all the States, to\nentitle even such to the franchises of suffrage, and of eligibility to\noffice.\n\nThe terms \"free inhabitants\" and \"people\" were probably used as\nsynonymous either with \"free citizens,\" or with \"citizens\" not\n\"free\"--that is, not possessing the franchises of suffrage and\neligibility to office.\n\nMr. Madison, in the 42d No. of the Federalist, in commenting upon the\npower given to the general government by the new constitution, of\nnaturalizing aliens, refers to this clause in the Articles of\nConfederation; and takes it for granted that the word \"free\" was used in\nthat political sense, in which I have supposed it to be used--that is,\nas distinguishing \"citizens\" and the \"inhabitants\" or \"people\" proper,\nfrom aliens and persons not allowed the franchises enjoyed by the\n\"inhabitants\" and \"people\" of the States.--Even the privilege of\nresidence he assumes to be a franchise entitling one to the denomination\nof \"free.\"\n\n   He says: \"The dissimilarity in the rules of naturalization,\" (i.e. in\n   the rules established by the separate states, for under the\n   confederation each state established its own rules of\n   naturalization,) \"has long been remarked as a fault in our system,\n   and as laying a foundation for intricate and delicate questions. In\n   the fourth article of confederation, it is declared, 'that the _free\n   inhabitants_ of each of these states, paupers, vagabonds, and\n   fugitives from justice excepted, shall be entitled to all the\n   privileges and immunities of _free citizens_ in the several states;\n   and _the people_ of each state shall, in every other, enjoy all the\n   privileges of trade and commerce,' &c. There is a confusion of\n   language here, which is remarkable. Why the terms _free inhabitants_\n   are used in one part of the article, _free citizens_ in another, and\n   _people_ in another; or what was meant by superadding to 'all\n   privileges and immunities of free citizens,' 'all the privileges of\n   trade and commerce,' cannot easily be determined. It seems to be a\n   construction scarcely avoidable, however, that those who come under\n   the denomination of _free inhabitants_ of a state, although not\n   citizens of such state, are entitled, in every other state, to all\n   the privileges of _free citizens_ of the latter; that is, to greater\n   privileges than they may be entitled to in their own state; so that\n   it may be in the power of a particular state, or rather every state\n   is laid under the necessity, not only to confer the rights of\n   citizenship in other states upon any whom it may admit to such rights\n   within itself, but upon any whom it may allow to become inhabitants\n   within its jurisdiction. But were an exposition of the term\n   'inhabitant' to be admitted, which would confine the stipulated\n   privileges to citizens alone, the difficulty is diminished only, not\n   removed. The very improper power would still be retained by each\n   state, of naturalizing aliens in every other state. In one state,\n   residence for a short time confers all the rights of citizenship; in\n   another, qualifications of greater importance are required. An alien,\n   therefore, legally incapacitated for certain rights in the latter,\n   may, by previous residence only in the former, elude his incapacity,\n   and thus the law of one state be preposterously rendered paramount to\n   the laws of another, within the jurisdiction of the other.\n\n   \"We owe it to mere casualty, that very serious embarrassments on this\n   subject have been hitherto escaped. By the laws of several states,\n   certain description of aliens, who had rendered themselves obnoxious,\n   were laid under interdicts inconsistent, not only with the rights of\n   citizenship, but with the privileges of residence. What would have\n   been the consequence, if such persons, by residence, or otherwise,\n   had acquired the character of citizens under the laws of another\n   state, and then asserted their rights as such, both to residence and\n   citizenship, within the state proscribing them? Whatever the legal\n   consequences might have been, other consequences would probably have\n   resulted of too serious a nature, not to be provided against. The new\n   constitution has accordingly, with great propriety, made provision\n   against them, and all others proceeding from the defect of the\n   confederation on this head, by authorizing the general government to\n   establish an uniform rule of naturalization throughout the United\n   States.\"\n\nThroughout this whole quotation Mr. Madison obviously takes it for\ngranted that the word \"free\" is used in the articles of confederation,\nas the correlative of aliens.--And in this respect he no doubt correctly\nrepresents the meaning then given to the word by the people of the\nUnited States. And in the closing sentence of the quotation, he\nvirtually asserts that such is the meaning of the word \"free\" in \"the\nnew constitution.\"\n\n\n\n\nCHAPTER VIII.\n\nTHE CONSTITUTION OF THE UNITED STATES.\n\n\nWe come now to the period commencing with the adoption of the\nconstitution of the United States.\n\nWe have already seen that slavery had not been authorized or established\nby any of the fundamental constitutions or charters that had existed\nprevious to this time; that it had always been a mere abuse sustained by\nthe common consent of the strongest party, in defiance of the avowed\nconstitutional principles of their governments. And the question now is,\nwhether it was constitutionally established, authorized or sanctioned by\nthe constitution of the United States?\n\nIt is perfectly clear, in the first place, that the constitution of the\nUnited States did not, _of itself, create or establish_ slavery as a\n_new_ institution; or even give any authority to the state governments\nto establish it as a new institution.--The greatest sticklers for\nslavery do not claim this. The most they claim is, that it recognized it\nas an institution already legally existing, under the authority of the\nstate governments; and that it virtually guarantied to the states the\nright of continuing it in existence during their pleasure. And this is\nreally the only question arising out of the constitution of the United\nStates on this subject, viz: whether it _did_ thus recognize and\nsanction slavery as an _existing_ institution?\n\nThis question is, in reality, answered in the negative by what has\nalready been shown; for if slavery had no constitutional existence,\nunder the state constitutions, prior to the adoption of the constitution\nof the United States, then it is absolutely certain that the\nconstitution of the United States did _not_ recognize it as a\nconstitutional institution; for it cannot, of course, be pretended that\nthe United States constitution recognized, as constitutional, any state\ninstitution that did not constitutionally exist.\n\nEven if the constitution of the United States had _intended_ to\nrecognize slavery, as a constitutional _state_ institution, such\nintended recognition would have failed of effect, and been legally void,\nbecause slavery then had no constitutional existence to be recognized.\n\nSuppose, for an illustration of this principle, that the constitution of\nthe United States had, by implication, plainly taken it for granted that\nthe state legislatures had power--derived from the _state_\nconstitutions--to order arbitrarily that infant children, or that men\nwithout the charge of crime, should be maimed--deprived, for instance,\nof a hand, a foot, or an eye. This intended recognition, on the part of\nthe constitution of the United States, of the legality of such a\npractice, would obviously have failed of all legal effect--would have\nbeen mere surplussage--if it should appear, from an examination of the\nstate constitutions themselves, that they had really conferred no such\npower upon the legislatures. And this principle applies with the same\nforce to laws that would arbitrarily make men or children slaves, as to\nlaws that should arbitrarily order them to be maimed or murdered.\n\nWe might here safely rest the whole question--for no one, as has already\nbeen said, pretends that the constitution of the United States, by its\nown authority, created or authorized slavery as a new institution; but\nonly that it intended to recognize it as one already established by\nauthority of the state constitutions. This intended recognition--if\nthere were any such--being founded on an error as to what the state\nconstitutions really did authorize, necessarily falls to the ground, a\ndefunct intention.\n\nWe make a stand, then, at this point, and insist that the main\nquestion--the only material question--is already decided against\nslavery; and that it is of no consequence what recognition or sanction\nthe constitution of the United States may have intended to extend to it.\n\nThe constitution of the United States, at its adoption, certainly took\neffect upon, and made citizens of _all_ \"the people of the United\nStates,\" who were _not slaves_ under the state constitutions. No one can\ndeny a proposition so self-evident as that. If, then, the _State_\nconstitutions, then existing, authorized no slavery at all, the\nconstitution of the United States took effect upon, and made citizens of\n_all_ \"the people of the United States,\" without discrimination. And if\n_all_ \"the people of the United States\" were made citizens of the United\nStates, by the United States constitution, at its adoption, it was then\nforever too late for the _state_ governments to reduce any of them to\nslavery. They were thenceforth citizens of a higher government, under a\nconstitution that was \"the supreme law of the land,\" \"any thing in the\nconstitution or laws of the states to the contrary notwithstanding.\" If\nthe state governments could enslave citizens of the United States, the\nstate constitutions, and not the constitution of the United States,\nwould be the \"supreme law of the land\"--for no higher act of supremacy\ncould be exercised by one government over another, than that of taking\nthe citizens of the latter out of the protection of their government,\nand reducing them to slavery.\n\n\nSECONDLY.\n\nAlthough we might stop--we yet do not choose to stop--at the point last\nsuggested. We will now go further, and attempt to show, specifically\nfrom its provisions, that the constitution of the United States, not\nonly does not recognize or sanction slavery, as a legal institution, but\nthat, on the contrary, it presumes all men to be free; that it\npositively denies the right of property in man; and that it, _of\nitself_, makes it impossible for slavery to have a legal existence in\nany of the United States.\n\nIn the first place--although the assertion is constantly made, and\nrarely denied, yet it is palpably a mere begging of the whole question\nin favor of slavery, to say that the constitution _intended_ to sanction\nit; for if it _intended_ to sanction it, it _did_ thereby necessarily\nsanction it, (that is, if slavery then had any constitutional existence\nto be sanctioned.) The _intentions_ of the constitution are the only\nmeans whereby it sanctions any thing. And its intentions necessarily\nsanction everything to which they apply, and which, in the nature of\nthings, they are competent to sanction. To say, therefore, that the\nconstitution _intended_ to sanction slavery, is the same as to say that\nit _did_ sanction it; which is begging the whole question, and\nsubstituting mere assertion for proof.\n\nWhy, then, do not men say distinctly, that the constitution _did_\nsanction slavery, instead of saying that it _intended_ to sanction it?\nWe are not accustomed to use the word \"_intention_,\" when speaking of\nthe other grants and sanctions of the constitution. We do not say, for\nexample, that the constitution _intended_ to authorize congress \"to coin\nmoney,\" but that it _did_ authorize them to coin it. Nor do we say that\nit intended to authorize them \"to declare war;\" but that it did\nauthorize them to declare it. It would be silly and childish to say\nmerely that it _intended_ to authorize them \"to coin money,\" and \"to\ndeclare war,\" when the language authorizing them to do so, is full,\nexplicit and positive. Why, then, in the case of slavery, do men say\nmerely that the constitution _intended_ to sanction it, instead of\nsaying distinctly, as we do in the other cases, that it _did_ sanction\nit? The reason is obvious. If they were to say unequivocally that it\n_did_ sanction it, they would lay themselves under the necessity of\npointing to the _words_ that sanction it; and they are aware that the\n_words alone_ of the constitution do not come up to that point. They,\ntherefore, assert simply that the constitution _intended_ to sanction\nit; and they then attempt to support the assertion by quoting certain\nwords and phrases, which they say are _capable_ of covering, or rather\nof concealing such an intention; and then by the aid of exterior,\ncircumstantial and historical evidence, they attempt to enforce upon the\nmind the conclusion that, as matter of fact, such was the intention of\nthose who _drafted_ the constitution; and thence they finally infer that\nsuch was the intention of the constitution itself.\n\nThe error and fraud of this whole procedure--and it is one purely of\nerror and fraud--consists in this--that it artfully substitutes the\nsupposed intentions of those who drafted the constitution, for the\nintentions of the constitution itself; and, secondly, it personifies the\nconstitution as a crafty individual; capable of both open and secret\nintentions; capable of legally participating in, and giving effect to\nall the subtleties and double dealing of knavish men; and as actually\nintending to secure slavery, while openly professing to \"secure and\nestablish liberty and justice.\" It personifies the constitution as an\nindividual capable of having private and criminal intentions, which it\ndare not distinctly avow, but only darkly hint at, by the use of words\nof an indefinite, uncertain and double meaning, whose application is to\nbe gathered from external circumstances.\n\nThe falsehood of all these imaginings is apparent, the moment it is\nconsidered that the constitution is not a _person_, of whom an\n\"intention,\" not legally expressed, can be asserted; that it has none of\nthe various and selfish passions and motives of action, which sometimes\nprompt _men_ to the practice of duplicity and disguise; that it is\nmerely a written legal instrument; that, as such, it must have a fixed,\nand not a double meaning; that it is made up entirely of intelligible\nwords; and that it has, and _can_ have, no soul, no \"_intentions_,\" no\nmotives, no being, no personality, except what those words alone express\nor imply. Its \"intentions\" are nothing more nor less than the legal\nmeaning of its words. Its intentions are no guide to its legal\nmeaning--as the advocates of slavery all assume; but its legal meaning\nis the sole guide to its intentions. This distinction is all important\nto be observed; for if we can gratuitously assume the intentions of a\nlegal instrument to be what we may wish them to be, and can then strain\nor pervert the ordinary meaning of its words, in order to make them\nutter those intentions, we can make any thing we choose of any legal\ninstrument whatever. The legal meaning of the words of an instrument is,\ntherefore, necessarily our only guide to its intentions.\n\nIn ascertaining the legal meaning of the words of the constitution,\nthese rules of law, (the reasons of which will be more fully explained\nhereafter,) are vital to be borne constantly in mind, viz: 1st, that no\nintention in violation of natural justice and natural right, (like that\nto sanction slavery,) can be ascribed to the constitution, unless that\nintention be expressed in terms that are _legally competent_ to express\nsuch an intention; and, 2d, that no terms, except those that are\nplenary, express, explicit, distinct, unequivocal, _and to which no\nother meaning can be given, are legally competent_ to authorize or\nsanction any thing contrary to natural right. The rule of law is\nmaterially different as to the terms necessary to legalize and sanction\nany thing contrary to natural right, and those necessary to legalize\nthings that are consistent with natural right. The latter may be\nsanctioned by implication and inference; the former only by inevitable\nimplication, or by language that is full, definite, express, explicit,\nunequivocal, and whose _unavoidable_ import is to sanction the _specific\nwrong_ intended.\n\nTo assert, therefore, that the constitution _intended_ to sanction\nslavery, is, in reality, equivalent to asserting that the _necessary_\nmeaning, the _unavoidable_ import of the _words alone_ of the\nconstitution, come fully up to the point of a clear, definite, distinct,\nexpress, explicit, unequivocal, necessary and peremptory sanction of the\nspecific thing, _human slavery, property in man_. If the _necessary_\nimport of its _words alone_ do but fall an iota short of this point, the\ninstrument gives, and, legally speaking, intended to give no legal\nsanction to slavery. Now, who can, in good faith, say that the _words\nalone_ of the constitution come up to this point? No one, who knows any\nthing of law, and the meaning of words. Not even the name of the thing,\nalleged to be sanctioned, is given. The constitution itself contains no\ndesignation, description, or necessary admission of the existence of\nsuch a thing as slavery, servitude, or the right of property in man. We\nare obliged to go out of the instrument, and grope among the records of\noppression, lawlessness and crime--records unmentioned, and of course\nunsanctioned by the constitution--to _find_ the thing, to which it is\nsaid that the words of the constitution apply. And when we have found\nthis thing, which the constitution dare not name, we find that the\nconstitution has sanctioned it, (if at all,) only by enigmatical words,\nby unnecessary implication and inference, by inuendo and double\nentendre, and under a name that entirely fails of describing the thing.\nEvery body must admit that the constitution itself contains no language,\nfrom which _alone_ any court, that were either strangers to the prior\nexistence of slavery, or that did not assume its prior existence to be\nlegal, could legally decide that the constitution sanctioned it. And\nthis is the true test for determining whether the constitution does, or\ndoes not, sanction slavery, viz: whether a court of law, strangers to\nthe prior existence of slavery, or not assuming its prior existence to\nbe legal--looking only at the naked language of the instrument--could,\nconsistently with legal rules, judicially determine that it sanctioned\nslavery. Every lawyer, who at all deserves that name, knows that the\nclaim for slavery could stand no such test. The fact is palpable, that\nthe constitution contains no such legal sanction; that it is only by\nunnecessary implication and inference, by inuendo and double-entendre,\nby the aid of exterior evidence, the assumption of the prior legality of\nslavery, and the gratuitous imputation of criminal intentions that are\nnot avowed in legal terms, that any sanction of slavery, (as a legal\ninstitution,) can be extorted from it.\n\nBut legal rules of interpretation entirely forbid and disallow all such\nimplications, inferences, inuendos and double-entendre, all aid of\nexterior evidence, all assumptions of the prior legality of slavery, and\nall gratuitous imputations of criminal unexpressed intentions; and\nconsequently compel us to come back to the _letter_ of the instrument,\nand find _there_ a distinct, clear, necessary, peremptory sanction for\nslavery, or to surrender the point.\n\nTo the unprofessional reader these rules of interpretation will appear\nstringent, and perhaps unreasonable and unsound. For his benefit,\ntherefore, the reasons on which they are founded, will be given. And he\nis requested to fix both the reasons and the rules fully in his mind,\ninasmuch as the whole legal meaning of the constitution, in regard to\nslavery, may perhaps be found to turn upon the construction which these\nrules fix upon its language.\n\nBut before giving the reasons of this rule, let us offer a few remarks\nin regard to _legal_ rules of interpretation in general. Many persons\nappear to have the idea that these rules have no foundation in reason,\njustice or necessity; that they are little else than whimsical and\nabsurd conceits, arbitrarily adopted by the courts. No idea can be more\nerroneous than this. The rules are absolutely indispensable to the\nadministration of the justice arising out of any class of legal\ninstruments whatever--whether the instruments be simple contracts\nbetween man and man, or statutes enacted by legislatures, or fundamental\ncompacts or constitutions of government agreed upon by the people at\nlarge. In regard to all these instruments, the _law_ fixes, and\nnecessarily must fix their meaning; and for the obvious reason, that\notherwise their meaning could not be fixed at all. The parties to the\nsimplest contract may disagree, or pretend to disagree, as to its\nmeaning, and of course as to their respective rights under it. The\ndifferent members of a legislative body, who vote for a particular\nstatute, may have different intentions in voting for it, and may\ntherefore differ, or pretend to differ, as to its meaning. The people\nof a nation may establish a compact of government. The motives of one\nportion may be to establish liberty, equality and justice; and they may\nthink, or pretend to think that the words used in the instrument convey\nthat idea. The motives of another portion may be to establish the\nslavery or subordination of one part of the people, and the superiority\nor arbitrary power of the other part; and they may think, or pretend to\nthink, that the language agreed upon by the whole authorizes such a\ngovernment. In all these cases, unless there were some rules of law,\napplicable alike to all instruments, and competent to settle their\nmeaning, their meaning could not be settled; and individuals would of\nnecessity lose their rights under them. _The law, therefore, fixes their\nmeaning_; and the rules by which it does so, are founded in the same\njustice, reason, necessity and truth, as are other legal principles, and\nare for that reason as inflexible as any other legal principles\nwhatever. They are also simple, intelligible, natural, obvious. Every\nbody are presumed to know them, as they are presumed to know any other\nlegal principles. No one is allowed to plead ignorance of them, any more\nthan of any other principle of law. All persons and people are presumed\nto have framed their contracts, statutes and constitutions with\nreference to them. And if they have not done so--if they have said black\nwhen they meant white, and one thing when they meant another, they must\nabide the consequences. The law will presume that they meant what they\nsaid. No one, in a court of justice, can claim any rights founded on a\nconstruction different from that which these rules would give to the\ncontract, statute, or constitution, under which he claims. The judiciary\ncannot depart from these rules, for two reasons. First, because the\nrules embody in themselves principles of justice, reason and truth; and\nare therefore as necessarily law as any other principles of justice,\nreason and truth; and, secondly, because if they could lawfully depart\nfrom them in one case, they might in another, at their own caprice.\nCourts could thus at pleasure become despotic; all certainty as to the\nlegal meaning of instruments would be destroyed; and the administration\nof justice, according to the true meaning of contracts, statutes and\nconstitutions, would be rendered impossible.\n\nWhat, then, are some of these rules of interpretation?\n\nOne of them, (as has been before stated,) is, that where words are\nsusceptible of two meanings, one consistent, and the other inconsistent,\nwith justice and natural right, that meaning, and _only that_ meaning,\nwhich is consistent with right, shall be attributed to them--unless\nother parts of the instrument overrule that interpretation.\n\nAnother rule, (if indeed it be not the same,) is, that no language,\nexcept that which is peremptory, and no implication, except one that is\ninevitable, shall be held to authorize or sanction any thing contrary to\nnatural right.\n\nAnother rule is, that no _extraneous or historical evidence_ shall be\nadmitted to fix upon a statute an unjust or immoral meaning, when the\nwords themselves of the act are susceptible of an innocent one.\n\nOne of the reasons of these stringent and inflexible rules, doubtless\nis, that judges have always known that, in point of fact, natural\njustice was itself law, and that nothing inconsistent with it could be\nmade law, even by the most explicit and peremptory language that\nlegislatures could employ.--But judges have always, in this country and\nin England, been dependent upon the executive and the legislature for\ntheir appointments and salaries, and been amenable to the legislature by\nimpeachment. And as the executive and legislature have always enacted\nmore or less statutes, and had more or less purposes to accomplish, that\nwere inconsistent with natural right, judges have seen that it would be\nimpossible for them to retain their offices, and at the same time\nmaintain the integrity of the law against the will of those in whose\npower they were. It is natural also that the executive should appoint,\nand that the legislature should approve the appointment of no one for\nthe office of judge, whose integrity they should suppose would stand in\nthe way of their purposes.--The consequence has been that all judges,\n(probably without exception,) though they have not dared deny, have yet\nin practice yielded the vital principle of law; and have succumbed to\nthe arbitrary mandates of the other departments of the government, so\nfar as to carry out their enactments, though inconsistent with natural\nright. But, as if sensible of the degradation and criminality of so\ndoing, they have made a stand at the first point at which they could\nmake it, without bringing themselves in a direct collision with those on\nwhom they were dependent. And that point is, that they will administer,\nas law, no statute, that is contrary to natural right, unless its\nlanguage be so explicit and peremptory, that there is no way of evading\nits authority, but by flatly denying the authority of those who enacted\nit. They (the court) will themselves add nothing to the language of the\nstatute, to help out its supposed meaning. They will imply nothing,\ninfer nothing, and assume nothing, except what is inevitable; they will\nnot go out of the letter of the statute in search of any _historical_\nevidence as to the meaning of the legislature, to enable them to\neffectuate any _unjust_ intentions not fully expressed by the statute\nitself. Wherever a statute is supposed to have in view the\naccomplishment of any unjust end, they will apply the most stringent\nprinciples of construction to prevent that object's being effected. They\nwill not go a hair's breadth beyond the literal or inevitable import _of\nthe words_ of the statute, even though they should be conscious, all the\nwhile, that the real intentions of the makers of it would be entirely\ndefeated by their refusal. The rule, (as has been already stated,) is\nlaid down by the supreme court of the United States in these words:\n\n\"Where rights are infringed, where fundamental principles are\noverthrown, where the general system of the law is departed from, the\nlegislative intention must be expressed with _irresistible clearness_,\nto induce a court of justice to suppose a design to effect such\nobjects.\"--(_United States_ vs. _Fisher et al., 2 Cranch_, 390.)[18]\n\nSuch has become the settled doctrine of courts. And although it does not\ncome up to the true standard of law, yet it is good in itself, so far as\nit goes, and ought to be unflinchingly adhered to, not merely for its\nown sake, but also as a scaffolding, from which to erect that higher\nstandard of law, to wit, that no language or authority whatever can\nlegalize any thing inconsistent with natural justice.[19]\n\nAnother reason for the rules before given, against all constructions,\nimplications and inferences--except inevitable ones--in favor of\ninjustice, is, that but for them we should have no guaranty that our\nhonest contracts, or honest laws would be honestly administered by the\njudiciary. It would be nearly or quite impossible for men, in framing\ntheir contracts or laws, to use language so as to exclude every possible\nimplication in favor of wrong, if courts were allowed to resort to such\nimplications. _The law therefore excludes them_; that is, the ends of\njustice--the security of men's rights under their honest contracts, and\nunder honest legislative enactments--make it imperative upon courts of\njustice to ascribe an innocent and honest meaning to all language that\nwill possibly bear an innocent and honest meaning. If courts of justice\ncould depart from this rule for the purpose of upholding what was\ncontrary to natural right, and could employ their ingenuity in spying\nout some implied or inferred authority, for sanctioning what was in\nitself dishonest or unjust, when such was not the _necessary_ meaning of\nthe language used, there could be no security whatever for the honest\nadministration of honest laws, or the honest fulfilment of men's honest\ncontracts. Nearly all language, on the meaning of which courts\nadjudicate, would be liable, at the caprice of the court, to be\nperverted from the furtherance of honest, to the support of dishonest\npurposes. Judges could construe statutes and contracts in favor of\njustice or injustice, as their own pleasure might dictate.\n\nAnother reason of the rules, is, that as governments have, and can have\nno legitimate objects or powers opposed to justice and natural right, it\nwould be treason to all the legitimate purposes of government, for the\njudiciary to give any other than an honest and innocent meaning to any\nlanguage, that would bear such a construction.\n\nThe same reasons that forbid the allowance of any unnecessary\nimplication or inference in favor of a wrong, in the construction of a\nstatute, forbids also the introduction of any _extraneous or historical_\nevidence to prove that the intentions of the legislature were to\nsanction or authorize a wrong.\n\nThe same rules of construction, that apply to statutes, apply also to\nall those private contracts between man and man, _which courts actually\nenforce_. But as it is both the right and the duty of courts to\ninvalidate altogether such private contracts as are inconsistent with\njustice, they will admit evidence exterior to their words, _if offered\nby a defendant for the purpose of invalidating them_. At the same time,\na plaintiff, or party that wishes to set up a contract, or that claims\nits fulfilment, will not be allowed to offer any evidence exterior to\nits words, to prove that the contract is contrary to justice--because,\nif his evidence were admitted, it would not make his unjust claim a\nlegal one; but only invalidate it altogether. But as courts do not claim\nthe right of invalidating statutes and constitutions, they will not\nadmit evidence, exterior to their language, to give them such a\nmeaning, that they ought to be invalidated.\n\nI think no one--no lawyer, certainly--will now deny that it is a legal\nrule of interpretation--that must be applied to all statutes, and also\nto all private contracts _that are to be enforced_--that an innocent\nmeaning, _and nothing beyond an innocent meaning_, must be given to all\nlanguage that will possibly bear such a meaning. All will probably admit\nthat the rule, as laid down by the supreme court of the United States,\nis correct, to wit, that \"where rights are infringed, where fundamental\nprinciples are overthrown, where the general system of the law is\ndeparted from, the legislative intention must be expressed with\n_irresistible clearness_, to induce a court of justice to suppose a\ndesign to effect such objects.\"\n\nBut perhaps it will be said that these rules, which apply to all\nstatutes, and to all private contracts that are to be enforced, do not\napply to the constitution. And why do they not? No reason whatever can\nbe given. A constitution is nothing but a contract, entered into by the\nmass of the people, instead of a few individuals. This contract of the\npeople at large becomes a law unto the judiciary that administer it,\njust as private contracts, (so far as they are consistent with natural\nright,) are laws unto the tribunals that adjudicate upon them. All the\nessential principles that enter into the question of obligation, in the\ncase of a private contract, or a legislative enactment, enter equally\ninto the question of the obligation of a contract agreed to by the whole\nmass of the people. This is too self-evident to need illustration.\n\nBesides, is it not as important to the safety and rights of all\ninterested, that a constitution or compact of government, established by\na whole people, should be so construed as to promote the ends of\njustice, as it is that a private contract or a legislative enactment\nshould be thus construed? Is it not as necessary that some check should\nbe imposed upon the judiciary to prevent them from perverting, at\npleasure, the whole purpose and character of the government, as it is\nthat they should be restrained from perverting the meaning of a private\ncontract, or a legislative enactment? Obviously written compacts of\ngovernment could not be upheld for a day, if it were understood by the\nmass of the people that the judiciary were at liberty to interpret them\naccording to their own pleasure, instead of their being restrained by\nsuch rules as have now been laid down.\n\nLet us now look at some of the provisions of the constitution, and see\nwhat crimes might be held to be authorized by them, if their meaning\nwere not to be ascertained and restricted by such rules of\ninterpretation as apply to all other legal instruments.\n\nThe second amendment to the constitution declares that \"the right of the\npeople to keep and bear arms shall not be infringed.\"\n\nThis right \"to keep and bear arms,\" implies the right to use them--as\nmuch as a provision securing to the people the right to buy and keep\nfood, would imply their right also to eat it. But this implied right to\nuse arms, is only a right to use them in a manner consistent with\nnatural rights--as, for example, in defence of life, liberty, chastity,\n&c. Here is an innocent and just meaning, of which the words are\nsusceptible; and such is therefore the _extent_ of their legal meaning.\nIf courts could go beyond the innocent and necessary meaning of the\nwords, and imply or infer from them an authority for anything contrary\nto natural right, they could imply a constitutional authority in the\npeople to use arms, not merely for the just and innocent purposes of\ndefence, but also for the criminal purposes of aggression--for purposes\nof murder, robbery, or any other acts of wrong to which arms are capable\nof being applied. The mere _verbal_ implication would as much authorize\nthe people to use arms for unjust, as for just, purposes. But the\n_legal_ implication gives only an authority for their innocent use. And\nwhy? Simply because justice is the end of all law--the legitimate end of\nall compacts of government. It is itself law; and there is no right or\npower among men to destroy its obligation.\n\nTake another case. The constitution declares that \"Congress shall have\npower to _regulate commerce_ with foreign nations, and among the several\nstates, and with the Indian tribes.\"\n\nThis power has been held by the supreme court to be an exclusive one in\nthe general government--and one that cannot be controlled by the states.\nYet it gives congress no constitutional authority to legalize any\ncommerce inconsistent with natural justice between man and man; although\nthe _mere_ verbal import of the words, if stretched to their utmost\ntension in favor of the wrong, would authorize congress to legalize a\ncommerce in poisons and deadly weapons, for the express purpose of\nhaving them used in a manner inconsistent with natural right--as for the\npurposes of murder.\n\nAt natural law, and on principles of natural right, a person, who should\n_sell_ to another a weapon or a poison, knowing that it would, or\nintending that it should be used for the purpose of murder, would be\nlegally an accessary to the murder that should be committed with it. And\nif the grant to congress of a \"power to regulate commerce,\" can be\nstretched beyond the _innocent_ meaning of the words--beyond the power\nof regulating and authorizing a commerce that is consistent with natural\njustice--and be made to cover every thing, intrinsically criminal, that\ncan be perpetrated under the name of commerce--then congress have the\nauthority of the constitution for granting to individuals the liberty of\nbringing weapons and poisons from \"foreign nations\" into this, and from\none state into another, and selling them openly for the express purposes\nof murder, without any liability to legal restraint or punishment.\n\nCan any stronger cases than these be required to prove the necessity,\nthe soundness, and the inflexibility of that rule of law, which requires\nthe judiciary to ascribe an innocent meaning to all language that will\npossibly bear an innocent meaning? and to ascribe _only_ an innocent\nmeaning to language whose mere verbal import might be susceptible of\nboth an innocent _and_ criminal meaning? If this rule of interpretation\ncould be departed from, there is hardly a power granted to congress,\nthat might not _lawfully_ be perverted into an authority for legalizing\ncrimes of the highest grade.\n\nIn the light of these principles, then, let us examine those clauses of\nthe constitution, that are relied on as recognizing and sanctioning\nslavery. They are but three in number.\n\nThe one most frequently quoted is the third clause of Art. 4, Sec. 2, in\nthese words:\n\n   \"No person, held to service or labor in one state, under the laws\n   thereof, escaping into another, shall in consequence of any law or\n   regulation therein, be discharged from such service or labor; but\n   shall be delivered up on claim of the party to whom such service or\n   labor may be due.\"\n\nThere are several reasons why this clause renders no sanction to\nslavery.\n\n1. It must be construed, if possible, as sanctioning nothing contrary to\nnatural right.\n\nIf there be any \"service or labor\" whatever, to which any \"persons\"\nwhatever may be \"held,\" _consistently with natural right_, and which any\nperson may, consistently with natural right, \"_claim_\" as his \"_due_\" of\nanother, such \"service or labor,\" and _only_ such, is recognized and\nsanctioned by this provision.\n\nIt needs no argument to determine whether the \"service or labor,\" that\nis exacted of a slave, is such as can be \"_claimed_,\" _consistently with\nnatural right_, as being \"_due_\" from him to his master. And if it\ncannot be, some other \"service or labor\" must, if possible, be found for\nthis clause to apply to.\n\nThe proper definition of the word \"service,\" in this case, obviously is,\nthe labor of a _servant_. And we find, that at and before the adoption\nof the constitution, the persons recognized by the state laws as\n\"servants,\" constituted a numerous class. The statute books of the\nstates abounded with statutes in regard to \"servants.\" Many seem to have\nbeen indented as servants by the public authorities, on account of\ntheir being supposed incompetent, by reason of youth and poverty, to\nprovide for themselves. Many were doubtless indented as apprentices by\ntheir parents and guardians, as now. The English laws recognized a class\nof servants--and many persons were brought here from England, in that\ncharacter, and retained that character afterward. Many indented or\ncontracted themselves as servants for the payment of their passage money\nto this country. In these various ways, the class of persons, recognized\nby the statute books of the states as \"servants,\" was very numerous; and\nformed a prominent subject of legislation. Indeed, no other evidence of\ntheir number is necessary than the single fact, that \"persons bound to\nservice for a term of years,\" were specially noticed by the constitution\nof the United States, (Art. 1, Sec. 2,) which requires that they be\ncounted as units in making up the basis of representation. There is\ntherefore not the slightest apology for pretending that there was not a\nsufficient class for the words \"service or labor\" to refer to, without\nsupposing the existence of slaves.[20]\n\n2. \"_Held to service or labor_,\" is no legal description of slavery.\nSlavery is property in man. It is not necessarily attended with either\n\"service or labor.\" A very considerable portion of the slaves are either\ntoo young, too old, too sick, or too refractory to render \"service or\nlabor.\" As a matter of fact, slaves, who are able to labor, may, in\ngeneral, be compelled by their masters to do so. Yet labor is not an\nessential or necessary condition of slavery. The essence of slavery\nconsists in a person's being owned as property--without any reference to\nthe circumstances of his being compelled to labor, or of his being\npermitted to live in idleness, or of his being too young, or too old, or\ntoo sick to labor.\n\nIf \"service or labor\" were either a test, or a necessary attendant of\nslavery, that test would of itself abolish slavery; because all slaves,\nbefore they can render \"service or labor,\" must have passed through the\nperiod of infancy, when they could render neither service nor labor, and\nwhen, therefore, according to this test, they were free. And if they\nwere free in infancy, they could not be subsequently enslaved.\n\n3. \"Held to service or labor in one state, _under the laws thereof_.\"\n\nThe \"_laws_\" take no note of the fact whether a slave \"labors,\" or not.\nThey recognize no obligation, on his part, to labor. They will enforce\nno \"_claim_\" of a master, upon his slave, for \"service or labor.\" If the\nslave refuse to labor, the law will not interfere to compel him. The law\nsimply recognizes the master's _right of property_ in the slave--just as\nit recognizes his right of property in a horse. Having done that, it\nleaves the master to compel the slave, if he please, and if he can--as\nhe would compel a horse--to labor. If the master do not please, or be\nnot able, to compel the slave to labor, the law takes no more cognizance\nof the case than it does of the conduct of a refractory horse. In short,\nit recognizes no obligation, on the part of the slave, to labor, if he\ncan avoid doing so. It recognizes no \"_claim_,\" on the part of the\nmaster, upon his slave, for \"services or labor,\" as \"_due_\" from the\nlatter to the former.\n\n4. Neither \"service\" nor \"labor\" is necessarily slavery; and not being\nnecessarily slavery, the words cannot, in this case, be strained beyond\ntheir necessary meaning, to make them sanction a wrong. The law will\nnot allow words to be strained a hair's breadth beyond their _necessary_\nmeaning, to make them authorize a wrong. _The stretching, if there be\nany, must always be towards the right._ The words \"service or labor\" do\nnot necessarily, nor in their common acceptation, so much as suggest the\nidea of slavery--that is, they do not suggest the idea of the laborer or\nservant being the property of the person for whom he labors. An indented\napprentice serves and labors for another. He is \"_held_\" to do so, under\na contract, and for a consideration, that are recognized, by the laws,\nas legitimate, and consistent with natural right. Yet he is not owned as\nproperty. A condemned criminal is \"held to labor\"--yet he is not owned\nas property. The law allows no such straining of the meaning of words\ntowards the wrong, as that which would convert the words \"service or\nlabor\" (of men) into _property in man_--and thus make a man, who serves\nor labors for another, the property of that other.\n\n5. \"No person held to service or labor, in one state, under the _laws_\nthereof.\"\n\nThe \"_laws_,\" here mentioned, and impliedly sanctioned, are, of course,\nonly _constitutional_ laws--laws, that are consistent, both with the\nconstitution of the state, and the constitution of the United States.\nNone others are \"_laws_,\" correctly speaking, however they may attempt\nto \"hold persons to service or labor,\" or however they may have the\nforms of laws on the statute books.\n\nThis word \"laws,\" therefore, being a material word, leaves the whole\nquestion just where it found it--for it certainly does not, _of\nitself_--nor indeed does any other part of the clause--say that acts of\na legislature, declaring one man to be the property of another, is a\n\"_law_\" within the meaning of the constitution. As far as the word\n\"_laws_\" says any thing on the subject, it says that such acts are _not_\nlaws--for such acts are clearly inconsistent with natural law--and it\nyet remains to be shown that they are consistent with any constitution\nwhatever, state or national.\n\nThe burden of proof, then, still rests upon the advocates of slavery, to\nshow that an act of a state legislature, declaring one man to be the\nproperty of another, is a \"law,\" within the meaning of this clause. To\nassert simply that it is, without proving it to be so, is a mere begging\nof the question--for that is the very point in dispute.\n\nThe question, therefore, of the _constitutionality_ of the slave acts\nmust first be determined, before it can be decided that they are \"laws\"\nwithin the meaning of the constitution. That is, they must be shown to\nbe consistent with the constitution, before they can be said to be\nsanctioned as \"laws\" by the constitution. Can any proposition be plainer\nthan this? And yet the reverse must be assumed, in this case, by the\nadvocates of slavery.\n\nThe simple fact, that an act purports to \"hold persons to service or\nlabor,\" clearly cannot, _of itself_, make the act constitutional. If it\ncould, any act, purporting to hold \"persons to service or labor,\" would\nnecessarily be constitutional, without any regard to the \"persons\" so\nheld, or the conditions on which they were held. It would be\nconstitutional, _solely because it purported to hold persons to service\nor labor_. If this were the true doctrine, any of us, without respect of\npersons, might be held to service or labor, at the pleasure of the\nlegislature. And then, if \"service or labor\" mean slavery, it would\nfollow that any of us, without discrimination, might be made slaves. And\nthus the result would be, that the acts of a legislature would be\nconstitutional, _solely because they made slaves of the people_.\nCertainly this would be a new test of the constitutionality of laws.\n\nAll the arguments in favor of slavery, that have heretofore been drawn\nfrom this clause of the constitution, have been founded on the\nassumption, that if an act of a legislature did but purport to \"hold\npersons to service or labor\"--no matter how, on what conditions, or for\nwhat cause--that fact alone was sufficient to make the act\nconstitutional. The entire sum of the argument, in favor of slavery, is\nbut this, viz. the constitution recognizes the constitutionality of\n\"laws\" that \"hold persons to service or labor,\"--slave acts \"hold\npersons to service or labor,\"--therefore slave acts must be\nconstitutional. This profound syllogism is the great pillar of slavery\nin this country. It has, (if we are to judge by results,) withstood the\nscrutiny of all the legal acumen of this nation for fifty years and\nmore. If it should continue to withstand it for as many years as it has\nalready done, it will then be time to propound the following, to wit:\nThe state constitutions recognize the right of men to acquire property;\ntheft, robbery, and murder are among the modes in which property may be\nacquired; therefore theft, robbery, and murder are recognized by these\nconstitutions as lawful.\n\nNo doubt the clause contemplates that there may be constitutional\n\"laws,\" under which persons may be \"held to service or labor.\" But it\ndoes not follow, therefore, that every act, that purports to hold\n\"persons to service or labor,\" is constitutional.\n\nWe are obliged, then, to determine whether a statute be constitutional,\nbefore we can determine whether the \"service or labor\" required by it,\nis sanctioned by the constitution as being lawfully required. The simple\nfact, that the statute would \"hold persons to service or labor,\" is, _of\nitself_, no evidence, either for or against its constitutionality.\nWhether it be or be not constitutional, may depend upon a variety of\ncontingencies--such as the kind of service or labor required, and the\nconditions on which it requires it. Any service or labor, that is\ninconsistent with the duties which the constitution requires of the\npeople, is of course not sanctioned by this clause of the constitution\nas being lawfully required. Neither, of course, is the requirement of\nservice or labor, _on any conditions, that are inconsistent with any\nrights that are secured to the people by the constitution_, sanctioned\nby the constitution as lawful. Slave laws, then, can obviously be held\nto be sanctioned by this clause of the constitution, only by\ngratuitously assuming, 1st, that the constitution neither confers any\nrights, nor imposes any duties, upon the people of the United States,\ninconsistent with their being made slaves; and, 2d, that it sanctions\nthe general principle of holding \"persons to service or labor\"\narbitrarily, without contract, without compensation, and without the\ncharge of crime. If this be really the kind of constitution that has\nbeen in force since 1789, it is somewhat wonderful that there are so few\nslaves in the country. On the other hand, if the constitution be not of\nthis kind, it is equally wonderful that we have any slaves at all--for\nthe instrument offers no ground for saying that a colored man may be\nmade a slave, and a white man not.\n\nAgain. Slave acts were not \"laws\" according to any state constitution\nthat was in existence at the time the constitution of the United States\nwas adopted. And if they were not \"laws\" at that time, they have not\nbeen made so since.\n\n6. The constitution itself, (Art. 1. Sec. 2,) in fixing the basis of\nrepresentation, has plainly _denied_ that those described in Art. 4, as\n\"persons held to service or labor,\" are slaves,--for it declares that\n\"persons bound to service for a term of years\" shall be \"included\" in\nthe \"number of _free_ persons.\" There is no _legal_ difference between\nbeing \"bound to service,\" and being \"held to service or labor.\" The\naddition, in the one instance, of the words, \"for a term of years,\" does\nnot alter the case, for it does not appear that, in the other, they are\n\"held to service or labor\" beyond a fixed term--and, in the absence of\nevidence from the constitution itself, the presumption must be that they\nare not--because such a presumption makes it unnecessary to go out of\nthe constitution to find the persons intended, and it is also more\nconsistent with the prevalent municipal, and with natural law.\n\nAnd it makes no difference to this result, whether the word \"free,\" in\nthe first article, be used in the political sense common at that day, or\nas the correlative of slavery. In either case, the persons described as\n\"free,\" could not be made slaves.\n\n7. The words \"service or labor\" cannot be made to include slavery,\nunless by reversing the legal principle, that the greater includes the\nless, and holding that the less includes the greater; that the innocent\nincludes the criminal; that a sanction of what is right, includes a\nsanction of what is wrong.\n\nAnother clause relied on as a recognition of the constitutionality of\nslavery, is the following, (Art. 1. Sec. 2.):\n\n   \"Representatives and direct taxes shall be apportioned among the\n   several states, which may be included within this union, according to\n   their respective numbers, which shall be determined by adding to the\n   whole number of _free_ persons, including those bound to service for\n   a term of years, and excluding Indians not taxed, three-fifths of all\n   other persons.\"\n\nThe argument claimed from this clause, in support of slavery, rests\nentirely upon the word \"free,\" and the words \"all other persons.\" Or\nrather it rests entirely upon the meaning of the word \"free,\" for the\napplication of the words \"all other persons\" depends upon the meaning\ngiven to the word \"free.\" The slave argument _assumes_, _gratuitously_,\nthat the word \"free\" is used as the correlative of slavery and thence it\ninfers that the words, \"all other persons,\" mean slaves.\n\nIt is obvious that the word \"free\" affords no argument for slavery,\nunless a meaning correlative with slavery be _arbitrarily_ given to it,\nfor the very purpose of _making_ the constitution sanction or recognize\nslavery. Now it is very clear that no such meaning can be given to the\nword, _for such a purpose_. The ordinary meaning of a word cannot be\nthus arbitrarily changed, _for the sake of sanctioning a wrong_. A\nchoice of meaning would be perfectly allowable, and even obligatory, if\nmade for the purpose of _avoiding_ any such sanction; but it is entirely\ninadmissable for the purpose of giving it. The legal rules of\ninterpretation, heretofore laid down, imperatively require this\npreference of the right, over the wrong, in all cases where a word is\nsusceptible of different meanings.\n\nThe English law had for centuries used the word \"free\" as describing\npersons possessing citizenship, or some other franchise or peculiar\nprivilege--as distinguished from aliens, and persons not possessed of\nsuch franchise or privilege. This law, and this use of the word \"free,\"\nas has already been shown, had been adopted in this country from its\nfirst settlement. The colonial charters all, (probably without an\nexception,) recognized it. The colonial legislation generally, if not\nuniversally, recognized it. The state constitutions, in existence at the\ntime the constitution of the United States was formed and adopted, used\nthe word in this sense, and no other. The Articles of Confederation--the\nthen existing national compact of union--used the word in this sense,\nand no other. The sense is an appropriate one in itself; the most\nappropriate to, and consistent with the whole character of the\nconstitution, of any of which the word is susceptible. In fact, it is\nthe only one that is either appropriate to, or consistent with, the\nother parts of the instrument. Why, then, is it not the legal meaning?\nManifestly it _is_ the legal meaning. No reason whatever can be given\nagainst it, except that, if such be its meaning, _the constitution will\nnot sanction slavery_! A very good reason--a perfectly unanswerable\nreason, in fact--in favor of this meaning; but a very futile one against\nit.\n\nIt is evident that the word \"free\" is not used as the correlative of\nslavery, because \"Indians not taxed\" are \"excluded\" from its\napplication--yet they are not therefore slaves.\n\nAgain. The word \"free\" cannot be presumed to be used as the correlative\nof slavery--because slavery then had no _legal_ existence. The word must\nobviously be presumed to be used as the correlative of something that\ndid _legally_ exist, rather than of something that did not legally\nexist. If it were used as the correlative of something that did not\nlegally exist, the words \"all other persons\" would have no legal\napplication. Until, then, it be shown that slavery had a legal\nexistence, authorized either by the United States constitution, or by\nthe then existing state constitutions--a thing that cannot be shown--the\nword \"free\" certainly cannot be claimed to have been used as its\ncorrelative.\n\nBut even if slavery had been authorized by the _state_ constitutions,\nthe word \"free,\" in the United States constitution, could not have been\nclaimed to have been used as its correlative, unless it had appeared\nthat the United States constitution had itself provided or suggested no\ncorrelative of the word \"free;\" for it would obviously be absurd and\ninadmissible to go out of an instrument to find the intended correlative\nof one of its own words, when it had itself suggested one. This the\nconstitution of the United States has done, in the persons of aliens.\nThe power of naturalization is, by the constitution, taken from the\nstates, and given exclusively to the United States. The constitution of\nthe United States, therefore, necessarily supposes the existence of\naliens--and thus furnishes the correlative sought for. It furnishes a\nclass both for the word \"free,\" and the words \"all other persons\" to\napply to. And yet the slave argument contends that we must overlook\nthese distinctions, necessarily growing out of the laws of the United\nStates, and go out of the constitution of the United States to _find_\npersons whom it describes as the \"free,\" and \"all other persons.\" And\nwhat makes the argument the more absurd is, that by going out of the\ninstrument to the _then existing state constitutions_--the only\ninstruments to which we can go--we can find there _no other_ persons for\nthe words to apply to--no other classes answering to the description of\nthe \"free persons\" and \"all other persons,\"--than the very classes\nsuggested by the United States constitution itself, to wit, citizens and\naliens; (for it has previously been shown that the then existing state\nconstitutions recognized no such persons as slaves.)\n\nIf we are obliged, (as the slave argument claims we are,) to go out of\nthe constitution of the United States to find the class whom it\ndescribes as \"all other persons\" than \"the free,\" we shall, for aught I\nsee, be equally obliged to go out of it to find those whom it describes\nas the \"free\"--for \"the free,\" and \"all other persons\" than \"the free,\"\nmust be presumed to be found described somewhere in the same instrument.\nIf, then, we are obliged to go out of the constitution to find the\npersons described in it as \"the free\" and \"all other persons,\" we are\nobliged to go out of it to ascertain who are the persons on whom it\ndeclares that the representation of the government shall be based, and\non whom, of course, the government is founded. And thus we should have\nthe absurdity of a constitution that purports to authorize a government,\nyet leaves us to go in search of the people who are to be represented in\nit. Besides, if we are obliged to go out of the constitution, to find\nthe persons on whom the government rests, and those persons are\narbitrarily prescribed by some other instrument, independent of the\nconstitution, this contradiction would follow, viz., that the United\nStates government would be a subordinate government--a mere appendage to\nsomething else--a tail to some other kite--or rather a tail to a large\nnumber of kites at once--instead of being, as it declares itself to be,\nthe supreme government--its constitution and laws being the supreme law\nof the land.\n\nAgain. It certainly cannot be admitted that we must go out of the United\nStates constitution to find the classes whom it describes as \"the free,\"\nand \"all other persons\" than \"the free,\" until it be shown that the\nconstitution has told us where to go to find them. _In all other cases_,\n(without an exception, I think,) where the constitution makes any of its\nprovisions dependent upon the state constitutions, or state\nlegislatures, it has particularly described them as depending upon them.\nBut it gives no intimation that it has left it with the state\nconstitutions, or the state legislatures, to prescribe whom it means by\nthe terms \"free persons\" and \"all other persons,\" on whom it requires\nits own representation to be based. We have, therefore, no more\nauthority from the constitution of the United States, for going to the\nstate constitutions, to find the classes described in the former as the\n\"free persons\" and \"all other persons,\" than we have for going to Turkey\nor Japan. We are compelled, therefore, to find them in the constitution\nof the United States itself, if any answering to the description can\npossibly be found there.\n\nAgain. If we were permitted to go to the state constitutions, or to the\nstate statute books, to find who were the persons intended by the\nconstitution of the United States; and if, as the slave argument\nassumes, it was left to the states respectively to prescribe who should,\nand who should not, be \"free\" within the meaning of the constitution of\nthe United States, it would follow that the terms \"free\" and \"all other\npersons,\" might be applied in as many different ways, and to as many\ndifferent classes of persons, as there were different states in the\nunion. Not only so, but the application might also be varied at pleasure\nin the same state. One inevitable consequence of this state of things\nwould be, that there could be neither a permanent, nor a uniform basis\nof representation throughout the country. Another possible, and even\nprobable consequence would be, such inextricable confusion, as to the\npersons described by the same terms in the different states, that\nCongress could not apportion the national representation at all, in the\nmanner required by the constitution. The questions of law, arising out\nof the different uses of the word \"free,\" by the different states, might\nbe made so endless and inexplicable, that the state governments might\nentirely defeat all the power of the general government to make an\napportionment.\n\nIf the slave construction be put upon this clause, still another\ndifficulty, in the way of making an apportionment, would follow, viz.,\nthat congress could have no _legal_ knowledge of the persons composing\neach of the two different classes, on which its representation must be\nbased; for there is no legal record--known to the laws of the United\nStates, or even to the laws of the states--of those who are slaves, or\nthose who are not. The information obtained by the census takers, (who\nhave no legal records to go to,) must, in the nature of things, be of\nthe most loose and uncertain character, on such points as these. Any\naccurate or _legal_ knowledge on the subject is, therefore, obviously\nimpossible. But if the other construction be adopted, this difficulty is\navoided--for congress then have the control of the whole matter, and may\nadopt such means as may be necessary for ascertaining accurately the\npersons who belong to each of these different classes. And by their\nnaturalization laws they actually do provide for a _legal_ record of all\nwho are made \"free\" by naturalization.\n\nAnd this consideration of certainty, as to the individuals and numbers\nbelonging to each of these two classes, \"free\" and \"all other persons,\"\nacquires an increased and irresistible force, when it is considered that\nthese different classes of persons constitute also different bases for\ntaxation, as well as representation. The requirement of the constitution\nis, that \"representatives and _direct taxes_ shall be apportioned,\" &c.,\naccording to the number of \"free persons\" and \"all other persons.\" In\nreference to so important a subject as taxation, _accurate_ and _legal_\nknowledge of the persons and numbers belonging to the different classes,\nbecomes indispensable. Yet under the slave construction this legal\nknowledge becomes impossible. Under the other construction it is as\nperfectly and entirely within the power of congress, as, in the nature\nof things, such a subject can be--for naturalization is a legal process;\nand legal records, prescribed by congress, may be, and actually are,\npreserved of all the persons naturalized or made \"free\" by their laws.\n\nIf we adopt that meaning of the word \"free,\" which is consistent with\nfreedom--that meaning which is consistent with natural right--the\nmeaning given to it by the Articles of Confederation, by the then\nexisting state constitutions, by the colonial charters, and by the\nEnglish law ever since our ancestors enjoyed the name of freemen, all\nthese difficulties, inconsistencies, contradictions and absurdities,\nthat must otherwise arise, vanish. The word \"free\" then describes the\nnative and naturalized citizens of the United States, and the words \"all\nother persons\" describe resident aliens, \"Indians not taxed,\" and\npossibly some others. The representation is then placed upon the best,\nmost just, and most rational basis that the words used can be made to\ndescribe. The representation also becomes equal and uniform throughout\nthe country. The principle of distinction between the two bases, becomes\nalso a stable, rational and intelligible one--one too necessarily\ngrowing out of the exercise of one of the powers granted to\ncongress;--one, too, whose operation could have been foreseen and judged\nof by the people who adopted the constitution--instead of one\nfluctuating with the ever changing and arbitrary legislation of the\nvarious states, whose mode and motives of action could not have been\nanticipated. Adopt this definition of the word \"free,\" and the same\nlegislature, (that is, the national one,) that is required by the\nconstitution to apportion the representation according to certain\nprinciples, becomes invested--as it evidently ought to be, and as it\nnecessarily must be, to be efficient--with the power of determining, by\ntheir own (naturalization) laws, who are the persons composing the\ndifferent bases on which its apportionment is to be made; instead of\nbeing, as they otherwise would be, obliged to seek for these persons\nthrough all the statute books of all the different states of the union,\nand through all the evidences of private property, under which one of\nthese classes might be held. Adopt this definition of the word \"free,\"\nand the United States government becomes, so far at least as its popular\nrepresentation--which is its most important feature--is concerned, an\nindependent government, subsisting by its own vigor, and pervaded\nthroughout by one uniform principle. Reject this definition, and the\npopular national representation, loses at once its nationality, and\nbecomes a mere dependency on the will of local corporations--a mere\nshuttlecock to be driven hither and thither by the arbitrary and\nconflicting legislation of an indefinite number of separate states.\nAdopt this meaning of the word \"free,\" and the national government\nbecomes capable of knowing its own bases of representation and power,\nand its own subjects of taxation. Reject this definition, and the\ngovernment knows not whom it represents, or on whom to levy taxes for\nits support. Adopt this meaning of the word \"free,\" and some three\nmillions of native born, but now crushed human beings, become, with\ntheir posterity, men and citizens. Adopt this meaning--this _legal_\nmeaning--this _only_ meaning that can, in this clause, be _legally_\ngiven to the word \"free,\" and our constitution becomes, instead of a\nnefarious compact of conspirators against the rights of man, a\nconsistent and impartial contract of government between _all_ \"the\npeople of the United States,\" for securing \"to themselves and their\nposterity the blessings of liberty\" and \"justice.\"\n\nAgain. We cannot unnecessarily place upon the constitution a meaning\ndirectly destructive of the government it was designed to establish. By\ngiving to the word \"free\" the meaning universally given to it by our\npolitical papers of a similar character up to the time the constitution\nwas adopted, we give to the government three millions of citizens, ready\nto fight and be taxed for its support. By giving to the word \"free\" a\nmeaning correlative with slavery, we locate in our midst three millions\nof enemies; thus making a difference of six millions, (one third of our\nwhole number,) in the physical strength of the nation. Certainly a\nmeaning so suicidal towards the government, cannot be given to any part\nof the constitution, except the language be irresistibly explicit; much\nless can it be done, (as in this case it would be,) wantonly,\nunnecessarily, gratuitously, wickedly, and in violation of all previous\nusage.\n\nAgain. If we look into the constitution itself for the meaning of the\nword \"free,\" we find it to result from the distinction there recognized\nbetween citizens and aliens. If we look into the contemporary state\nconstitutions, we still find the word \"free\" to express the political\nrelation of the individual to the state, and not any property relation\nof one individual to another. If we look into the law of nature for the\nmeaning of the word \"free,\" we find that by that law all mankind are\nfree. Whether, therefore, we look to the constitution itself, to the\ncontemporary state constitutions, or to the law of nature, for the\nmeaning of this word \"free,\" the only meaning we shall find is one\nconsistent with the personal liberty of all. On the other hand, if we\nare resolved to give the word a meaning correlative with slavery, we\nmust go to the lawless code of the kidnapper to find such a meaning.\nDoes it need any argument to prove to which of these different codes our\njudicial tribunals are bound to go, to find the meaning of the words\nused in a constitution, that is established professedly to secure\nliberty and justice?\n\nOnce more. It is altogether a false, absurd, violent, unnatural and\npreposterous proceeding, in construing a political paper, which purports\nto establish men's relations to the state, and especially in construing\nthe clause in it which fixes the basis of representation and taxation,\nto give to the words, which describe the persons to be represented and\ntaxed, and which appropriately indicate those relations of men to the\nstate which make them proper subjects of taxation and representation--to\ngive to such words a meaning, which, instead of describing men's\nrelations to the state, would describe merely a personal or property\nrelation of one individual to another, which the state has nowhere else\nrecognized, and which, if admitted to exist, would absolve the persons\ndescribed from all allegiance to the state, would deny them all right to\nbe represented, and discharge them from all liability to be taxed.\n\nBut it is unnecessary to follow out this slave argument into all its\nramifications. It sets out with nothing but assumptions, that are\ngratuitous, absurd, improbable, irrelevant, contrary to all previous\nusage, contrary to natural right, and therefore inadmissible. It\nconducts to nothing but contradictions, absurdities, impossibilities,\nindiscriminate slavery, anarchy, and the destruction of the very\ngovernment which the constitution was designed to establish.\n\nThe other clause relied on as a recognition and sanction, both of\nslavery and the slave trade, is the following:\n\n   \"The migration or importation of such persons as any of the states\n   now existing shall think proper to admit, shall not be prohibited by\n   the congress prior to the year one thousand eight hundred and eight,\n   but a tax or duty may be imposed on such importation, not exceeding\n   ten dollars for each person.\"--(Art. 1, Sec. 9.)\n\nThe slave argument, drawn from this clause, is, that the word\n\"importation\" applies only to property, and that it therefore implies,\nin this clause, that the persons to be imported are necessarily to be\nimported as property--that is, as slaves.\n\nBut the idea that the word \"importation\" applies only to property, is\nerroneous. It applies correctly both to persons and things. The\ndefinition of the verb \"import\" is simply \"to bring from a foreign\ncountry, or jurisdiction, or from another state, into one's own country,\njurisdiction or state.\"--When we speak of \"importing\" things, it is true\nthat we mentally associate with them the idea of property. But that is\nsimply because _things_ are property, and not because the word \"import\"\nhas any control, in that particular, over the character of the things\nimported. When we speak of importing \"persons,\" we do not associate with\nthem the idea of property, simply because \"persons\" are not property.\n\nWe speak daily of the \"importation of foreigners into the country;\" but\nno one infers therefrom that they are brought in as slaves, but as\npassengers. A vessel imports, or brings in, five hundred passengers.\nEvery vessel, or master of a vessel, that \"brings in\" passengers,\n\"imports\" them. But such passengers are not therefore slaves. A man\nimports his wife and children--but they are not therefore his slaves,\nor capable of being owned or sold as his property. A man imports a gang\nof laborers, to clear lands, cut canals, or construct railroads; but not\ntherefore to be held as slaves. An innocent meaning must be given to the\nword, if it will bear one. Such is the legal rule.\n\nEven the popular understanding of the word \"import,\" when applied to\n\"persons,\" does not convey the idea of property. It is only when it is\napplied distinctly to \"slaves,\" that any such idea is conveyed; and then\nit is the word \"slaves,\" and not the word \"import,\" that suggests the\nidea of property. Even slave traders and slave holders attach no such\nmeaning to the word \"import,\" when it is connected with the word\n\"persons;\" but only when it is connected with the word \"slaves.\"\n\nIn the case of Ogden _vs._ Saunders, (12 Wheaton, 332,) Chief Justice\nMarshall said, that in construing the constitution, \"the intention of\nthe instrument must prevail; that this intention must be collected from\nits words; that its words are to be understood in that sense in which\nthey are _generally used_ by those for whom the instrument was\nintended.\" On this principle of construction, there is not the least\nauthority for saying that this provision for \"the importation of\npersons,\" authorized the importation of them as slaves. To give it this\nmeaning, requires the same stretching of words _towards the wrong_, that\nis applied, by the advocates of slavery, to the words \"service or\nlabor,\" and the words \"free\" and \"all other persons.\"\n\nAnother reason, which makes it necessary that this construction should\nbe placed upon the word \"_importation_,\" is, that the clause contains no\nother word that describes the immigration of foreigners. Yet that the\nclause related to the immigration of foreigners _generally_, and that it\nrestrained congress, (up to the year 1808,) from prohibiting the\nimmigration of foreigners generally, there can be no doubt.\n\nThe object, and the only _legal_ object, of the clause was to restrain\ncongress from so exercising their \"power of regulating commerce with\nforeign nations, and among the several states, and with the Indian\ntribes\"--(which power has been decided by the supreme court of the\nUnited States, to include a power over navigation and the transportation\nof passengers in boats and vessels[21])--as to obstruct the introduction\nof new population into such of the states as were desirous of increasing\ntheir population in that manner. The clause does not imply at all, that\nthe population, which the states were thus to \"admit,\" was to be a slave\npopulation.\n\nThe word \"importation,\" (I repeat,) is the only word in the clause, that\napplies to persons that were to _come into_ the country from foreign\nnations. The word \"_migration_\" applies only to those who were to _go\nout from_ one of our own states or territories into another.\n\"_Migration_\" is the act of _going out_ from a state or country; and\ndiffers from immigration in this, that immigration is the act of _coming\ninto_ a state or country. It is obvious, therefore, that the\n\"_migration_,\" which congress are here forbidden to prohibit, is simply\nthe _going out_ of persons from one of our own states or territories\ninto another--(for that is the only \"_migration_\" that could come within\nthe jurisdiction of congress)--and that it has no reference to persons\n_coming in_ from foreign countries to our own.\n\nIf, then, \"migration,\" as here used, has reference only to persons\n_going out_ from one state into another, the word \"_importation_\" is the\nonly one in the clause that is applicable to foreigners coming into our\ncountry. This word \"importation,\" then, being the only word that can\napply to persons coming into the country, it must be considered as\nsubstantially synonymous with immigration, and must apply equally to\n_all_ \"persons,\" that are \"imported,\" or brought into the country as\npassengers. And if it applies equally to all persons, that are brought\nin as passengers, it does not _imply_ that any of those persons are\nslaves; for no one will pretend that this clause ever authorized the\nstate governments to treat as slaves _all_ persons that were brought\ninto the country as passengers. And if it did not authorize them to\ntreat all such passengers as slaves, it did not authorize them to treat\nany of them as such; for it makes no discrimination between the\ndifferent \"persons\" that should be thus imported.\n\nAgain. The argument, that the allowance of the \"importation\" of\n\"persons,\" implies the allowance of property in such persons, would\nimply a recognition of the validity of the slave laws of other\ncountries; for unless slaves were obtained by valid purchase\nabroad--which purchase implies the existence and validity of foreign\nslave laws--the importer certainly could not claim to import his slaves\nas property; but he would appear, at the custom-house, as a mere pirate,\nclaiming to have his captures legalized. So that, _according to the\nslave argument_, the simple use of the word \"importation,\" in the\nconstitution, as applied to \"persons,\" bound our government, not only to\nthe sanction and toleration of slavery in our own country, but to the\nrecognition of the validity of the slave laws of other countries.\n\nBut farther. The allowance of the \"importation\" of slaves, as such,\nunder this clause of the constitution, would imply that congress must\ntake actual, and even the most critical cognizance of the slave laws of\nother countries; and that they should allow neither the mere word of the\nperson calling himself the owner, nor any thing short of the fullest and\nclearest legal proof, according to the laws of those countries, to be\nsufficient to enable him to enter his slaves, as property, at the\ncustom-house; otherwise any masters of vessels, from England or France,\nas well as from Africa, might, on their arrival here, claim their\npassengers as slaves. Did the constitution, in this clause, by simply\nusing the word \"importation,\" instead of immigration, intend to throw\nupon the national government--at the hazard of making it a party to the\nillegal enslavement of human beings--the responsibility of\ninvestigating and deciding upon the legality and credibility of all the\nevidence that might be offered by the piratical masters of slave ships,\nto prove their valid purchase of, and their right of property in their\nhuman cargoes, according to the slave laws of the countries from which\nthey should bring them? Such must have been the intention of the\nconstitution, if it intended, (as it must, if it intended any thing of\nthis kind,) that the fact of \"importation\" under the commercial\nregulations of congress, should be thereafter a sufficient authority for\nholding in slavery the persons imported.\n\nBut perhaps it will be said that it was not the intention of the\nconstitution, that congress should take any responsibility at all in the\nmatter; that it was merely intended that whoever came into the country\nwith a cargo of men, whom he called his slaves, should be permitted to\nbring them in on his own responsibility, and sell them as slaves for\nlife to our people; and that congress were prohibited only from\ninterfering, or asking any questions as to how he obtained them, or how\nthey became his slaves. Suppose such were the intention of the\nconstitution--what follows? Why, that the national government, the only\ngovernment that was to be known to foreign nations, the only government\nthat was to be permitted to regulate our commerce, or make treaties with\nforeign nations, the government on whom alone was to rest the\nresponsibility of war with foreign nations, was bound to permit, (until\n1808,) all masters, both of our own ships and of the ships of other\nnations, to turn pirates, and make slaves of their passengers, whether\nEnglishmen, Frenchmen, or any other civilized people, (for the\nconstitution makes no distinction of \"persons\" on this point,) bring\nthem into this country, sell them as slaves for life to our people, and\nthus make our country a rendezvous and harbor for pirates, involve us\ninevitably in war with every civilized nation in the world, cause\nourselves to be outlawed as a people, and bring certain and swift\ndestruction upon the whole nation; and yet this government, that had the\nsole responsibility of all our foreign relations, was constitutionally\nprohibited from interfering in the matter, or from doing any thing but\nlifting its hands in prayer to God and these pirates, that the former\nwould so far depart, and the latter so far desist from their usual\ncourses, as might be necessary to save us, until 1808, (after which time\nwe would take the matter into our own hands, and, by prohibiting the\ncauses of the danger, save ourselves,) from the just vengeance, which\nthe rest of mankind were taking upon us.\n\nThis is the kind of constitution, under which, (according to the slave\nargument,) we lived until 1808.\n\nBut is such the real character of the constitution? By it, did we thus\nreally avow to the world that we were a nation of pirates? that our\nterritory should be a harbor for pirates? that our people were\nconstitutionally licensed to enslave the people of all other nations,\nwithout discrimination, (for the instrument makes no discrimination,)\nwhom they could either kidnap in their own countries, or capture on the\nhigh seas? and that we had even prohibited our only government that\ncould make treaties with foreign nations, from making any treaty, until\n1808, with any particular nation, to exempt the people of that nation\nfrom their liability to be enslaved by the people of our own? The slave\nargument says that we did avow all this. If we really did, perhaps all\nthat can be said of it now is, that it is very fortunate for us that\nother nations did not take us at our word. For if they had taken us at\nour word, we should, before 1808, have been among the nations that were.\n\nSuppose that, on the organization of our government, we had been charged\nby foreign nations, with having established a piratical government--how\ncould we have rebutted the charge otherwise than by denying that the\nwords \"importation of persons\" legally implied that the persons imported\nwere slaves? Suppose that European ambassadors had represented to\npresident Washington that their governments considered our constitution\nas licensing our people to kidnap the people of other nations, without\ndiscrimination, and bring them to the United States as slaves. Would he\nnot have denied that the legal meaning of the clause did any thing more\nthan secure the free introduction of foreigners as passengers and\nfreemen? Or would he--_he_, the world-renowned champion of human\nrights--have indeed stooped to the acknowledgment that in truth he was\nthe head of a nation of pirates, whose constitution did guarantee the\nfreedom of kidnapping men abroad, and importing them as slaves? And\nwould he, in the event of this acknowledgment, have sought to avert the\ndestruction, which such an avowal would be likely to bring upon the\nnation, by pleading that, although such was the legal meaning of the\nwords of our constitution, we yet had an understanding, (an honorable\nunderstanding!) among ourselves, that we would not take advantage of the\nlicense to kidnap or make slaves of any of the citizens of those\ncivilized and powerful nations of Europe, that kept ships of war, and\nknew the use of gunpowder and cannon; but only the people of poor, weak,\nbarbarous and ignorant nations, who were incapable of resistance and\nretaliation?\n\nAgain. Even the allowance of the simple \"_importation_\" of slaves--(and\nthat is the most that is _literally_ provided for--and the word\n\"importation\" must be construed to the letter,) would not, of itself,\ngive any authority for the continuance of the slavery _after_\n\"importation.\" If a man bring either property or persons into this\ncountry, he brings them in to abide the constitutional laws of the\ncountry; and not to be held according to the customs of the country from\nwhich they were brought. Were it not so, the Turk might import a harem\nof Georgian slaves, and, at his option, either hold them as his own\nproperty, or sell them as slaves to our own people, in defiance of any\nprinciples of freedom that should prevail amongst us. To allow this kind\nof \"importation,\" would be to allow not merely the importation of\nforeign \"persons,\" but also of foreign laws to take precedence of our\nown.\n\nFinally. The conclusion, that congress were restrained, by this clause,\nonly from prohibiting the immigration of a foreign population, and not\nfrom prohibiting the importation of slaves, to be held as slaves after\ntheir importation--is the more inevitable, from the fact that the power\ngiven to congress of naturalizing foreigners, is entirely\nunlimited--except that their laws must be uniform throughout the United\nStates. They have perfect power to pass laws that shall naturalize every\nforeigner without distinction, the moment he sets foot on our soil. And\nthey had this power as perfectly prior to 1808, as since. And it is a\npower entirely inconsistent with the idea that they were bound to admit,\nand forever after to acknowledge as slaves, all or any who might be\nattempted to be brought into the country as such.\n\nOne other provision of the constitution, viz: the one that \"the United\nStates shall protect each of the States against domestic violence\"--has\nsometimes been claimed as a special pledge of impunity and succor to\nthat kind of \"violence,\" which consists in one portion of the people's\nstanding constantly upon the necks of another portion, and robbing them\nof all civil privileges, and trampling upon all their personal rights.\nThe argument seems to take it for granted, that the only proper way of\nprotecting a \"_republican_\" state (for the states are all to be\n\"republican,\") against \"domestic violence,\" is to plant men firmly upon\none another's necks, (about in the proportion of two upon one,) arm the\ntwo with whip and spur, and then keep an armed force standing by to cut\ndown those that are ridden, if they dare attempt to throw the riders.\nWhen the ridden portion shall, by this process, have been so far subdued\nas to bear the burdens, lashings and spurrings of the other portion\nwithout resistance, then the state will have been secured against\n\"domestic violence,\" and the \"republican form of government\" will be\ncompletely successful.\n\nThis version of this provision of the constitution presents a fair\nillustration of those new ideas of law and language, that have been\ninvented for the special purpose of bringing slavery within the pale of\nthe constitution.\n\nWe have thus examined all those clauses of the constitution, that have\nbeen relied on to prove that the instrument recognizes and sanctions\nslavery. No one would have ever dreamed that either of these clauses\nalone, or that all of them together, contained so much as an allusion to\nslavery, had it not been for circumstances extraneous to the\nconstitution itself. And what are these extraneous circumstances? They\nare the existence and toleration, in one portion of the country, of a\ncrime that embodies within itself nearly all the other crimes, which it\nis the principal object of all our governments to punish and suppress; a\ncrime which we have therefore no more right to presume that the\nconstitution of the United States intended to sanction, than we have to\npresume that it intended to sanction all the separate crimes which\nslavery embodies, and our governments prohibit. Yet we have\n_gratuitously_ presumed that the constitution intended to sanction all\nthese separate crimes, as they are comprehended in the general crime of\nslavery. And acting upon this gratuitous presumption, we have sought, in\nthe words of the constitution, for some hidden meaning, which we could\nimagine to have been understood, by the initiated, as referring to\nslavery; or rather we have presumed its words to have been used as a\nkind of cypher, which, among confederates in crime, (as we presume its\nauthors to have been,) was meant to stand for slavery. In this way, and\nin this way only, we pretend to have discovered, in the clauses that\nhave been examined, a hidden, yet legal sanction of slavery. In the name\nof all that is legal, who of us are safe, if our government, instead of\nsearching our constitution to find authorities for maintaining justice,\nare to continue to busy themselves in such prying and microscopic\ninvestigations, after such disguised and enigmatical authorities for\nsuch wrongs as that of slavery, and their pretended discoveries are to\nbe adopted as law, which they are sworn to carry into execution?\n\nThe clauses mentioned, taken either separately or collectively, neither\nassert, imply, sanction, recognize nor acknowledge any such thing as\nslavery. They do not even speak of it. They make no allusion to it\nwhatever. They do not suggest, and, of themselves, never would have\nsuggested the idea of slavery. There is, in the whole instrument, no\nsuch word as slave or slavery; nor any language that can legally be made\nto assert or imply the existence of slavery. There is in it nothing\nabout color; nothing from which a liability to slavery can be predicated\nof one person more than another; or from which such a liability can be\npredicated of any person whatever. The clauses, that have been claimed\nfor slavery, are all, in themselves, honest in their language, honest in\ntheir legal meaning; and they can be made otherwise only by such\ngratuitous assumptions against natural right, and such straining of\nwords in favor of the wrong, as, if applied to other clauses, would\nutterly destroy every principle of liberty and justice, and allow the\nwhole instrument to be perverted to every conceivable purpose of tyranny\nand crime.\n\nLet us now look at the _positive_ provisions of the constitution, _in\nfavor of liberty_, and see whether they are not only inconsistent with\nany legal sanction of slavery, but also whether they must not, of\nthemselves, have necessarily extinguished slavery, if it had had any\nconstitutional existence to be extinguished.\n\nAnd, first, the constitution made all \"the people of the United States\"\n_citizens_ under the government to be established by it; for all of\nthose, by whose authority the constitution declares itself to be\nestablished, must of course be presumed to have been made citizens under\nit. And whether they were entitled or not to the right of suffrage, they\nwere at least entitled to all the personal liberty and protection, which\nthe constitution professes to secure to \"the people\" generally.\n\nWho, then, established the constitution?\n\nThe preamble to the constitution has told us in the plainest possible\nterms, to wit, that \"We, _the people_ of the United States\" \"do ordain\nand establish this constitution,\" &c.\n\nBy \"the people of the United States,\" here mentioned, the constitution\nintends _all_ \"the people\" then permanently inhabiting the United\nStates. If it does not intend all, who were intended by \"the people of\nthe United States?\"--The constitution itself gives no answer to such a\nquestion.--It does not declare that \"we, the _white_ people,\" or \"we,\nthe _free_ people,\" or \"we, a _part_ of the people\"--but that \"we, _the_\npeople\"--that is, we the _whole_ people--of the United States, \"do\nordain and establish this constitution.\"\n\nIf the _whole_ people of the United States were not recognized as\ncitizens by the constitution, then the constitution gives no information\nas to what portion of the people were to be citizens under it. And the\nconsequence would then follow that the constitution established a\ngovernment that could not know its own citizens.\n\nWe cannot go out of the constitution for evidence to prove who were to\nbe citizens under it. We cannot go out of a written instrument for\nevidence to prove the parties to it, nor to explain its meaning, except\nthe language of the instrument on that point be ambiguous. In this case\nthere is no ambiguity. The language of the instrument is perfectly\nexplicit and intelligible.\n\nBecause the whole people of the country were not allowed to vote on the\nratification of the constitution, it does not follow that they were not\nmade citizens under it; for women and children did not vote on its\nadoption; yet they are made citizens by it, and are entitled as citizens\nto its protection; and the state governments cannot enslave them. The\nnational constitution does not limit the right of citizenship and\nprotection by the right of suffrage, any more than do the state\nconstitutions. Under the most, probably under all the state\nconstitutions, there are persons who are denied the right of\nsuffrage--but they are not therefore liable to be enslaved.\n\nThose who did take part in the actual ratification of the constitution,\nacted in behalf of, and, _in theory_, represented the authority of the\nwhole people. Such is the theory in this country wherever suffrage is\nconfined to a few; and such is the virtual declaration of the\nconstitution itself. The declaration that \"we _the people_ of the United\nStates do ordain and establish this constitution,\" is equivalent to a\ndeclaration that those who actually participated in its adoption, acted\nin behalf of all others, as well as for themselves.\n\nAny private intentions or understandings, on the part of one portion of\nthe people, as to who should be citizens, cannot be admitted to prove\nthat such portion only were intended by the constitution, to be\ncitizens; for the intentions of the other portion would be equally\nadmissible to exclude the exclusives. The mass of the people can claim\ncitizenship under the constitution, on no other ground than as being a\npart of \"the people of the United States;\" and such claim necessarily\nadmits that all other \"people of the United States\" are equally\ncitizens.\n\nThat the designation, \"We the people of the United States,\" included the\nwhole people that properly belonged to the United States, is also proved\nby the fact that no exception is made in any other part of the\ninstrument.\n\nIf the constitution had intended that any portion of \"the people of the\nUnited States\" should be excepted from its benefits, disfranchised,\noutlawed, enslaved, it would of course have designated these exceptions\nwith such particularity as to make it sure that none but the true\npersons intended would be liable to be subjected to such wrongs. Yet,\ninstead of such particular designation of the exceptions, we find no\ndesignation whatever of the kind. But on the contrary, we _do_ find, in\nthe preamble itself, a sweeping declaration to the effect that there are\nno such exceptions; that the whole people of the United States are\ncitizens, and entitled to liberty, protection, and the dispensation of\njustice under the constitution.\n\nIf it be admitted that the constitution designated its own citizens,\nthen there is no escape from the conclusion that it designated the\nwhole people of the United States as such. On the other hand, if it be\ndenied that the constitution designated its own citizens, one of these\ntwo conclusions must follow, viz., 1st, that it has no citizens; or, 2d,\nthat it has left an unrestrained power in the _state_ governments to\ndetermine who may, and who may not, be citizens of the _United States_\ngovernment. If the first of these conclusions be adopted, viz., that the\nconstitution has no citizens, then it follows that there is really no\nUnited States government, except on paper--for there would be as much\nreason in talking of an army without men, as of a government without\ncitizens. If the second conclusion be adopted, viz., that the state\ngovernments have the right of determining who may, and who may not be\ncitizens of the United States government, then it follows that the state\ngovernments may at pleasure destroy the government of the United States,\nby enacting that none of their respective inhabitants shall be citizens\nof the United States.\n\nThis latter is really the doctrine of some of the slave states--the\n\"state-rights\" doctrine, so called. That doctrine holds that the general\ngovernment is merely a confederacy or league of the several states, _as\nstates_; not a government established by the people, _as people_. This\n\"state-rights\" doctrine has been declared unconstitutional by reiterated\nopinions of the supreme court of the United States;[22] and, what is of\nmore consequence, it is denied also by the preamble to the constitution\nitself, which declares that it is \"the people,\" (and not the state\ngovernments,) that ordain and establish it. It is true also that the\nconstitution was ratified by conventions of the people, and not by the\nlegislatures of the states. Yet because the constitution was ratified by\nconventions of the states _separately_, (as it naturally would be for\nconvenience, and as it necessarily must have been for the reason that\nnone but the people of the respective states could recall any portion of\nthe authority they had, delegated to their state governments, so as to\ngrant it to the United States government,)--yet because it was thus\nratified, I say, some of the slave states have claimed that the general\ngovernment was a league of states, instead of a government formed by\n\"the people.\" The true reason why the slave states have held this\ntheory, probably is, because it would give, or appear to give, to the\nstates the right of determining who should, and who should not, be\ncitizens of the United States. They probably saw that if it were\nadmitted that the constitution of the United States had designated its\nown citizens, it had undeniably designated the whole people of the then\nUnited States as such; and that, as a state could not enslave a citizen\nof the United States, (on account of the supremacy of the constitution\nof the United States,) it would follow that there could be no\nconstitutional slavery in the United States.\n\nAgain. If the constitution was established by authority of all \"the\npeople of the United States,\" they were all legally parties to it, and\ncitizens under it. And if they were parties to it, and citizens under\nit, it follows that neither they, _nor their posterity_, nor any nor\neither of them, can ever be legally enslaved within the territory of the\nUnited States; for the constitution declares its object to be, among\nother things, \"to secure the blessings of liberty to _ourselves, and our\nposterity_.\" This purpose of the national constitution is a law\nparamount to all state constitutions; for it is declared that \"this\nconstitution, and the laws of the United States that shall be made in\npursuance thereof, and all treaties made, or which shall be made under\nthe authority of the United States, shall be the supreme law of the\nland; and the judges _in every state_ shall be bound thereby, any thing\nin the constitution or laws of any state to the contrary\nnotwithstanding.\"\n\nNo one, I suppose, doubts that if the state governments were to abolish\nslavery, the slaves would then, without further legislation, become\ncitizens of the United States. Yet, in reality, if they would become\ncitizens then, they are equally citizens now--else it would follow that\nthe state governments had an arbitrary power of making citizens of the\nUnited States; or--what is equally absurd--it would follow that\ndisabilities, arbitrarily imposed by the state governments, upon native\ninhabitants of the country, were, of themselves, sufficient to deprive\nsuch inhabitants of their citizenship, which would otherwise have been\nconferred upon them by the constitution of the United States. To suppose\nthat the state governments are thus able, arbitrarily, to keep in\nabeyance, or arbitrarily to withhold from any of the inhabitants of the\ncountry, any of the benefits or rights which the national constitution\nintended to confer upon them, would be to suppose that the state\nconstitutions were paramount to the national one. The conclusion,\ntherefore, is inevitable, that the state governments have no power to\nwithhold the rights of citizenship from any who are otherwise competent\nto become citizens. And as all the native born inhabitants of the\ncountry are at least competent to become citizens of the United States,\n(if they are not already such,) the state governments have no power, by\nslave laws or any other, to withhold the rights of citizenship from\nthem.\n\nBut however clear it may be, that the constitution, in reality, made\ncitizens of all \"the people of the United States,\" yet it is not\nnecessary to maintain that point, in order to prove that the\nconstitution gave no guaranty or sanction to slavery--for if it had not\nalready given citizenship to all, it nevertheless gave to the government\nof the United States unlimited power of offering citizenship to all. The\npower given to the government of passing naturalization laws, is\nentirely unrestricted, except that the laws must be uniform throughout\nthe country. And the government have undoubted power to offer\nnaturalization and citizenship to every person in the country, whether\nforeigner or native, who is not already a citizen. To suppose that we\nhave in the country three millions of native born inhabitants, not\ncitizens, and whom the national government has no power to make\ncitizens, when its power of naturalization is entirely unrestricted, is\na palpable contradiction.\n\nBut further. The constitution of the United States must be made\nconsistent with itself throughout; and if any of its parts are\nirreconcilable with each other, those parts that are inconsistent with\nliberty, justice and right, must be thrown out for inconsistency.\nBesides the provisions already mentioned, there are numerous others, in\nthe constitution of the United States, that are entirely and\nirreconcilably inconsistent with the idea that there either was, or\ncould be, any constitutional slavery in this country.\n\nAmong these provisions are the following:\n\n_First._ Congress have power to lay a capitation or poll tax upon the\npeople of the country. Upon whom shall this tax be levied? and who must\nbe held responsible for its payment? Suppose a poll tax were laid upon a\nman, whom the state laws should pretend to call a slave. Are the United\nStates under the necessity of investigating, or taking any notice of the\nfact of slavery, either for the purpose of excusing the man himself from\nthe tax, or of throwing it upon the person claiming to be his owner?\nMust the government of the United States find a man's pretended owner,\nor only the man himself, before they can tax him? Clearly the United\nStates are not bound to tax any one but the individual himself, or to\nhold any other person responsible for the tax. Any other principle would\nenable the state governments to defeat any tax of this kind levied by\nthe United States. Yet a man's liability to be held personally\nresponsible for the payment of a tax, levied upon himself by the\ngovernment of the United States, is inconsistent with the idea that the\ngovernment is bound to recognize him as not having the ownership of his\nown person.\n\n   _Second._ \"The congress shall have power to regulate commerce with\n   foreign nations, and among the several states, and with the Indian\n   tribes.\"\n\nThis power is held, by the supreme court of the United States, to be an\nexclusive one in the general government; and it obviously must be so, to\nbe effectual--for if the states could also interfere to regulate it, the\nstates could at pleasure defeat the regulations of congress.\n\nCongress, then, having the exclusive power of regulating this commerce,\nthey only (if any body) can say who may, and who may not, carry it on;\nand probably even they have no power to discriminate arbitrarily between\nindividuals.--But, in no event, have the _state_ governments any right\nto say who may, or who may not, carry on \"commerce with foreign\nnations,\" or \"among the several states,\" or \"with the Indian tribes.\"\nEvery individual--naturally competent to make contracts--whom the state\nlaws declare to be a slave, probably has, and certainly may have, under\nthe regulations of congress, as perfect a right to carry on \"commerce\nwith foreign nations, and among the several states, and with the Indian\ntribes,\" as any other citizen of the United States can have--\"any thing\nin the constitution or laws of any state to the contrary\nnotwithstanding.\" Yet this right of carrying on commerce is a right\nentirely inconsistent with the idea of a man's being a slave.\n\nAgain. It is a principle of law that the right of traffic is a natural\nright, and that all commerce (that is intrinsically innocent) is\ntherefore lawful, except what is prohibited by positive legislation.\nTraffic with the slaves, either by people of foreign nations, or by\npeople belonging to other states than the slaves, has never (so far as I\nknow) been prohibited by congress, which is the only government, (if\nany,) that has power to prohibit it. Traffic with the slaves is\ntherefore as lawful at this moment, under the constitution of the\nUnited States, as is traffic with their masters; and this fact is\nentirely inconsistent with the idea that their bondage is\nconstitutional.\n\n   _Third._ \"The congress shall have power to establish post offices and\n   post roads.\"\n\nWho, but congress, have any right to say who may send, or receive\nletters by the United States posts? Certainly no one. They have\nundoubted authority to permit any one to send and receive letters by\ntheir posts--\"any thing in the constitutions or laws of the states to\nthe contrary notwithstanding.\" Yet the right to send and receive letters\nby post, is a right inconsistent with the idea of a man's being a slave.\n\n   _Fourth._ \"The congress shall have power to promote the progress of\n   science and useful arts, by securing for limited times to authors and\n   inventors the exclusive right to their respective writings and\n   discoveries.\"\n\nSuppose a man, whom a state may pretend to call a slave, should make an\ninvention or discovery--congress have undoubted power to secure to such\nindividual himself, by patent, the \"_exclusive_\"--(mark the word)--the\n\"exclusive right\" to his invention or discovery. But does not this\n\"_exclusive right_\" in the inventor himself, exclude the right of any\nman, who, under a state law, may claim to be the owner of the inventor?\nCertainly it does. Yet the slave code says that whatever is a slave's is\nhis owner's. This power, then, on the part of congress, to secure to an\nindividual the exclusive right to his inventions and discoveries, is a\npower inconsistent with the idea that that individual himself, and all\nhe may possess, are the property of another.\n\n   _Fifth._ \"The congress shall have power to declare war, grant letters\n   of marque and reprisal, and make rules concerning captures on land\n   and water;\" also \"to raise and support armies;\" and \"to provide and\n   maintain a navy.\"\n\nHave not congress authority, under these powers, to enlist soldiers and\nsailors, _by contract with themselves_, and to pay them their wages,\ngrant them pensions, and secure their wages and pensions to their own\nuse, without asking the permission either of the state governments, or\nof any individuals whom the state governments may see fit to recognize\nas the owners of such soldiers and sailors? Certainly they have, in\ndefiance of all state laws and constitutions whatsoever; and they have\nalready asserted that principle by enacting that pensions, paid by the\nUnited States to their soldiers, shall not be liable to be taken for\ndebt, under the laws of the states. Have they not authority also to\ngrant letters of marque and reprisal, and to secure the prizes, to a\nship's crew of blacks, as well as of whites? To those whom the State\ngovernments call slaves, as well as to those whom the state governments\ncall free?--Have not congress authority to make contracts, for the\ndefence of the nation, with any and all the inhabitants of the nation,\nwho may be willing to perform the service? Or are they obliged first to\nask and obtain the consent of those private individuals who may pretend\nto own the inhabitants of this nation? Undoubtedly congress have the\npower to contract with whom they please, and to secure wages and\npensions to such individuals, in contempt of all state authority. Yet\nthis power is inconsistent with the idea that the constitution\nrecognizes or sanctions the legality of slavery.\n\n   _Sixth._ \"The congress shall have power to provide for the\n   organizing, _arming_ and disciplining the _militia_, and for\n   governing such part of them as may be employed in the service of the\n   United States, reserving to the states respectively the appointment\n   of the officers, and the authority of training the militia, according\n   to the discipline prescribed by congress.\" Also \"to provide for\n   calling forth the militia to execute the laws of the Union, suppress\n   insurrections, and repel invasions.\"\n\nHave not congress, under these powers, as undoubted authority to enroll\nin the militia, and \"_arm_\" those whom the states call slaves, and\nauthorize them always to keep their arms by them, even when not on duty,\n(that they may at all times be _ready_ to be \"called forth\" \"to execute\nthe laws of the Union, suppress insurrections, and repel invasions,\")\nas they have thus to enroll and arm those whom the states call free? Can\nthe state governments determine who may, and who may not compose the\nmilitia of the \"United States?\"\n\nLook, too, at this power, in connection with the second amendment to the\nconstitution; which is in these words:\n\n   \"A well regulated militia being necessary to the security of a free\n   state, the right of _the people_ to keep and bear arms shall not be\n   infringed.\"\n\nThese provisions obviously recognize the natural right of all men \"to\nkeep and bear arms\" for their personal defence; and prohibit both\ncongress and the state governments from infringing the right of \"the\npeople\"--that is, of _any_ of the people--to do so; and more especially\nof any whom congress have power to include in their militia. This right\nof a man \"to keep and bear arms,\" is a right palpably inconsistent with\nthe idea of his being a slave. Yet the right is secured as effectually\nto those whom the states presume to call slaves, as to any whom the\nstates condescend to acknowledge free.\n\nUnder this provision any man has a right either to give or sell arms to\nthose persons whom the states call slaves; and there is no\n_constitutional_ power, in either the national or state governments,\nthat can punish him for so doing; or that can take those arms from the\nslaves; or that can make it criminal for the slaves to use them, if,\nfrom the inefficiency of the laws, it should become necessary for them\nto do so, in defence of their own lives or liberties; for this\nconstitutional right to keep arms implies the constitutional right to\nuse them, if need be, for the defence of one's liberty or life.\n\n_Seventh._ The constitution of the United States declares that \"no state\nshall pass _any_ law impairing the obligation of contracts.\"\n\n\"The obligation of contracts,\" here spoken of, is, of necessity, the\n_natural obligation_; for that is the only real or true obligation that\nany contracts can have. It is also the only obligation, which courts\nrecognize in any case, except where legislatures arbitrarily interfere\nto impair it. But the prohibition of the constitution is upon the\nstates' passing any law whatever that shall impair the natural\nobligation of men's contracts. Yet, if slave laws were constitutional,\nthey would effectually impair the obligation of all contracts entered\ninto by those who are made slaves; for the slave laws must necessarily\nhold that all a slave's contracts are void.\n\nThis prohibition upon the states to pass _any_ law impairing the natural\nobligation of men's contracts, implies that all men have a\nconstitutional right to enter into all contracts that have a natural\nobligation. It therefore _secures_ the constitutional right of all men\nto enter into such contracts, and to have them respected by the state\ngovernments. Yet this constitutional right of all men to enter into all\ncontracts that have a natural obligation, and to have those contracts\nrecognized by law as valid, is a right plainly inconsistent with the\nidea that men can constitutionally be made slaves.\n\nThis provision therefore absolutely prohibits the passage of slave laws,\nbecause laws that make men slaves must necessarily impair the obligation\nof all their contracts.\n\n_Eighth._ Persons, whom some of the state governments recognize as\nslaves, are made eligible, by the constitution of the United States, to\nthe office of president of the United States. The constitutional\nprovision on this subject is this:\n\n   \"No person, except a natural born citizen, or a citizen of the United\n   States at the time of the adoption of this constitution, shall be\n   eligible to the office of president; neither shall any person be\n   eligible to that office, who shall not have attained the age of\n   thirty-five years, and been fourteen years a resident of the United\n   States.\"\n\nAccording to this provision, _all_ \"persons\",[23] who have resided\nwithin the United States fourteen years, have attained the age of\nthirty-five years, and are either _natural born citizens, or were\ncitizens of the United States at the time of the adoption of the\nconstitution_, are eligible to the office of president. No other\nqualifications than these being required by the constitution, no others\ncan be legally demanded. The only question, then, that can arise, is as\nto the word \"citizen.\" Who are the persons that come within this\ndefinition, as here used? The clause itself divides them into two\nclasses, to wit, the \"natural born,\" and those who were \"citizens of the\nUnited States at the time of the adoption of the constitution.\" In\nregard to this latter class, it has before been shown, from the preamble\nto the constitution, that all who were \"people of the United States,\"\n(that is, permanent inhabitants,) at the time the constitution was\nadopted, were made citizens by it. And this clause, describing those\neligible to the office of president, implies the same thing. This is\nevident; for it speaks of those who were \"citizens of the _United\nStates_ at the time of the adoption of the constitution.\" Now there\nclearly could have been no \"citizens of the United States, at the time\nof the adoption of the constitution,\" unless they were made so by the\nconstitution itself; for there were _no_ \"citizens of the _United\nStates_\" _before_ the adoption of the constitution. The Confederation\nhad no citizens. It was a mere league between the state governments. The\nseparate states belonging to the confederacy had each their own citizens\nrespectively. But the confederation itself, as such, had no citizens.\nThere were, therefore, no \"citizens of the United States,\" (but only\ncitizens of the respective states,) before the adoption of the\nconstitution.--Yet this clause asserts that immediately on the adoption,\nor \"at the time of the adoption of this constitution,\" there _were_\n\"citizens of the United States.\" Those, then, who were \"citizens of the\nUnited States at the time of the adoption of the constitution,\" were\nnecessarily those, and only those, who had been made so by the adoption\nof the constitution; because they could have become citizens at that\nprecise \"time\" in no other way. If, then, any persons were made\ncitizens by the adoption of the constitution, who were the _individuals_\nthat were thus made citizens? They were \"the people of the United\nStates,\" of course--as the preamble to the constitution virtually\nasserts. And if \"the people of the United States\" were made citizens by\nthe adoption of the constitution, then _all_ \"the people of the United\nStates\" were necessarily made citizens by it--for no discrimination is\nmade by the constitution between different individuals, \"people of the\nUnited States\"--and there is therefore no means of determining who were\nmade citizens by the adoption of the constitution, unless _all_ \"the\npeople of the United States\" were so made. Any \"person,\" then, who was\none of \"the people of the United States\" \"at the time of the adoption of\nthis constitution,\" and who is thirty-five years old, and has resided\nfourteen years within the United States, is eligible to the office of\npresident of the United States. And if every such person be eligible,\nunder the constitution, to the office of president of the United States,\nthe constitution certainly does not recognize them as slaves.\n\nThe other class of citizens, mentioned as being eligible to the office\nof president, consists of the \"natural born citizens.\" Here is an\nimplied assertion that _natural birth_ in the country gives the right of\ncitizenship. And if it gives it to one, it necessarily gives it to\nall--for no discrimination is made; and if all persons, born in the\ncountry, are not entitled to citizenship, the constitution has given us\nno test by which to determine who of them are entitled to it.\n\nEvery person, then, born in the country, and that shall have attained\nthe age of thirty-five years, and been fourteen years a resident within\nthe United States, is eligible to the office of president. And if\neligible to that office, the constitution certainly does not recognize\nhim as a slave.\n\nPersons, who are \"citizens\" of the United States, according to the\nforegoing definitions, are also eligible to the offices of\nrepresentative and senator of the United States; and therefore cannot be\nslaves.\n\n   _Ninth._ The constitution declares that \"the trial of all crimes,\n   except in cases of impeachment, shall be _by jury_.\"--Also that\n   \"Treason against the United States shall consist only in levying war\n   against them, or in adhering to their enemies, giving them aid and\n   comfort.\"\n\nIt is obvious that slaves, if we had any, might \"levy war against the\nUnited States,\" and might also \"adhere to their enemies, giving them aid\nand comfort.\" It may, however, be doubted whether they could commit the\ncrime of treason--for treason implies a breach of fidelity, trust or\nallegiance, where fidelity, trust or allegiance is due. And it is very\nclear that slaves could owe allegiance, trust or fidelity, neither to\nthe United States, nor to the state governments; for allegiance is due\nto a government only from those who are protected by it. Slaves could\nowe to our governments nothing but resistance and destruction. If\ntherefore they were to levy war against the United States, they might\nnot perhaps be liable to the technical charge of treason; although there\nwould, in reality, be as much treason in their act, as there would of\nany other crime--for there would, in truth, be neither legal nor moral\ncrime of any kind in it. Still, the government would be compelled, in\norder to protect itself against them, to charge them with some crime or\nother--treason, murder, or something else. And this charge, whatever it\nmight be, would have to be tried by a jury. And what (in criminal\ncases,) is the \"trial by jury?\" It is a trial, both of the law and the\nfact, by the \"peers,\" or equals, of the person tried. Who are the\n\"peers\" of a slave? None, evidently, but slaves. If, then, the\nconstitution recognizes any such class of persons, in this country, as\nslaves, it would follow that for any crime committed by them against the\nUnited States, they must be tried, both on the law and the facts, by a\njury of slaves. The result of such trials we can readily imagine.\n\nDoes this look as if the constitution guarantied, or even recognized the\nlegality of slavery?\n\n   _Tenth._ The constitution declares that \"The privilege of the writ of\n   _habeas corpus_ shall not be suspended, unless when, in cases of\n   rebellion or invasion, the public safety may require it.\"\n\nThe privilege of this writ, wherever it is allowed, is of itself\nsufficient to make slavery impossible and illegal. The object and\nprerogative of this writ are to secure to all persons their natural\nright to personal liberty, against all restraint except from the\ngovernment; and even against restraints by the government itself, unless\nthey are imposed in conformity with established general laws, and upon\nthe charge of some legal offence or liability. It accordingly liberates\nall who are held in custody against their will, (whether by individuals\nor the government,) unless they are held _on some formal writ or\nprocess, authorized by law, issued by the government, according to\nestablished principles, and charging the person held by it with some\nlegal offence or liability_. The principle of the writ seems to be, that\nno one shall be restrained of his natural liberty, unless these three\nthings conspire; 1st, that the restraint be imposed by _special command\nof the government_; 2d, that there be a general law authorizing\nrestraints for specific causes; and, 3d, that the government, previously\nto issuing process for restraining any particular individual, shall\nitself, by its proper authorities, take express cognizance of, and\ninquire cautiously into the facts of each case, and ascertain, by\nreasonable evidence, that the individual has brought himself within the\nliabilities of the general law. All these things the writ of _habeas\ncorpus_ secures to be done, before it will suffer a man to be restrained\nof his liberty; for the writ is a mandate to the person holding another\nin custody, commanding him to bring his prisoner before the court, and\nshow the authority by which it holds him. Unless he then exhibit a legal\nprecept, warrant or writ, issued by, and bearing the seal of the\ngovernment, specifying a legal ground for restraining the prisoner, and\nauthorizing or requiring him to hold him in custody, he will be ordered\nto let him go free. Hence all the keepers of prisons, in order to hold\ntheir prisoners against the authority of this writ, are required, in the\ncase of each prisoner, to have a written precept or order, bearing the\nseal of the government, and issued by the proper authority, particularly\ndescribing the prisoner by name or otherwise, and setting forth the\nlegal grounds of his imprisonment, and requiring the keeper of the\nprison to hold him in his custody.\n\nNow the master does not hold his slave in custody by virtue of any\nformal or legal writ or process, either authorized by law, or issued by\nthe government, or that charges the slave with any legal offence or\nliability. A slave is incapable of incurring any legal liability, or\nobligation to his master. And the government could, with no more\nconsistency, grant a writ or process to the master, to enable him to\nhold his slave, than it could to enable him to hold his horse. It simply\nrecognizes his right of property in his slave, and then leaves him at\nliberty to hold him by brute force, if he can, as he holds his ox, or\nhis horse--and not otherwise. If the slave escape, or refuse to labor,\nthe slave code no more authorizes the government to issue legal process\nagainst the slave, to authorize the master to catch him, or compel him\nto labor, than it does against a horse for the same purpose.--The slave\nis held simply as property, by individual force, without legal process.\nBut the writ of _habeas corpus_ acknowledges no such principle as the\nright of property in man. If it did, it would be perfectly impotent in\nall cases whatsoever; because it is a principle of law, in regard to\nproperty, that simple possession is _prima facie_ evidence of ownership;\nand therefore any man, who was holding another in custody, could defeat\nthe writ by pleading that he owned his prisoner, and by giving, as proof\nof ownership, the simple fact that he was in possession of him. If,\ntherefore, the writ of _habeas corpus_ did not, of itself, involve a\ndenial of the right of property in man, the fact stated in it, that one\nman was holding another in custody, would be _prima facie_ evidence\nthat he owned him, and had a right to hold him; and the writ would\ntherefore carry an absurdity in its face.\n\nThe writ of _habeas corpus_, then, _necessarily_ denies the right of\nproperty in man. And the constitution, by declaring, without any\ndiscrimination of persons, that \"the privilege of this writ shall not be\nsuspended,\"--that is, shall not be denied to any human being--has\ndeclared that, under the constitution, there can be no right of property\nin man.\n\nThis writ was unquestionably intended as a great constitutional guaranty\nof personal liberty. But unless it denies the right of property in man,\nit in reality affords no protection to any of us against being made\nslaves. If it does deny the right of property in man, the slave is\nentitled to the privilege of the writ; for he is held in custody by his\nmaster, simply on the ground of property.\n\nMr. Christian, one of Blackstone's editors, says that it is this writ\nthat makes slavery impossible in England. It was on this writ, that\nSomerset was liberated. The writ, in fact, asserts, as a great\nconstitutional principle, the natural right of personal liberty. And the\nprivilege of the writ is not confined to citizens, but extends to all\nhuman beings.[24] And it is probably the only absolute guaranty, that\nour national constitution gives to foreigners and aliens, that they\nshall not, on their arrival here, be enslaved by those of our state\ngovernments that exhibit such propensities for enslaving their\nfellow-men. For this purpose, it is a perfect guaranty to people who\ncome here from any part of the world. And if it be such a guaranty to\nforeigners and aliens, is it no guaranty to those born under the\nconstitution? Especially when the constitution makes no discrimination\nof persons?\n\n   _Eleventh._ \"The United States shall guaranty to every state in this\n   union a republican form of government, and shall protect each of\n   them against invasion; and, on application of the legislature, or of\n   the executive, (when the legislature cannot be convened,) against\n   domestic violence.\"\n\nMark the strength and explicitness of the first clause of this section,\nto wit, \"The United States _shall guarantee_ to every state in this\nunion a republican form of government.\" Mark also especially that this\nguaranty is one of liberty, and not of slavery.\n\nWe have all of us heretofore been compelled to hear, from individuals of\nslaveholding principles, many arrogant and bombastic assertions,\ntouching the constitutional \"_guaranties_\" given to _slavery_; and\npersons, who are in the habit of taking their constitutional law from\nother men's mouths, instead of looking at the constitution for\nthemselves, have probably been led to imagine that the constitution had\nreally given such guaranties in some explicit and tangible form. We\nhave, nevertheless, seen that all those pretended guaranties are at most\nnothing but certain vague hints, insinuations, ciphers and innuendoes,\nthat are imagined to be covered up under language which legally means\nnothing of the kind. But, in the clause now cited, we do have an\nexplicit and peremptory \"guaranty,\" depending upon no implications,\ninferences or conjectures, and couched in no uncertain or ambiguous\nterms. And what is this guaranty? Is it a guaranty of slavery? No. It is\na guaranty of something flatly incompatible with slavery: a guaranty of\n\"a republican form of government to every state in this union.\"\n\nAnd what is \"a republican form of government?\" It is where the\ngovernment is a commonwealth--the property of the public, of the mass of\nthe people, or of the entire people. It is where the government is made\nup of, and controlled by the combined will and power of the public, or\nthe mass of the people--and where, of natural consequence, it will have,\nfor its object, the protection of the rights of all. It is indispensable\nto a republican form of government, that the public, the mass of the\npeople, if not the entire people, participate in the grant of powers to\nthe government, and in the protection afforded by the government. It is\nimpossible, therefore, that a government, under which any considerable\nnumber of the people, (if indeed any number of the people,) are\ndisfranchised and enslaved, can be a republic. A slave government is an\noligarchy; and one too of the most arbitrary and criminal character.\n\nStrange that men, who have eyes capable of discovering in the\nconstitution so many covert, implied and insinuated guaranties of crime\nand slavery, should be blind to the legal import of so open, explicit\nand peremptory a guaranty of freedom, equality and right.\n\nEven if there had really been, in the constitution, two such\ncontradictory guaranties, as one of liberty or republicanism in every\nstate of the Union, and another of slavery in every state where one\nportion of the people might succeed in enslaving the rest, one of these\nguaranties must have given way to the other--for, being plainly\ninconsistent with each other, they could not have stood together. And it\nmight safely have been left either to legal or to moral rules to\ndetermine which of the two should prevail--whether a provision to\nperpetuate slavery should triumph over a guaranty of freedom.\n\nBut it is constantly asserted, in substance, that there is \"_no\npropriety_\" in the general government's interfering in the local\ngovernments of the states. Those who make this assertion appear to\nregard a state as a single individual, capable of managing his own\naffairs, and of course unwilling to tolerate the intermeddling of\nothers. But a state is not an individual. It is made up of large numbers\nof individuals, each and all of whom, amid the intestine mutations and\nstrifes to which states are subject, are liable, at some time or other,\nto be trampled upon by the strongest party, and may therefore reasonably\nchoose to secure, in advance, some external protection against such\nemergencies, by making reciprocal contracts with other people similarly\nexposed in the neighboring states. Such contracts for mutual succor and\nprotection, are perfectly fit and proper for any people who are so\nsituated as to be able to contribute to each other's security. They are\nas fit and proper as any other political contracts whatever; and are\nfounded on precisely the same principle of combination for mutual\ndefence--for what are any of our political contracts and forms of\ngovernment, but contracts between man and man for mutual protection\nagainst those who may conspire to injure either or all of them? But\nthese contracts, fit and proper between all men, are peculiarly\nappropriate to those, who, while they are members of various local and\nsubordinate associations, are, at the same time, united for specific\npurposes, under one general government. Such a mutual contract, between\nthe people of all the states, is contained in this clause of the\nconstitution. And it gives to them all an additional guaranty for their\nliberties.\n\nThose who object to this guaranty, however, choose to overlook all these\nconsiderations, and then appear to imagine that their notions of\n\"propriety\" on this point, can effectually expunge the guaranty itself\nfrom the constitution. In indulging this fancy, however, they\nundoubtedly overrate the legal, and perhaps also the moral effect of\nsuch superlative fastidiousness; for even if there were \"_no propriety_\"\nin the interference of the general government to maintain a republican\nform of government in the states, still, the unequivocal pledge to that\neffect, given in the constitution, would nevertheless remain an\nirresistible rebutter to the allegation that the constitution intended\nto guaranty its opposite, slavery, an oligarchy, or a despotism. It\nwould, therefore, entirely forbid all those inferences and implications,\ndrawn by slaveholders, from those other phrases, which they quote as\nguaranties of slavery.[25]\n\nBut the \"propriety,\" and not only the propriety, but the necessity of\nthis guaranty, may be maintained on still other grounds.\n\nOne of these grounds is, that it would be impossible, consistently with\nthe other provisions of the constitution, that the general government\nitself could be republican, unless the state governments were republican\nalso. For example. The constitution provides, in regard to the choice of\ncongressional representatives, that \"the electors in each state shall\nhave the qualifications requisite for electors of the most numerous\nbranch of the state legislature.\" It was indispensable to the internal\nquiet of each state, that the same body of electors, who should\nparticipate in the suffrage of the state governments, should participate\nalso in the suffrage of the national one--and _vice versa_, that those\nwho should participate in the national suffrage, should also participate\nin that of the state. If the general and state constitutions had each a\ndifferent body of electors within each state, it would obviously give\nrise at once to implacable and irreconcilable feuds, that would result\nin the overthrow of one or the other of the governments within the\nstate. Harmony or inveterate conflict was the only alternative. As\nconflict would necessarily result in the destruction of one of the\ngovernments, harmony was the only mode by which both could be preserved.\nAnd this harmony could be secured only by giving to the same body of\nelectors, suffrage in both the governments.\n\nIf, then, it was indispensable to the existence and authority of both\ngovernments, within the territory of each state, that the same body, and\nonly the same body of electors, that were represented in one of the\ngovernments, should be represented in the other, it was clearly\nindispensable, in order that the national one should be republican, that\nthe state governments should be republican also. Hence the interest\nwhich the nation at large have in the republicanism of each of the state\ngovernments.\n\nIt being necessary that the suffrage under the national government,\nwithin each state, should be the same as for the state government, it is\napparent that unless the several state governments were all formed on\none general plan, or unless the electors of all the states were united\nin the acknowledgement of some general controlling principle, applicable\nto both governments, it would be impossible that they could unite in the\nmaintenance of a general government that should act in harmony with the\nstate governments; because the same body of electors, that should\nsupport a despotic government in the state, could not consistently or\ncordially unite, or even unite at all, in the support of a republican\ngovernment for the nation. If one portion of the state governments\nshould be republican, like Vermont, where suffrage is open to all--and\nanother portion should be oligarchies, like South Carolina, and the\nother slave states--another portion limited monarchies, like\nEngland--another portion ecclesiastical, like that of the Pope of Rome,\nor that of the ancient Jews--and another portion absolute despotisms,\nlike that of Nicholas, in Russia, or that of Francia, in Paraguay,--and\nthe same body, and only the same body, of electors, that sustained each\nof these governments at home, should be represented in the national\ngovernment, each state would send into the national legislature the\nrepresentatives of its own peculiar system of government; and the\nnational legislature, instead of being composed of the representatives\nof any one theory, or principle of government, would be made up of the\nrepresentatives of all the various theories of government that prevailed\nin the different states--from the extreme of democracy to the extreme of\ndespotism. And each of these various representatives would be obliged to\ncarry his local principles into the national legislature, else he could\nnot retain the confidence of his peculiar constituents. The consequence\nwould be, that the national legislature would present the spectacle of a\nperfect Babel of discordant tongues, elements, passions, interests and\npurposes, instead of an assembly united for the accomplishment of any\nagreed or distinct object.\n\nWithout some distinct and agreed object as a bond of union, it would\nobviously be impracticable for any general union of the whole people to\nsubsist; and that bond of union, whatever it be, must also harmonize\nwith the principles of each of the state governments, else there would\nbe a collision between the general and state governments.\n\nNow the great bond of union, agreed upon in the general government, was\n\"the rights of man\"--expressed in the national constitution by the terms\n\"liberty and justice.\" What other bond could have been agreed upon? On\nwhat other principle of government could they all have united? Could\nthey have united to sustain the divine right of kings? The feudal\nprivileges of nobles? Or the supremacy of the Christian, Mahometan, or\nany other church? No. They all denied the divine right of kings, and the\nfeudal rights of nobles; and they were of all creeds in religion. But\nthey were agreed that all men had certain natural, inherent, essential\nand inalienable rights, among which were life, liberty and the pursuit\nof happiness; and that the preservation of these rights was the\nlegitimate purpose of governments among men. They had avowed this\nprinciple before the world, had fought for it, and successfully defended\nit, against the mightiest power in the world. They had filled the world\nwith its glory; and it, in turn, had filled the world with theirs. It\nhad also gathered, and was then gathering, choice spirits, and large\nnumbers of the oppressed from other nations unto them. And this\nprinciple--in which were involved the safety, interests and rights of\neach and every one of \"the people,\" who were to unite for the formation\nof the government--now furnished a bond of union, that was at once\nsufficient, legitimate, consistent, honorable, of universal application,\nand having more general power over the hearts and heads of all of them,\nthan any other that could be found to hold them together. It comported\nwith their theory of the true objects of government. This principle,\ntherefore, they adopted as the corner-stone of their national\ngovernment; and, as a matter of necessity, all other things, on which\nthis new government was in any degree to depend, or which was to depend\nin any degree upon this government, were then made to conform to this\nprinciple. Hence the propriety of the power given to the general\ngovernment, of \"guaranteeing to every state in the Union a republican\nform of government.\" Had not this power been given to the general\ngovernment, the majorities in each state might have converted the state\ngovernments into oligarchies, aristocracies, monarchies or despotisms,\nthat should not only have trampled upon the minorities, and defeated\ntheir enjoyment of the national constitution, but also introduced such\nfactions and feuds into the national governments, as would have\ndistracted its councils, and prostrated its power.\n\nBut there were also motives of a pecuniary and social, as well as\npolitical nature, that made it proper that the nation should guarantee\nto the states a republican form of government.\n\nCommerce was to be established between the people of the different\nstates. The commerce of a free people is many times more valuable than\nthat of slaves. Freemen produce and consume vastly more than slaves.\nThey have therefore more to buy and more to sell. Hence the free states\nhave a direct pecuniary interest in the civil freedom of all the other\nstates. Commerce between free and slave states is not reciprocal or\nequal. Who can measure the increase that would have been made to the\nindustry and prosperity of the free states, if all the slaves in the\ncountry had been freemen, with all the wants and energies of freemen?\nAnd their masters had had all the thrift, industry, frugality and\nenterprise of men who depend upon their own labor, instead of the labor\nof slaves, for their prosperity? Great Britain thought it policy to\ncarry on a seven years' war against us principally to secure to herself\nthe control and benefits of the commerce of three millions of people and\ntheir posterity. But we now have nearly or quite the same number of\nslaves within our borders, and yet we think that commerce with them and\ntheir posterity is a matter with which we have no concern; that there is\n\"_no propriety_\" in that provision of the national constitution, which\nrequires that the general government--which we have invested with the\nexclusive control of all commerce among the several states--should\nsecure to these three millions the right of traffic with their fellow\nmen, and to their fellow men the right of traffic with them, against the\nimpertinent usurpations and tyranny of subordinate governments, that\nhave no constitutional right to interfere in the matter.\n\nAgain. The slave states, in proportion to their population, contribute\nnothing like an equal or equitable share to the aggregate of national\nwealth. It would probably be within the truth to say that, in proportion\nto numbers, the people of the free states have contributed ten times as\nmuch to the national wealth as the people of the slave states. Even for\nsuch wealth as the culture of their great staple, cotton, has added to\nthe nation, the south are indebted principally, if not entirely, to the\ninventive genius of a single northern man.[26] The agriculture of the\nslave states is carried on with rude and clumsy implements; by listless,\nspiritless and thriftless laborers; and in a manner speedily to wear out\nthe natural fertility of the soil, which fertility slave cultivation\nseldom or never replaces. The mechanic arts are comparatively dead among\nthem. Invention is utterly dormant. It is doubtful whether either a\nslave or a slave holder has ever invented a single important article of\nlabor-saving machinery since the foundation of the government. And they\nhave hardly had the skill or enterprise to apply any of those invented\nby others. Who can estimate the loss of wealth to the nation from these\ncauses alone? Yet we of the free states give to the south a share in the\nincalculable wealth produced by our inventions and labor-saving\nmachinery, our steam engines, and cotton gins, and manufacturing\nmachinery of all sorts, and yet say at the same time that we have no\ninterest, and that there is \"no propriety\" in the constitutional\nguaranty of that personal freedom to the people of the south, which\nwould enable them to return us some equivalent in kind.\n\nFor the want, too, of an enforcement of this guaranty of a republican\nform of government to each of the states, the population of the country,\nby the immigration of foreigners, has no doubt been greatly hindered.\nMultitudes almost innumerable, who would have come here, either from a\nlove of liberty, or to better their conditions, and given the country\nthe benefit of their talents, industry and wealth, have no doubt been\ndissuaded or deterred by the hideous tyranny that rides triumphant in\none half of the nation, and extends its pestiferous and detested\ninfluence over the other half.\n\n_Socially_, also, we have an interest in the freedom of all the states.\nWe have an interest in free personal intercourse with all the people\nliving under a common government with ourselves. We wish to be free to\ndiscuss, with any and all of them, all the principles of liberty and all\nthe interests of humanity. We wish, when we meet a fellow man, to be at\nliberty to speak freely with him of his and our condition; to be at\nliberty to do him a service; to advise with him as to the means of\nimproving his condition; and, if need be, to ask a kindness at his\nhands. But all these things are incompatible with slavery. Is this such\nan union as we bargained for? Was it \"nominated in the bond,\" that we\nshould be cut off from these the common rights of human nature? If so,\npoint to the line and letter, where it is so written. Neither of them\nare to be found. But the contrary is expressly guarantied against the\npower of both the governments, state and national; for the national\ngovernment is prohibited from passing any law abridging the freedom of\nspeech and the press, and the state governments are prohibited from\nmaintaining any other than a republican form of government, which of\ncourse implies the same freedom.\n\nThe nation at large have still another interest in the republicanism of\neach of the states; an interest, too, that is indicated in the same\nsection in which this republicanism is guarantied. This interest results\nfrom the fact that the nation are pledged to \"protect\" each of the\nstates \"against domestic violence.\" Was there no account taken--in\nreference either to the cost or the principle of this undertaking--as to\nwhat might be the character of the state governments, which we are thus\npledged to defend against the risings of the people? Did we covenant, in\nthis clause, to wage war against the rights of man? Did we pledge\nourselves that those, however few, who might ever succeed in getting the\ngovernment of a state into their hands, should thenceforth be recognized\nas the legitimate power of the state, and be entitled to the whole force\nof the general government to aid them in subjecting the remainder of the\npeople to the degradation and injustice of slavery? Or did the nation\nundertake only to guarantee the preservation of \"a republican form of\ngovernment\" against the violence of those who might prove its enemies?\nThe reason of the thing, and the connexion, in which the two provisions\nstand in the constitution, give the answer.\n\nWe have yet another interest still, and that no trivial one, in the\nrepublicanism of the state governments; an interest indicated, too, like\nthe one last mentioned, in the very section in which this republicanism\nis assured. It relates to the defence against invasion. The general\ngovernment is pledged to defend each of the states against invasion. Is\nit a thing of no moment, whether we have given such a pledge to free or\nto slave states? Is there no difference in the cost and hazard of\ndefending one or the other? Is it of no consequence to the expense of\nlife and money, involved in this undertaking, whether the people of the\nstate invaded shall be united, as freemen naturally will be, as one man\nagainst the enemy? Or whether, as in slave states, half of them shall be\nburning to join the enemy, with the purpose of satisfying with blood the\nlong account of wrong that shall have accrued against their oppressors?\nDid Massachusetts--who during the war of the revolution furnished more\nmen for the common defence, than all the six southern states\ntogether--did she, immediately on the close of that war, pledge herself,\nas the slave holders would have it, that she would lavish her life in\nlike manner again, for the defence of those whose wickedness and tyranny\nin peace should necessarily multiply their enemies and make them\ndefenceless in war? If so, on what principle, or for what equivalent,\ndid she do it? Did she not rather take care that the guaranty for a\nrepublican government should be inserted in the same paragraph with that\nfor protection against invasion, in order that both the principle and\nthe extent of the liability she incurred, might distinctly appear?\n\nThe nation at large, then, as a political community under the\nconstitution, have both interests and rights, and both of the most vital\ncharacter, in the republicanism of each of the state governments. The\nguaranty given by the national constitution, securing such a government\nto each of the states, is therefore neither officious nor impertinent.\nOn the contrary, this guaranty was a _sine qua non_ to any national\ncontract of union; and the enforcement of it is equally indispensable,\nif not to the continuance of the union at all, certainly to its\ncontinuance on any terms that are either safe, honorable or equitable\nfor the north.\n\nThis guaranty, then, is not idle verbiage. It is full of meaning. And\nthat meaning is not only fatal to slavery itself, but it is fatal also\nto all those pretences, constructions, surmises and implications, by\nwhich it is claimed that the national constitution sanctions, legalizes,\nor even tolerates slavery.\n\n[Footnote 18: This language of the Supreme Court contains an admission\nof the truth of the charge just made against judges, viz: that rather\nthan lose their offices, they will violate what they know to be law, in\nsubserviency to the legislatures on whom they depend; for it admits,\n1st, that the preservation of men's _rights_ is the vital principle of\nlaw, and, 2d, that courts, (and the Supreme Court of the United States\nin particular,) will trample upon that principle at the bidding of the\nlegislature, when the mandate comes in the shape of a statute of such\n\"_irresistible clearness_,\" that its meaning cannot be evaded.]\n\n[Footnote 19: \"Laws are construed strictly to save a right.\"--_Whitney\net al._ vs. _Emmett et al., 1 Baldwin, C.C.R._ 316.\n\n\"No law will make a construction do wrong; and there are some things\nwhich the law favors, and some it dislikes; it favoreth those things\nthat come from the order of nature.\"--_Jacob's Law Dictionary, title\nLaw._]\n\n[Footnote 20: In the convention that framed the constitution, when this\nclause was under discussion, \"servants\" were spoken of as a distinct\nclass from \"slaves.\" For instance, \"Mr. Butler and Mr. Pickney moved to\nrequire 'fugitive slaves and servants to be delivered up like\ncriminals.'\" Mr. Sherman objected to delivering up either slaves or\nservants. He said he \"saw no more propriety in the public seizing and\nsurrendering a slave or servant, than a horse.\"--_Madison Papers, p.\n1447-8._\n\nThe language finally adopted shows that they at last agreed to deliver\nup \"_servants_,\" but _not \"slaves\"_--for as the word \"servant\" does not\nmean \"slave,\" the word \"service\" does not mean slavery.\n\nThese remarks in the convention are quoted, not because the intentions\nof the convention are of the least legal consequence whatever; but to\nrebut the silly arguments of those who pretend that the convention, and\nnot the people, adopted the constitution--and that the convention did\nnot understand the legal difference between the word \"servant\" and\n\"slave,\" and therefore used the word \"service,\" in this clause, as\nmeaning slavery.]\n\n[Footnote 21: Gibbons _vs._ Ogden.--(9 Wheaton, 1.)]\n\n[Footnote 22: \"The government (of the U.S.) proceeds directly from the\npeople; is 'ordained and established' in the name of the\npeople.\"--_M'Culloch_ vs. _Maryland_, 4 _Wheaton_, 403.\n\n\"The government of the Union is emphatically and truly, a government of\nthe people; and in form and in substance it emanates from them. Its\npowers are granted by them, and are to be exercised directly on them,\nand for their benefit.\"--_Same_, pages 404, 405.\n\n\"The constitution of the United States was ordained and established, not\nby the United States in their sovereign capacities, but emphatically, as\nthe preamble of the constitution declares, by 'the people of the United\nStates.'\"--_Martin_ vs. _Hunter's lessee_, 1 _Wheaton_, 324.]\n\n[Footnote 23: That is, male persons. The constitution, whenever it uses\nthe pronoun, in speaking of the president, uniformly uses the masculine\ngender--from which it may be inferred that male persons only were\nintended to be made eligible to the office.]\n\n[Footnote 24: Somerset was not a citizen of England, or entitled, as\nsuch, to the protection of the English law. The privilege of the writ of\n_habeas corpus_ was granted to him on the ground simply of his being a\nman.]\n\n[Footnote 25: From whom come these objections to the \"propriety\" of the\ngeneral government's interfering to maintain republicanism in the\nstates? Do they not come from those who have ever hitherto claimed that\nthe general government was bound to interfere to _put down\nrepublicanism_? And that those who were _republicans_ at the north,\nmight with perfect \"propriety\" and consistency, pledge their assistance\nto the despots of the south, to sustain the worst, the meanest and most\natrocious of tyrannies? Yes, from the very same. To interfere to assist\none half of the people of a state in the cowardly, cruel and fiendish\nwork of crushing the other half into the earth, corresponds precisely\nwith their chivalrous notions of \"propriety;\" but it is insufferable\nofficiousness for them to form any political compacts that will require\nthem to interfere to protect the weak against the tyranny of the strong,\nor to maintain justice, liberty, peace and freedom.]\n\n[Footnote 26: Eli Whitney.]\n\n\n\n\nCHAPTER IX.\n\nTHE INTENTIONS OF THE CONVENTION.\n\n\nThe intentions of the framers of the constitution, (if we could have, as\nwe cannot, any _legal_ knowledge of them, except from the words of the\nconstitution,) have nothing to do with fixing the legal meaning of the\nconstitution. That convention were not delegated to adopt or establish a\nconstitution; but only to consult, devise and recommend. The instrument,\nwhen it came from their hands, was a mere proposal, having no legal\nforce or authority. It finally derived all its validity and obligation,\nas a frame of government, from its adoption by the people at large.[27]\nOf course the intentions of the people at large are the only ones, that\nare of any importance to be regarded in determining the legal meaning of\nthe instrument. And their intentions are to be gathered entirely from\nthe words, which they adopted to express them. And their intentions must\nbe presumed to be just what, and only what the words of the instrument\n_legally_ express. In adopting the constitution, the people acted as\nlegislators, in the highest sense in which that word can be applied to\nhuman lawgivers. They were establishing a law that was to govern both\nthemselves and their government. And their intentions, like those of\nother legislators, are to be gathered from the words of their\nenactments. Such is the dictate of both law and common sense.[28] The\ninstrument had been reported by their committee, the convention. But the\npeople did not ask this committee what was the legal meaning of the\ninstrument reported. They adopted it, judging for themselves of its\nlegal meaning, as any other legislative body would have done. The people\nat large had not even an opportunity of consultation with the members of\nthe convention, to ascertain their opinions. And even if they had\nconsulted them, they would not have been bound at all by their opinions.\nBut being unable to consult them, they were compelled to adopt or reject\nthe instrument, on their own judgment of its meaning, without any\nreference to the opinions of the convention. The instrument, therefore,\nis now to be regarded as expressing the intentions of the people at\nlarge; and not the intentions of the convention, if the convention had\nany intentions differing from the meaning which the law gives to the\nwords of the instrument.\n\nBut why do the partizans of slavery resort to the debates of the\nconvention for evidence that the constitution sanctions slavery? Plainly\nfor no other reason than because the words of the instrument do not\nsanction it. But can the intentions of that convention, attested only by\na mere skeleton of its debates, and not by any impress upon the\ninstrument itself, add any thing to the words, or to the legal meaning\nof the words of the constitution? Plainly not. Their intentions are of\nno more consequence, in a legal point of view, than the intentions of\nany other equal number of the then voters of the country. Besides, as\nmembers of the convention, they were not even parties to the instrument;\nand no evidence of their intentions, at _that_ time, is applicable to\nthe case. They became parties to it only by joining with the rest of the\npeople in its subsequent adoption; and they themselves, equally with\nthe rest of the people, must then be presumed to have adopted its legal\nmeaning, and that alone--notwithstanding any thing they may have\npreviously said. What absurdity then is it to set up the opinions\nexpressed in the convention, and by a few only of its members, in\nopposition to the opinions expressed by the whole people of the country,\nin the constitution itself.\n\nBut notwithstanding the opinions expressed in the convention by some of\nthe members, we are bound, as a matter of law, to presume that the\nconvention itself, in the aggregate, had no intention of sanctioning\nslavery--and why? Because, after all their debates, they agreed upon an\ninstrument that did not sanction it. This was confessedly the result in\nwhich all their debates terminated. This instrument is also the _only_\nauthentic evidence of their intentions. It is subsequent in its date to\nall the other evidence. It comes to us, also, as none of the other\nevidence does, _signed with their own hands_. And is this to be set\naside, and the constitution itself to be impeached and destroyed, and\nfree government overturned, on the authority of a few meagre snatches of\nargument, intent or opinion, uttered by a few only of the members;\njotted down by one of them, (Mr. Madison,) merely for his own\nconvenience, or from the suggestions of his own mind; and only reported\nto us fifty years afterwards by a posthumous publication of his papers?\nIf any thing could excite the utter contempt of the people of this\nnation for the miserable subterfuges, to which the advocates of slavery\nresort, it would seem that their offering such evidence as this in\nsupport of their cause, must do it. And yet these, and such as these\nmere fragments of evidence, all utterly inadmissible and worthless in\ntheir kind, for any legal purpose, constitute the warp and the woof, the\nvery _sine qua non_ of the whole argument for slavery.\n\nDid Mr. Madison, when he took his oath of office, as president of the\nUnited States, swear to support these scraps of debate, which he had\nfiled away among his private papers?--Or did he swear to support that\nwritten instrument, which the people of the country had agreed to, and\nwhich was known to them, and to all the world, as the constitution of\nthe United States.[29]\n\nBut even if the unexpressed intentions, which these notes of debate\nascribe to certain members, had been participated in by the whole\nconvention, we should have had no right to hold the people of the\ncountry at large responsible for them. _This convention sat with closed\ndoors_, and it was not until near fifty years after the people had\nadopted the constitution itself, that these private intentions of the\nframers authentically transpired. And even now all the evidence\ndisclosed implicates, _directly and absolutely_, but few of the\nmembers--not even all from the slaveholding states. The intentions of\nall the rest, we have a right to presume, concurred with their votes and\nthe words of the instrument; and they had therefore no occasion to\nexpress contrary ones in debate.\n\nBut suppose that _all_ the members of the convention had participated in\nthese intentions--what then? Any forty or fifty men, like those who\nframed the constitution, may now secretly concoct another, that is\nhonest in its terms, and yet in secret conclave confess to each other\nthe criminal objects they intend to accomplish by it, if its honest\ncharacter should enable them to secure for it the adoption of the\npeople.--But if the people should adopt such constitution, would they\nthereby adopt any of the criminal and secret purposes of its authors? Or\nif the guilty confessions of these conspirators should be revealed fifty\nyears afterwards, would judicial tribunals look to them as giving the\ngovernment any authority for violating the legal meaning of the words of\nsuch constitution, and for so construing them as to subserve the\ncriminal and shameless purposes of its originators?\n\nThe members of the convention, as such, were the mere scriveners of the\nconstitution; and their individual purposes, opinions or expressions,\nthen uttered in secret cabal, though now revealed, can no more be\nevidence of the intentions of the people who adopted the constitution,\nthan the secret opinions or expressions of the scriveners of any other\ncontract can be offered to prove the intentions of the true parties to\nsuch contract. As framers of the constitution, the members of the\nconvention gave to it no validity, meaning, or legal force. They simply\ndrafted it, and offered it, such as it legally might be, to the people\nfor their adoption or rejection. The people, therefore, in adopting it,\nhad no reference whatever to the opinions of the convention. They had no\nauthentic evidence of what those opinions were. They looked simply at\nthe instrument. And they adopted even its legal meaning by a bare\nmajority. If the instrument had contained any tangible sanction of\nslavery, the people would sooner have had it burned by the hands of the\ncommon hangman, than they would have adopted it, and thus sold\nthemselves as pimps to slavery, covered as they were with the scars they\nhad received in fighting the battles of freedom. And the members of the\nconvention knew that such was the feeling of a large portion of the\npeople; and for that reason, if for no other, they dared insert in the\ninstrument no legal sanction of slavery. They chose rather to trust to\ntheir craft and influence to corrupt the government, (of which they\nthemselves expected to be important members,) after the constitution\nshould have been adopted, rather than ask the necessary authority\ndirectly from the people. And the success they have had in corrupting\nthe government, proves that they judged rightly in presuming that the\ngovernment would be more flexible than the people.\n\nFor other reasons, too, the people should not be charged with designing\nto sanction any of the secret intentions of the convention. When the\nstates sent delegates to the convention, no avowal was made of any\nintention to give any national sanction to slavery. The articles of\nconfederation had given none; the then existing state constitutions gave\nnone; and it could not have been reasonably anticipated by the people\nthat any would have been either asked for or granted in the new\nconstitution. If such a purpose had been avowed by those who were at the\nbottom of the movement, the convention would doubtless never have been\nheld. The avowed objects of the convention were of a totally different\ncharacter. Commercial, industrial and defensive motives were the\nprominent ones avowed. When, then, the constitution came from the hands\nof such a convention, unstained with any legal or tangible sanction of\nslavery, were the people--who, from the nature of the case, could not\nassemble to draft one for themselves--bound either to discard it, or\nhold themselves responsible for all the secret intentions of those who\nhad drafted it? Had they no power to adopt its legal meaning, and that\nalone! Unquestionably they had the power; and, as matter of law, as well\nas fact, it is equally unquestionable that they exercised it. Nothing\nelse than the constitution, as a legal instrument, was offered to them\nfor their adoption. Nothing else was legally before them that they could\nadopt. Nothing else, therefore, did they adopt.\n\nThis alleged design, on the part of the convention, to sanction slavery,\nis obviously of no consequence whatever, unless it can be transferred to\nthe people who adopted the constitution. Has any such transfer ever been\nshown? Nothing of the kind. It may have been known among politicians;\nand may have found its way into some of the state conventions. But there\nprobably is not a little of evidence in existence, that it was generally\nknown among the mass of the people. And, in the nature of things, it was\nnearly impossible that it should have been known by them. The national\nconvention had sat with closed doors. Nothing was known of their\ndiscussions, except what was personally reported by the members. Even\nthe discussions in the _state_ conventions could not have been known to\nthe people at large; certainly not until after the constitution had been\nratified by those conventions. The ratification of the instrument, by\nthose conventions, followed close on the heels of their\ndiscussions.--The population meanwhile was thinly scattered over the\ncountry. The public papers were few, and small, and far between. They\ncould not even make such reports of the discussions of public bodies, as\nnewspapers now do. The consequence must have been that the people at\nlarge knew nothing of the intentions of the framers of the constitution,\nbut from its words, until after it was adopted. Nevertheless, it is to\nbe constantly borne in mind, that even if the people had been fully\ncognizant of those intentions, they would not therefore have adopted\nthem, or become at all responsible for them, so long as the intentions\nthemselves were not incorporated in the instrument. Many selfish,\nambitious and criminal purposes, not expressed in the constitution, were\nundoubtedly intended to be accomplished by one and another of the\nthousands of unprincipled politicians, that would naturally swarm around\nthe birth-place, and assist at the nativity of a new and splendid\ngovernment. But the people are not therefore responsible for those\npurposes; nor are those purposes, therefore, a part of the constitution;\nnor is its language to be construed with any view to aid their\naccomplishment.\n\nBut even if the people intended to sanction slavery by adopting the\nintentions of the convention, it is obvious that they, like the\nconvention, intended to use no language that should legally convey that\nmeaning, or that should necessarily convict them of that intention in\nthe eyes of the world.--They, at least, had enough of virtuous shame to\ninduce them to conceal this intention under the cover of language, whose\nlegal meaning would enable them always to aver,\n\n   \"Thou canst not say I did it.\"\n\nThe intention, therefore, that the judiciary should construe certain\nlanguage into an authority for slavery, when such is not the legal\nmeaning of the language itself, cannot be ascribed to the people, except\nupon the supposition that the people presumed their judicial tribunals\nwould have so much less of shame than they themselves, as to _volunteer_\nto carry out these their secret wishes, by going beyond the words of the\nconstitution they should be sworn to support, and violating all legal\nrules of construction, and all the free principles of the instrument. It\nis true that the judiciary, (whether the people intended it or not,)\nhave proved themselves to be thus much, at least, more shameless than\nthe people, or the convention. Yet that is not what ought to have been\nexpected of judicial tribunals. And whether such were really the\nintention of the convention, or the people, is, at least a matter of\nconjecture and history, and not of law, nor of any evidence cognizable\nby any judicial tribunal.\n\nWhy should we search at all for the intentions, either of the\nconvention, or of the people, beyond the words which both the convention\nand the people have agreed upon to express them? What is the object of\nwritten constitutions, and written statutes, and written contracts? Is\nit not that the meaning of those who make them may be known with the\nmost absolute precision of which language is capable? Is it not to get\nrid of all the fraud, and uncertainty, and disagreements of oral\ntestimony? Where would be our constitution, if, instead of its being a\nwritten instrument, it had been merely agreed upon orally by the members\nof the convention? And by them only orally reported to the people? And\nonly this oral report of it had been adopted by the people? And all our\nevidence of what it really was, had rested upon reports of what Mr. A,\nand Mr. B, members of the convention, had been heard to say? Or upon Mr.\nMadison's notes of the debates of the convention? Or upon the oral\nreports made by the several members to their respective constituents, or\nto the respective state conventions? Or upon flying reports of the\nopinions which a few individuals, out of the whole body of the people,\nhad formed of it when they adopted it? No two of the members of the\nconvention would probably have agreed in their representations of what\nthe constitution really was. No two of the people would have agreed in\ntheir understanding of the constitution when they adopted it. And the\nconsequence would have been that we should really have had no\nconstitution at all. Yet there is as much ground, both in reason and in\nlaw, for thus throwing aside the _whole_ of the written instrument, and\ntrusting entirely to these other sources for evidence of what any part\nof the constitution really is, as there is for throwing aside those\nparticular portions of the written instrument, which bear on slavery,\nand attempting to supply their place from such evidence as these other\nsources may chance to furnish. And yet, to throw aside the written\ninstrument, so far as its provisions are prohibitory of slavery, and\nmake a new constitution on that point, out of other testimony, is the\nonly means, confessedly the only means, by which slavery can be made\nconstitutional.\n\nAnd what is the object of resorting to these flying reports for\nevidence, on which to change the meaning of the constitution? Is it to\nchange the instrument from a dishonest to an honest one? from an unjust\nto a just one? No. But directly the reverse--and solely that dishonesty\nand injustice may be carried into effect. A purpose, for which no\nevidence of any kind whatever could be admitted in a court of justice.\n\nAgain. If the principle be admitted, that the meaning of the\nconstitution can be changed, on proof being made that the scriveners or\nframers of it had secret and knavish intentions, which do not appear on\nthe face of the instrument, then perfect license is given to the\nscriveners of constitutions to contrive any secret scheme of villainy\nthey may please, and impose it upon the people as a system of\ngovernment, under cover of a written instrument that is so plainly\nhonest and just in its terms, that the people readily agree to it. Is\nsuch a principle to be admitted in a country where the people claim the\nprerogative of establishing their own government, and deny the right of\nany body to impose a government upon them, either by force, or fraud, or\nagainst their will?\n\nFinally. The constitution is a contract; a written contract, consisting\nof a certain number of precise words, to which, and to which only, all\nthe parties to it have, in theory, agreed. Manifestly neither this\ncontract, nor the meaning of its words, can be changed, without the\nconsent of all the parties to it. Nor can it be changed on a\nrepresentation, to be made by any number of them less than the whole,\nthat they intended any thing different from what they have said. To\nchange it, on the representation of a part, without the consent of the\nrest, would be a breach of contract as to all the rest. And to change\nits _legal meaning_, without their consent, would be as much a breach of\nthe contract as to change its words. If there were a single honest man\nin the nation, who assented, in good faith, to the honest and legal\nmeaning of the constitution, it would be unjust and unlawful to change\nthe meaning of the instrument so as to sanction slavery, even though\nevery other man in the nation should testify that, in agreeing to the\nconstitution, he intended that slavery should be sanctioned. If there\nwere _not_ a single honest man in the nation, who adopted the\nconstitution in good faith, and with the intent that its legal meaning\nshould be carried into effect, its legal meaning would nevertheless\nremain the same; for no judicial tribunal could lawfully allow the\nparties to it to come into court and allege their dishonest intentions,\nand claim that they be substituted for the legal meaning of the words of\nthe instrument.\n\n[Footnote 27: The Supreme Court say, \"The instrument, when it came from\ntheir hands, (that is, the hands of the convention,) was a mere\nproposal, without obligation or pretension to it.\" \"The people were at\nperfect liberty to accept or reject it; and their act was\nfinal.\"--_M'Cullock_ vs. _Maryland_,--4 _Wheaton_ 403-4.]\n\n[Footnote 28: The Supreme Court of the United States say:\n\n\"The intention of the instrument must prevail: _this intention must be\ncollected from its words_.\"--_Ogden_ vs. _Saunders_,--12 _Wheaton_, 332.\n\n\"The intention of the legislature is to be searched for in the words\nwhich the legislature has employed to convey it.\"--_Schr. Paulina's\nCargo_ vs. _United States_,--7 _Cranch_, 60.]\n\n[Footnote 29: \"Elliot's Debates,\" so often referred to, are, if\npossible, a more miserable authority than Mr. Madison's notes. He seems\nto have picked up the most of them from the newspapers of the day, in\nwhich they were reported by nobody now probably knows whom. In his\npreface to his first volume, containing the debates in the Massachusetts\nand New York conventions, he says:\n\n\"In the compilation of this volume, care has been taken to search into\ncontemporary publications, in order to make the work as perfect as\npossible; still, however, the editor is sensible, from the daily\nexperience of newspaper reports, of the present time, that the\nsentiments they contain may, in some instances, have been inaccurately\ntaken down, and in others, probably too faintly sketched, fully to\ngratify the inquisitive politician.\" He also speaks of them as \"rescued\nfrom the ephemeral prints of that day, and now, for the first time,\npresented in a uniform and durable form.\"\n\nIn the preface to his second volume, which is devoted to the Virginia\nconvention, he says the debates were reported by an able stenographer,\nDavid Robertson; and then quotes the following from Mr. Wirt, in a note\nto the life of Patrick Henry:\n\n\"From the skill and ability of the reporter, there can be no doubt that\nthe substance of the debates, as well as their general course, are\naccurately preserved.\"\n\nIn his preface to the third volume, embracing the North Carolina and\nPennsylvania conventions, he says:\n\n\"The _first_ of the two North Carolina conventions is contained in this\nvolume; the _second_ convention, it is believed, _was neither\nsystematically reported nor printed_.\" \"The debates in the Pennsylvania\nconvention, that have been preserved, it appears, _are on one side\nonly_; a search into the contemporary publications of the day, has been\nunsuccessful to furnish us with the other side of the question.\"\n\nIn his preface to the fourth volume, he says:\n\n\"In compiling the opinions, on constitutional questions, delivered in\ncongress, by some of the most enlightened senators and representatives,\nthe files of the New York and Philadelphia newspapers, from 1789 to\n1800, had to be relied on; from the latter period to the present, the\nNational Intelligencer is the authority consulted for the desired\ninformation.\"\n\nIt is from such stuff as this, collected and published thirty-five and\nforty years after the constitution was adopted--stuff very suitable for\nconstitutional dreams to be made of--that our courts and people now make\ntheir constitutional law, in preference to adopting the law of the\nconstitution itself. In this way they manufacture law strong enough to\nbind three millions of men in slavery.]\n\n\n\n\nCHAPTER X.\n\nTHE PRACTICE OF THE GOVERNMENT.\n\n\nThe practice of the government, under the constitution, has not altered\nthe legal meaning of the instrument. It means now what it did before it\nwas ratified, when it was first offered to the people for their adoption\nor rejection. One of the advantages of a written constitution is, that\nit enables the people to see what its character is before they adopt it;\nand another is, that it enables them to see, after they have adopted it,\nwhether the government adheres to it, or departs from it. Both these\nadvantages, each of which is indispensable to liberty, would be entirely\nforfeited, if the legal meaning of a written constitution were one thing\nwhen the instrument was offered to the people for their adoption, and\ncould then be made another thing by the government after the people had\nadopted it.\n\nIt is of no consequence, therefore, what meaning the government _have_\nplaced upon the instrument; but only what meaning they were _bound to\nplace upon it_ from the beginning.\n\nThe only question, then, to be decided, is, what was the meaning of the\nconstitution, _as a legal instrument_, when it was first drawn up, and\npresented to the people, and before it was adopted by them?\n\nTo this question there certainly can be but one answer.--There is not\nroom for a doubt or an argument, on that point, in favor of slavery. The\ninstrument itself is palpably a free one throughout, in its language,\nits principles, and all its provisions. As a legal instrument, there is\nno trace of slavery in it. It not only does not sanction slavery, but it\ndoes not even recognize its existence. More than this, it is palpably\nand wholly incompatible with slavery. It is also the supreme law of the\nland, in contempt of any state constitution or law that should attempt\nto establish slavery.\n\nSuch was the character of the constitution when it was offered to the\npeople, and before it was adopted. And if such was its character then,\nsuch is its character still. It cannot have been changed by all the\nerrors and perversions, intentional or unintentional, of which the\ngovernment may have since been guilty.\n\n\n\n\nCHAPTER XI.\n\nTHE UNDERSTANDING OF THE PEOPLE.\n\n\nAlthough the inquiry may be of no legal importance, it may nevertheless\nbe one pertinent to the subject, whether it be matter of _history_\neven--to say nothing of legal proof--that the _people_ of the country\ndid really understand or believe that the constitution sanctioned\nslavery? Those who make the assertion, are bound to prove it. The\npresumption is against them. Where is their contrary history?\n\nThey will say that a part of the people were actually slaveholders, and\nthat it is unreasonable to suppose they would have agreed to the\nconstitution, if they had understood it to be a free one.\n\nThe answer to this argument is, that the actual slaveholders were few in\nnumber compared with the whole people; comprising probably not more than\none-eighth or one-sixth of the voters, and one-fortieth or one-thirtieth\nof the whole population. They were so few as to be manifestly incapable\nof maintaining any separate political organization; or even of holding\ntheir slave property, except under the sufferance, toleration and\nprotection of the non-slaveholders. They were compelled, therefore, to\nagree to any political organization, which the non-slaveholders should\ndetermine on. This was at that time the case even in the strongest of\nthe slaveholding states themselves. In all of them, without exception,\nthe slaveholders were either obliged to live, or from choice did live,\nunder free constitutions. They, of course, held their slave property in\ndefiance of their constitutions. They were enabled to do this through\nthe corrupting influence of their wealth and union. Controlling a large\nproportion of the wealth of their states, their social and political\ninfluence was entirely disproportionate to their numbers. They could act\nin concert. They could purchase talent by honors, offices and money.\nBeing always united, while the non-slaveholders were divided, they could\nturn the scale in elections, and fill most of the offices with\nslaveholders. Many of the non-slaveholders doubtless were poor,\ndependent and subservient, (as large portions of the non-slaveholders\nare now in the slaveholding states,) and lent themselves to the support\nof slavery almost from necessity. By these, and probably by many other\ninfluences that we cannot now understand, they were enabled to maintain\ntheir hold upon their slave property in defiance of their constitutions.\nIt is even possible that the slaveholders themselves did not choose to\nhave the subject of slavery mentioned in their constitutions; that they\nwere so fully conscious of their power to corrupt and control their\ngovernments, that they did not regard any constitutional provision\nnecessary for their security; and that out of mere shame at the\ncriminality of the thing, and its inconsistency with all the principles\nthe country had been fighting for and proclaiming, they did not wish it\nto be named.\n\nBut whatever may have been the cause of the fact, the fact itself is\nconspicuous, that from some cause or other, either with the consent of\nthe slaveholders, or in defiance of their power, the constitutions of\nevery one of the thirteen states were at that time free ones.\n\nNow is it not idle and useless to pretend, when even the strongest\nslaveholding states had free constitutions--when not one of the separate\nstates, acting for itself, would have any but a free constitution--that\nthe whole thirteen, when acting in unison, should concur in establishing\na slaveholding one? The idea is preposterous. The single fact that all\nthe state constitutions were at that time free ones, scatters for ever\nthe pretence that the majority of the people of all the states either\nintended to establish, _or could have been induced to establish_, any\nother than a free one for the nation. Of course it scatters also the\npretence that they believed or understood that they were establishing\nany but a free one.\n\nThere very probably may have been a general belief among the people,\nthat slavery would for a while live on, on sufferance; that the\ngovernment, until the nation should have become attached to the\nconstitution, and cemented and consolidated by the habit of union, would\nbe too weak, and too easily corrupted by the innumerable and powerful\nappliances of slaveholders, to wrestle with and strangle slavery. But to\nsuppose that the nation at large did not look upon the constitution as\ndesigned to destroy slavery, whenever its principles should be carried\ninto full effect, is obviously to suppose an intellectual impossibility;\nfor the instrument was plain, and the people had common sense; and those\ntwo facts cannot stand together consistently with the idea that there\nwas any general, or even any considerable misunderstanding of its\nmeaning.\n\n\n\n\nCHAPTER XII.\n\nTHE STATE CONSTITUTIONS OF 1845.\n\n\nOf all the existing state constitutions, (excepting that of Florida,\nwhich I have not seen,) not one of them contains provisions that are\nsufficient, (or that would be sufficient if not restrained by the\nconstitution of the United States,) to authorize the slavery that exists\nin the states. The material deficiency in all of them is, that they\nneither designate, nor give the legislatures any authority to designate\nthe persons, who may be made slaves. Without such a provision, all their\nother provisions in regard to slaves are nugatory, simply because their\napplication is legally unknown. They would apply as well to whites as to\nblacks, and would as much authorize the enslavement of whites as of\nblacks.\n\nWe have before seen that none of the state constitutions, that were in\nexistence in 1789, recognized slavery at all. Since that time, four of\nthe old thirteen states, viz., Maryland, North Carolina, South Carolina\nand Georgia, have altered their constitutions so as to make them\nrecognize slavery; yet not so as to provide for any legal designation of\nthe persons to be made slaves.\n\nThe constitution of South Carolina has a provision that implies that\n_some_ of the slaves, at least, are \"negroes;\" but not that all slaves\nare negroes, nor that all negroes are slaves. The provision, therefore,\namounts to nothing for the purposes of a constitutional designation of\nthe persons who may be made slaves.\n\nThe constitutions of Tennessee and Louisiana make no direct mention of\nslaves; and have no provisions in favor of slavery, unless the general\none for continuing existing laws in force, be such a one. But both have\nspecific provisions inconsistent with slavery. Both purport to be\nestablished by \"the people;\" both have provisions for the writ of\n_habeas corpus_. Indeed, the constitutions of most of the slave states\nhave provisions for this writ, which, as has been before shown, denies\nthe right of property in man. That of Tennessee declares also \"that all\ncourts shall be open, and _every man_, for an injury done him in his\nlands, goods, person or reputation, shall have remedy by due course of\nlaw, and right and justice administered without sale, denial or delay.\"\nTennessee also was formerly a part of North Carolina; was set off from\nher while the constitution of North Carolina was a free one. Of course\nthere has never been any legal slavery in Tennessee.\n\nThe constitutions of the states of Kentucky, Missouri, Arkansas,\nMississippi, and Alabama, all have provisions about slaves; yet none of\nthem tell us who may be slaves. Some of them indeed provide for the\nadmission into their state of such persons as are slaves under the laws,\n(which of course means only the _constitutional_ laws,) _of other\nstates_. But when we go to those other states, we find that their\nconstitutions have made no designation of the persons who may be made\nslaves; and therefore we are as far from finding the actual persons of\nthe slaves as we were before.\n\nThe principal provision, in the several state constitutions, recognizing\nslavery, is, in substance, this, that the legislature shall have no\npower to _emancipate_ slaves without the consent of their owners, or\nwithout making compensation. But this provision is of no avail to\nlegalize slavery, for slavery must be _constitutionally established_,\nbefore there can be any legal slaves to be emancipated; and it cannot be\nestablished without describing the persons who may be made slaves.\n\nKentucky was originally a part of Virginia, and derived her slaves from\nVirginia. As the constitution of Virginia was always a free one, it gave\nno authority for slavery in that part of the state which is now\nKentucky. Of course Kentucky never had any legal slavery.\n\nSlavery was positively prohibited in all the states included in the\nLouisiana purchase, by the third article of the treaty of cession--which\nis in these words:--\n\n   Art. 3. \"The _inhabitants_\" (that is, _all_ the inhabitants,) \"of the\n   ceded territory shall be incorporated in the union of the United\n   States, and admitted as soon as possible, _according to the\n   principles of the federal constitution_, to the enjoyment of all the\n   rights, advantages, and immunities of _citizens_ of the United\n   States; and, in the mean time, they shall be maintained and protected\n   in the free enjoyment of their liberty, property, and the religion\n   which they profess.\"\n\nThe cession of Florida to the United States was made on the same terms.\nThe words of the treaty, on this point, are as follows:--\n\n   \"Art. 6. The _inhabitants_ of the territories, which his Catholic\n   majesty cedes to the United States by this treaty, shall be\n   incorporated in the Union of the United States, as soon as may be\n   consistent with the principles of the federal constitution, and\n   admitted to the enjoyment of all the privileges, rights and\n   immunities of the _citizens_ of the United States.\"\n\nTo allow _any_ of the \"inhabitants,\" included in those treaties, to be\nheld as slaves, or denied the rights of citizenship under the United\nStates' constitution, is a plain breach of the treaties.\n\nThe constitutions of some of the slave states have provisions like this,\nviz., that all laws previously in force, shall remain in force until\nrepealed, unless repugnant to this constitution. But I think there is no\ninstance, in which the slave acts, then on their statute books, could be\nperpetuated by this provision--and for two reasons; 1st. These slave\nacts were previously unconstitutional, and therefore were not, legally\nspeaking, \"laws in force.\"[30] 2d. Every constitution, I think, that has\nthis provision, has one or more other provisions that _are_ \"repugnant\"\nto the slave acts.\n\n[Footnote 30: This principle would apply, as we have before seen, where\nthe change was from the _colonial_ to a state government. It would also\napply to all cases where the change took place, under the constitution\nof the United States, from a _territorial_ to a state government. It\nneeds no argument to prove that all our territorial statutes, that have\npurported to authorize slavery, were unconstitutional.]\n\n\n\n\nCHAPTER XIII.\n\nTHE CHILDREN OF SLAVES ARE BORN FREE.\n\n\nThe idea that the children of slaves are necessarily born slaves, or\nthat they necessarily follow that _natural law_ of property, which gives\nthe natural increase of property to the owner of the original stock, is\nan erroneous one.\n\nIt is a principle of natural law in regard to property, that a calf\nbelongs to the owner of the cow that bore it; fruit to the owner of the\ntree or vine on which it grew; and so on. But the principle of _natural\nlaw_, which makes a calf belong to the owner of the cow, does not make\nthe child of a slave belong to the owner of the slave--and why? Simply\nbecause both cow and calf are _naturally_ subjects of property; while\nneither men nor children are _naturally_ subjects of property. The law\nof nature gives no aid to any thing inconsistent with itself. It\ntherefore gives no aid to the transmission of property in man--while it\ndoes give aid to the transmission of property in other animals and in\nthings.\n\nBrute animals and things being _naturally_ subjects of property, there\nare obvious reasons why the natural increase should belong to the owner\nof the original stock. But men, not being _naturally_ subjects of\nproperty, the law of nature will not transmit any right of property\nacquired in violation of her own authority. The law of nature denies all\nrights not derived from herself. Of course she cannot perpetuate or\ntransmit such rights--if rights they can be called.\n\nOne important reason why a calf belongs to the owner of the cow that\nbore it, is, _that there is no principle of natural law that can be\nopposed to that ownership_. For the calf is naturally a subject of\nproperty, and if it were not given to the owner of the cow, it would be\nlawful for any other person to assume the ownership. No wrong would be\ndone to the animal by so doing. But as man is not naturally a subject of\nproperty, and as each separate individual is, on principles of natural\nlaw, entitled to the control of his own person, it is as much a wrong,\nand as much a violation of natural law, to make a slave of the child of\na slave, as to make a slave of any other person. The natural rights of\nthe child to the control of his own person, rise up, from the moment of\nhis birth, in opposition to the transmission to him of any ownership,\nwhich, in violation of natural law, has been asserted to the parent.\n\nNatural law may be overborne by arbitrary institutions; but she will\nnever aid, or perpetuate them. For her to do so, would be to resist, and\neven deny her own authority. It would present the case of a principle\nwarring against and overcoming itself. Instead of this, she asserts her\nown authority on the first opportunity. The moment the arbitrary law\nexpires by its own limitation, natural law resumes her reign. If,\ntherefore, the government declare A to be a slave, natural law may be\npractically overborne by this arbitrary authority; but she will not\nherself perpetuate it beyond the person of A--for that would be acting\nin contradiction to herself.--She will therefore suffer this arbitrary\nauthority to expend itself on the person of A, according to the _letter_\nof the arbitrary law; but she will assert her own authority in favor of\nthe child of A, to whom the letter of the law enslaving A, does not\napply.\n\nSlavery is a wrong to each individual enslaved; and not merely to the\nfirst of a series. Natural law, therefore, as much forbids the enslaving\nof the child, as if the wrong of enslaving the parent had never been\nperpetrated.\n\nSlavery, then, is an arbitrary institution throughout. It depends, from\nfirst to last, upon the letter of the arbitrary law. Natural law gives\nit no aid, no extension, no new application, under any circumstances\nwhatever. Unless, therefore, the letter of the arbitrary law explicitly\nauthorize the enslavement of the child, the child is born free, though\nthe parent were a slave.\n\nIf the views that have already been taken of our written constitutions,\nbe correct, no parent has ever yet been legally enslaved in this\ncountry; and of course no child. If, however, any one thinks he can\nplace his finger upon any _constitutional_ law, that has enslaved a\nparent, let him follow that law, and see whether it also expressly\nauthorized the enslavement of the child. If it did not, then the child\nwould be free.\n\nIt is no new principle that the child of a slave would be born free, but\nfor an express law to the contrary. Some of the slave codes admit the\nprinciple--for they have special provisions that the child shall follow\nthe condition of the mother; thus virtually admitting that, but for such\na provision, the child would be free, though the mother were a slave.\n\nUnder the constitutions of the states and the United States, it requires\nas explicit and plenary _constitutional_ authority, to make slaves of\nthe children of slaves, as it would to make slaves of any body else. Is\nthere, in any of the constitutions of this country, any general\nauthority given to the governments, to make slaves of whom they please?\nNo one will pretend it. Is there, then, any particular authority for\nmaking slaves of the children of those, who have previously been held in\nslavery? If there be, let the advocates of slavery point it out. If\nthere be no such authority, all their statutes declaring that the\nchildren of slaves shall follow the condition of their mothers, are\nvoid; and those children are free by force of the law of nature.\n\nThis law of nature, that all men are born free, was recognized by this\ncountry in the Declaration of Independence.--But it was no new principle\nthen. Justinian says, \"Captivity and servitude are both contrary to the\nlaw of nature; for by that law all men are born free.\" But the principle\nwas not new with Justinian; it exists in the nature of man, and is as\nold as man--and the race of man generally has acknowledged it. The\nexceptions have been special; the rule general.\n\nThe constitution of the United States recognizes the principle that all\nmen are born free; for it recognizes the principle that natural birth in\nthe country gives citizenship[31]--which of course implies freedom. And\nno exception is made to the rule. Of course all born in the country\nsince the adoption of the constitution of the United States, have been\nborn free, whether there were, or were not any legal slaves in the\ncountry before that time.\n\nEven the provisions, in the several state constitutions, that the\nlegislatures shall not _emancipate_ slaves, would, if allowed their full\neffect, unrestrained by the constitution of the United States, hold in\nslavery only those who were then slaves; it would do nothing towards\nenslaving their children, and would give the legislatures no authority\nto enslave them.\n\nIt is clear, therefore, that, on this principle alone, slavery would now\nbe extinct in this country, unless there should be an exception of a few\naged persons.\n\n[Footnote 31: Art. 2, Sec. 1, Clause 5, \"No person, except a _natural\nborn_ citizen,* * * * shall be eligible to the office of President.\"]","title":"The Unconstitutionality of Slavery","tradition":"philosophy-ethics","translated_text":null,"word_count":55095}