Chapter VIII: The Constitution of the United States (1)

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

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

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

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

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

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

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

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

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

SECONDLY.

Although we might stop--we yet do not choose to stop--at the point last suggested. We will now go further, and attempt to show, specifically from its provisions, that the constitution of the United States, not only does not recognize or sanction slavery, as a legal institution, but that, on the contrary, it presumes all men to be free; that it positively denies the right of property in man; and that it, _of itself_, makes it impossible for slavery to have a legal existence in any of the United States.

In the first place--although the assertion is constantly made, and rarely denied, yet it is palpably a mere begging of the whole question in favor of slavery, to say that the constitution _intended_ to sanction it; for if it _intended_ to sanction it, it _did_ thereby necessarily sanction it, (that is, if slavery then had any constitutional existence to be sanctioned.) The _intentions_ of the constitution are the only means whereby it sanctions any thing. And its intentions necessarily sanction everything to which they apply, and which, in the nature of things, they are competent to sanction. To say, therefore, that the constitution _intended_ to sanction slavery, is the same as to say that it _did_ sanction it; which is begging the whole question, and substituting mere assertion for proof.

Why, then, do not men say distinctly, that the constitution _did_ sanction slavery, instead of saying that it _intended_ to sanction it? We are not accustomed to use the word "_intention_," when speaking of the other grants and sanctions of the constitution. We do not say, for example, that the constitution _intended_ to authorize congress "to coin money," but that it _did_ authorize them to coin it. Nor do we say that it intended to authorize them "to declare war;" but that it did authorize them to declare it. It would be silly and childish to say merely that it _intended_ to authorize them "to coin money," and "to declare war," when the language authorizing them to do so, is full, explicit and positive. Why, then, in the case of slavery, do men say merely that the constitution _intended_ to sanction it, instead of saying distinctly, as we do in the other cases, that it _did_ sanction it? The reason is obvious. If they were to say unequivocally that it _did_ sanction it, they would lay themselves under the necessity of pointing to the _words_ that sanction it; and they are aware that the _words alone_ of the constitution do not come up to that point. They, therefore, assert simply that the constitution _intended_ to sanction it; and they then attempt to support the assertion by quoting certain words and phrases, which they say are _capable_ of covering, or rather of concealing such an intention; and then by the aid of exterior, circumstantial and historical evidence, they attempt to enforce upon the mind the conclusion that, as matter of fact, such was the intention of those who _drafted_ the constitution; and thence they finally infer that such was the intention of the constitution itself.

The error and fraud of this whole procedure--and it is one purely of error and fraud--consists in this--that it artfully substitutes the supposed intentions of those who drafted the constitution, for the intentions of the constitution itself; and, secondly, it personifies the constitution as a crafty individual; capable of both open and secret intentions; capable of legally participating in, and giving effect to all the subtleties and double dealing of knavish men; and as actually intending to secure slavery, while openly professing to "secure and establish liberty and justice." It personifies the constitution as an individual capable of having private and criminal intentions, which it dare not distinctly avow, but only darkly hint at, by the use of words of an indefinite, uncertain and double meaning, whose application is to be gathered from external circumstances.

The falsehood of all these imaginings is apparent, the moment it is considered that the constitution is not a _person_, of whom an "intention," not legally expressed, can be asserted; that it has none of the various and selfish passions and motives of action, which sometimes prompt _men_ to the practice of duplicity and disguise; that it is merely a written legal instrument; that, as such, it must have a fixed, and not a double meaning; that it is made up entirely of intelligible words; and that it has, and _can_ have, no soul, no "_intentions_," no motives, no being, no personality, except what those words alone express or imply. Its "intentions" are nothing more nor less than the legal meaning of its words. Its intentions are no guide to its legal meaning--as the advocates of slavery all assume; but its legal meaning is the sole guide to its intentions. This distinction is all important to be observed; for if we can gratuitously assume the intentions of a legal instrument to be what we may wish them to be, and can then strain or pervert the ordinary meaning of its words, in order to make them utter those intentions, we can make any thing we choose of any legal instrument whatever. The legal meaning of the words of an instrument is, therefore, necessarily our only guide to its intentions.

In ascertaining the legal meaning of the words of the constitution, these rules of law, (the reasons of which will be more fully explained hereafter,) are vital to be borne constantly in mind, viz: 1st, that no intention in violation of natural justice and natural right, (like that to sanction slavery,) can be ascribed to the constitution, unless that intention be expressed in terms that are _legally competent_ to express such an intention; and, 2d, that no terms, except those that are plenary, express, explicit, distinct, unequivocal, _and to which no other meaning can be given, are legally competent_ to authorize or sanction any thing contrary to natural right. The rule of law is materially different as to the terms necessary to legalize and sanction any thing contrary to natural right, and those necessary to legalize things that are consistent with natural right. The latter may be sanctioned by implication and inference; the former only by inevitable implication, or by language that is full, definite, express, explicit, unequivocal, and whose _unavoidable_ import is to sanction the _specific wrong_ intended.

To assert, therefore, that the constitution _intended_ to sanction slavery, is, in reality, equivalent to asserting that the _necessary_ meaning, the _unavoidable_ import of the _words alone_ of the constitution, come fully up to the point of a clear, definite, distinct, express, explicit, unequivocal, necessary and peremptory sanction of the specific thing, _human slavery, property in man_. If the _necessary_ import of its _words alone_ do but fall an iota short of this point, the instrument gives, and, legally speaking, intended to give no legal sanction to slavery. Now, who can, in good faith, say that the _words alone_ of the constitution come up to this point? No one, who knows any thing of law, and the meaning of words. Not even the name of the thing, alleged to be sanctioned, is given. The constitution itself contains no designation, description, or necessary admission of the existence of such a thing as slavery, servitude, or the right of property in man. We are obliged to go out of the instrument, and grope among the records of oppression, lawlessness and crime--records unmentioned, and of course unsanctioned by the constitution--to _find_ the thing, to which it is said that the words of the constitution apply. And when we have found this thing, which the constitution dare not name, we find that the constitution has sanctioned it, (if at all,) only by enigmatical words, by unnecessary implication and inference, by inuendo and double entendre, and under a name that entirely fails of describing the thing. Every body must admit that the constitution itself contains no language, from which _alone_ any court, that were either strangers to the prior existence of slavery, or that did not assume its prior existence to be legal, could legally decide that the constitution sanctioned it. And this is the true test for determining whether the constitution does, or does not, sanction slavery, viz: whether a court of law, strangers to the prior existence of slavery, or not assuming its prior existence to be legal--looking only at the naked language of the instrument--could, consistently with legal rules, judicially determine that it sanctioned slavery. Every lawyer, who at all deserves that name, knows that the claim for slavery could stand no such test. The fact is palpable, that the constitution contains no such legal sanction; that it is only by unnecessary implication and inference, by inuendo and double-entendre, by the aid of exterior evidence, the assumption of the prior legality of slavery, and the gratuitous imputation of criminal intentions that are not avowed in legal terms, that any sanction of slavery, (as a legal institution,) can be extorted from it.

But legal rules of interpretation entirely forbid and disallow all such implications, inferences, inuendos and double-entendre, all aid of exterior evidence, all assumptions of the prior legality of slavery, and all gratuitous imputations of criminal unexpressed intentions; and consequently compel us to come back to the _letter_ of the instrument, and find _there_ a distinct, clear, necessary, peremptory sanction for slavery, or to surrender the point.

To the unprofessional reader these rules of interpretation will appear stringent, and perhaps unreasonable and unsound. For his benefit, therefore, the reasons on which they are founded, will be given. And he is requested to fix both the reasons and the rules fully in his mind, inasmuch as the whole legal meaning of the constitution, in regard to slavery, may perhaps be found to turn upon the construction which these rules fix upon its language.

But before giving the reasons of this rule, let us offer a few remarks in regard to _legal_ rules of interpretation in general. Many persons appear to have the idea that these rules have no foundation in reason, justice or necessity; that they are little else than whimsical and absurd conceits, arbitrarily adopted by the courts. No idea can be more erroneous than this. The rules are absolutely indispensable to the administration of the justice arising out of any class of legal instruments whatever--whether the instruments be simple contracts between man and man, or statutes enacted by legislatures, or fundamental compacts or constitutions of government agreed upon by the people at large. In regard to all these instruments, the _law_ fixes, and necessarily must fix their meaning; and for the obvious reason, that otherwise their meaning could not be fixed at all. The parties to the simplest contract may disagree, or pretend to disagree, as to its meaning, and of course as to their respective rights under it. The different members of a legislative body, who vote for a particular statute, may have different intentions in voting for it, and may therefore differ, or pretend to differ, as to its meaning. The people of a nation may establish a compact of government. The motives of one portion may be to establish liberty, equality and justice; and they may think, or pretend to think that the words used in the instrument convey that idea. The motives of another portion may be to establish the slavery or subordination of one part of the people, and the superiority or arbitrary power of the other part; and they may think, or pretend to think, that the language agreed upon by the whole authorizes such a government. In all these cases, unless there were some rules of law, applicable alike to all instruments, and competent to settle their meaning, their meaning could not be settled; and individuals would of necessity lose their rights under them. _The law, therefore, fixes their meaning_; and the rules by which it does so, are founded in the same justice, reason, necessity and truth, as are other legal principles, and are for that reason as inflexible as any other legal principles whatever. They are also simple, intelligible, natural, obvious. Every body are presumed to know them, as they are presumed to know any other legal principles. No one is allowed to plead ignorance of them, any more than of any other principle of law. All persons and people are presumed to have framed their contracts, statutes and constitutions with reference to them. And if they have not done so--if they have said black when they meant white, and one thing when they meant another, they must abide the consequences. The law will presume that they meant what they said. No one, in a court of justice, can claim any rights founded on a construction different from that which these rules would give to the contract, statute, or constitution, under which he claims. The judiciary cannot depart from these rules, for two reasons. First, because the rules embody in themselves principles of justice, reason and truth; and are therefore as necessarily law as any other principles of justice, reason and truth; and, secondly, because if they could lawfully depart from them in one case, they might in another, at their own caprice. Courts could thus at pleasure become despotic; all certainty as to the legal meaning of instruments would be destroyed; and the administration of justice, according to the true meaning of contracts, statutes and constitutions, would be rendered impossible.

What, then, are some of these rules of interpretation?

One of them, (as has been before stated,) is, that where words are susceptible of two meanings, one consistent, and the other inconsistent, with justice and natural right, that meaning, and _only that_ meaning, which is consistent with right, shall be attributed to them--unless other parts of the instrument overrule that interpretation.

Another rule, (if indeed it be not the same,) is, that no language, except that which is peremptory, and no implication, except one that is inevitable, shall be held to authorize or sanction any thing contrary to natural right.

Another rule is, that no _extraneous or historical evidence_ shall be admitted to fix upon a statute an unjust or immoral meaning, when the words themselves of the act are susceptible of an innocent one.

One of the reasons of these stringent and inflexible rules, doubtless is, that judges have always known that, in point of fact, natural justice was itself law, and that nothing inconsistent with it could be made law, even by the most explicit and peremptory language that legislatures could employ.--But judges have always, in this country and in England, been dependent upon the executive and the legislature for their appointments and salaries, and been amenable to the legislature by impeachment. And as the executive and legislature have always enacted more or less statutes, and had more or less purposes to accomplish, that were inconsistent with natural right, judges have seen that it would be impossible for them to retain their offices, and at the same time maintain the integrity of the law against the will of those in whose power they were. It is natural also that the executive should appoint, and that the legislature should approve the appointment of no one for the office of judge, whose integrity they should suppose would stand in the way of their purposes.--The consequence has been that all judges, (probably without exception,) though they have not dared deny, have yet in practice yielded the vital principle of law; and have succumbed to the arbitrary mandates of the other departments of the government, so far as to carry out their enactments, though inconsistent with natural right. But, as if sensible of the degradation and criminality of so doing, they have made a stand at the first point at which they could make it, without bringing themselves in a direct collision with those on whom they were dependent. And that point is, that they will administer, as law, no statute, that is contrary to natural right, unless its language be so explicit and peremptory, that there is no way of evading its authority, but by flatly denying the authority of those who enacted it. They (the court) will themselves add nothing to the language of the statute, to help out its supposed meaning. They will imply nothing, infer nothing, and assume nothing, except what is inevitable; they will not go out of the letter of the statute in search of any _historical_ evidence as to the meaning of the legislature, to enable them to effectuate any _unjust_ intentions not fully expressed by the statute itself. Wherever a statute is supposed to have in view the accomplishment of any unjust end, they will apply the most stringent principles of construction to prevent that object's being effected. They will not go a hair's breadth beyond the literal or inevitable import _of the words_ of the statute, even though they should be conscious, all the while, that the real intentions of the makers of it would be entirely defeated by their refusal. The rule, (as has been already stated,) is laid down by the supreme court of the United States in these words:

"Where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the legislative intention must be expressed with _irresistible clearness_, to induce a court of justice to suppose a design to effect such objects."--(_United States_ vs. _Fisher et al., 2 Cranch_, 390.)[18]

Such has become the settled doctrine of courts. And although it does not come up to the true standard of law, yet it is good in itself, so far as it goes, and ought to be unflinchingly adhered to, not merely for its own sake, but also as a scaffolding, from which to erect that higher standard of law, to wit, that no language or authority whatever can legalize any thing inconsistent with natural justice.[19]

Another reason for the rules before given, against all constructions, implications and inferences--except inevitable ones--in favor of injustice, is, that but for them we should have no guaranty that our honest contracts, or honest laws would be honestly administered by the judiciary. It would be nearly or quite impossible for men, in framing their contracts or laws, to use language so as to exclude every possible implication in favor of wrong, if courts were allowed to resort to such implications. _The law therefore excludes them_; that is, the ends of justice--the security of men's rights under their honest contracts, and under honest legislative enactments--make it imperative upon courts of justice to ascribe an innocent and honest meaning to all language that will possibly bear an innocent and honest meaning. If courts of justice could depart from this rule for the purpose of upholding what was contrary to natural right, and could employ their ingenuity in spying out some implied or inferred authority, for sanctioning what was in itself dishonest or unjust, when such was not the _necessary_ meaning of the language used, there could be no security whatever for the honest administration of honest laws, or the honest fulfilment of men's honest contracts. Nearly all language, on the meaning of which courts adjudicate, would be liable, at the caprice of the court, to be perverted from the furtherance of honest, to the support of dishonest purposes. Judges could construe statutes and contracts in favor of justice or injustice, as their own pleasure might dictate.

Another reason of the rules, is, that as governments have, and can have no legitimate objects or powers opposed to justice and natural right, it would be treason to all the legitimate purposes of government, for the judiciary to give any other than an honest and innocent meaning to any language, that would bear such a construction.

The same reasons that forbid the allowance of any unnecessary implication or inference in favor of a wrong, in the construction of a statute, forbids also the introduction of any _extraneous or historical_ evidence to prove that the intentions of the legislature were to sanction or authorize a wrong.

The same rules of construction, that apply to statutes, apply also to all those private contracts between man and man, _which courts actually enforce_. But as it is both the right and the duty of courts to invalidate altogether such private contracts as are inconsistent with justice, they will admit evidence exterior to their words, _if offered by a defendant for the purpose of invalidating them_. At the same time, a plaintiff, or party that wishes to set up a contract, or that claims its fulfilment, will not be allowed to offer any evidence exterior to its words, to prove that the contract is contrary to justice--because, if his evidence were admitted, it would not make his unjust claim a legal one; but only invalidate it altogether. But as courts do not claim the right of invalidating statutes and constitutions, they will not admit evidence, exterior to their language, to give them such a meaning, that they ought to be invalidated.

I think no one--no lawyer, certainly--will now deny that it is a legal rule of interpretation--that must be applied to all statutes, and also to all private contracts _that are to be enforced_--that an innocent meaning, _and nothing beyond an innocent meaning_, must be given to all language that will possibly bear such a meaning. All will probably admit that the rule, as laid down by the supreme court of the United States, is correct, to wit, that "where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the legislative intention must be expressed with _irresistible clearness_, to induce a court of justice to suppose a design to effect such objects."

But perhaps it will be said that these rules, which apply to all statutes, and to all private contracts that are to be enforced, do not apply to the constitution. And why do they not? No reason whatever can be given. A constitution is nothing but a contract, entered into by the mass of the people, instead of a few individuals. This contract of the people at large becomes a law unto the judiciary that administer it, just as private contracts, (so far as they are consistent with natural right,) are laws unto the tribunals that adjudicate upon them. All the essential principles that enter into the question of obligation, in the case of a private contract, or a legislative enactment, enter equally into the question of the obligation of a contract agreed to by the whole mass of the people. This is too self-evident to need illustration.

Besides, is it not as important to the safety and rights of all interested, that a constitution or compact of government, established by a whole people, should be so construed as to promote the ends of justice, as it is that a private contract or a legislative enactment should be thus construed? Is it not as necessary that some check should be imposed upon the judiciary to prevent them from perverting, at pleasure, the whole purpose and character of the government, as it is that they should be restrained from perverting the meaning of a private contract, or a legislative enactment? Obviously written compacts of government could not be upheld for a day, if it were understood by the mass of the people that the judiciary were at liberty to interpret them according to their own pleasure, instead of their being restrained by such rules as have now been laid down.

Let us now look at some of the provisions of the constitution, and see what crimes might be held to be authorized by them, if their meaning were not to be ascertained and restricted by such rules of interpretation as apply to all other legal instruments.

The second amendment to the constitution declares that "the right of the people to keep and bear arms shall not be infringed."

This right "to keep and bear arms," implies the right to use them--as much as a provision securing to the people the right to buy and keep food, would imply their right also to eat it. But this implied right to use arms, is only a right to use them in a manner consistent with natural rights--as, for example, in defence of life, liberty, chastity, &c. Here is an innocent and just meaning, of which the words are susceptible; and such is therefore the _extent_ of their legal meaning. If courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right, they could imply a constitutional authority in the people to use arms, not merely for the just and innocent purposes of defence, but also for the criminal purposes of aggression--for purposes of murder, robbery, or any other acts of wrong to which arms are capable of being applied. The mere _verbal_ implication would as much authorize the people to use arms for unjust, as for just, purposes. But the _legal_ implication gives only an authority for their innocent use. And why? Simply because justice is the end of all law--the legitimate end of all compacts of government. It is itself law; and there is no right or power among men to destroy its obligation.

Take another case. The constitution declares that "Congress shall have power to _regulate commerce_ with foreign nations, and among the several states, and with the Indian tribes."

This power has been held by the supreme court to be an exclusive one in the general government--and one that cannot be controlled by the states. Yet it gives congress no constitutional authority to legalize any commerce inconsistent with natural justice between man and man; although the _mere_ verbal import of the words, if stretched to their utmost tension in favor of the wrong, would authorize congress to legalize a commerce in poisons and deadly weapons, for the express purpose of having them used in a manner inconsistent with natural right--as for the purposes of murder.

At natural law, and on principles of natural right, a person, who should _sell_ to another a weapon or a poison, knowing that it would, or intending that it should be used for the purpose of murder, would be legally an accessary to the murder that should be committed with it. And if the grant to congress of a "power to regulate commerce," can be stretched beyond the _innocent_ meaning of the words--beyond the power of regulating and authorizing a commerce that is consistent with natural justice--and be made to cover every thing, intrinsically criminal, that can be perpetrated under the name of commerce--then congress have the authority of the constitution for granting to individuals the liberty of bringing weapons and poisons from "foreign nations" into this, and from one state into another, and selling them openly for the express purposes of murder, without any liability to legal restraint or punishment.

Can any stronger cases than these be required to prove the necessity, the soundness, and the inflexibility of that rule of law, which requires the judiciary to ascribe an innocent meaning to all language that will possibly bear an innocent meaning? and to ascribe _only_ an innocent meaning to language whose mere verbal import might be susceptible of both an innocent _and_ criminal meaning? If this rule of interpretation could be departed from, there is hardly a power granted to congress, that might not _lawfully_ be perverted into an authority for legalizing crimes of the highest grade.

In the light of these principles, then, let us examine those clauses of the constitution, that are relied on as recognizing and sanctioning slavery. They are but three in number.

The one most frequently quoted is the third clause of Art. 4, Sec. 2, in these words:

"No person, held to service or labor in one state, under the laws
thereof, escaping into another, shall in consequence of any law or
regulation therein, be discharged from such service or labor; but
shall be delivered up on claim of the party to whom such service or
labor may be due."

There are several reasons why this clause renders no sanction to slavery.

1. It must be construed, if possible, as sanctioning nothing contrary to natural right.

If there be any "service or labor" whatever, to which any "persons" whatever may be "held," _consistently with natural right_, and which any person may, consistently with natural right, "_claim_" as his "_due_" of another, such "service or labor," and _only_ such, is recognized and sanctioned by this provision.

It needs no argument to determine whether the "service or labor," that is exacted of a slave, is such as can be "_claimed_," _consistently with natural right_, as being "_due_" from him to his master. And if it cannot be, some other "service or labor" must, if possible, be found for this clause to apply to.

The proper definition of the word "service," in this case, obviously is, the labor of a _servant_. And we find, that at and before the adoption of the constitution, the persons recognized by the state laws as "servants," constituted a numerous class. The statute books of the states abounded with statutes in regard to "servants." Many seem to have been indented as servants by the public authorities, on account of their being supposed incompetent, by reason of youth and poverty, to provide for themselves. Many were doubtless indented as apprentices by their parents and guardians, as now. The English laws recognized a class of servants--and many persons were brought here from England, in that character, and retained that character afterward. Many indented or contracted themselves as servants for the payment of their passage money to this country. In these various ways, the class of persons, recognized by the statute books of the states as "servants," was very numerous; and formed a prominent subject of legislation. Indeed, no other evidence of their number is necessary than the single fact, that "persons bound to service for a term of years," were specially noticed by the constitution of the United States, (Art. 1, Sec. 2,) which requires that they be counted as units in making up the basis of representation. There is therefore not the slightest apology for pretending that there was not a sufficient class for the words "service or labor" to refer to, without supposing the existence of slaves.[20]

2. "_Held to service or labor_," is no legal description of slavery. Slavery is property in man. It is not necessarily attended with either "service or labor." A very considerable portion of the slaves are either too young, too old, too sick, or too refractory to render "service or labor." As a matter of fact, slaves, who are able to labor, may, in general, be compelled by their masters to do so. Yet labor is not an essential or necessary condition of slavery. The essence of slavery consists in a person's being owned as property--without any reference to the circumstances of his being compelled to labor, or of his being permitted to live in idleness, or of his being too young, or too old, or too sick to labor.

If "service or labor" were either a test, or a necessary attendant of slavery, that test would of itself abolish slavery; because all slaves, before they can render "service or labor," must have passed through the period of infancy, when they could render neither service nor labor, and when, therefore, according to this test, they were free. And if they were free in infancy, they could not be subsequently enslaved.

3. "Held to service or labor in one state, _under the laws thereof_."

The "_laws_" take no note of the fact whether a slave "labors," or not. They recognize no obligation, on his part, to labor. They will enforce no "_claim_" of a master, upon his slave, for "service or labor." If the slave refuse to labor, the law will not interfere to compel him. The law simply recognizes the master's _right of property_ in the slave--just as it recognizes his right of property in a horse. Having done that, it leaves the master to compel the slave, if he please, and if he can--as he would compel a horse--to labor. If the master do not please, or be not able, to compel the slave to labor, the law takes no more cognizance of the case than it does of the conduct of a refractory horse. In short, it recognizes no obligation, on the part of the slave, to labor, if he can avoid doing so. It recognizes no "_claim_," on the part of the master, upon his slave, for "services or labor," as "_due_" from the latter to the former.

4. Neither "service" nor "labor" is necessarily slavery; and not being necessarily slavery, the words cannot, in this case, be strained beyond their necessary meaning, to make them sanction a wrong. The law will not allow words to be strained a hair's breadth beyond their _necessary_ meaning, to make them authorize a wrong. _The stretching, if there be any, must always be towards the right._ The words "service or labor" do not necessarily, nor in their common acceptation, so much as suggest the idea of slavery--that is, they do not suggest the idea of the laborer or servant being the property of the person for whom he labors. An indented apprentice serves and labors for another. He is "_held_" to do so, under a contract, and for a consideration, that are recognized, by the laws, as legitimate, and consistent with natural right. Yet he is not owned as property. A condemned criminal is "held to labor"--yet he is not owned as property. The law allows no such straining of the meaning of words towards the wrong, as that which would convert the words "service or labor" (of men) into _property in man_--and thus make a man, who serves or labors for another, the property of that other.

5. "No person held to service or labor, in one state, under the _laws_ thereof."

The "_laws_," here mentioned, and impliedly sanctioned, are, of course, only _constitutional_ laws--laws, that are consistent, both with the constitution of the state, and the constitution of the United States. None others are "_laws_," correctly speaking, however they may attempt to "hold persons to service or labor," or however they may have the forms of laws on the statute books.

This word "laws," therefore, being a material word, leaves the whole question just where it found it--for it certainly does not, _of itself_--nor indeed does any other part of the clause--say that acts of a legislature, declaring one man to be the property of another, is a "_law_" within the meaning of the constitution. As far as the word "_laws_" says any thing on the subject, it says that such acts are _not_ laws--for such acts are clearly inconsistent with natural law--and it yet remains to be shown that they are consistent with any constitution whatever, state or national.

The burden of proof, then, still rests upon the advocates of slavery, to show that an act of a state legislature, declaring one man to be the property of another, is a "law," within the meaning of this clause. To assert simply that it is, without proving it to be so, is a mere begging of the question--for that is the very point in dispute.

The question, therefore, of the _constitutionality_ of the slave acts must first be determined, before it can be decided that they are "laws" within the meaning of the constitution. That is, they must be shown to be consistent with the constitution, before they can be said to be sanctioned as "laws" by the constitution. Can any proposition be plainer than this? And yet the reverse must be assumed, in this case, by the advocates of slavery.

The simple fact, that an act purports to "hold persons to service or labor," clearly cannot, _of itself_, make the act constitutional. If it could, any act, purporting to hold "persons to service or labor," would necessarily be constitutional, without any regard to the "persons" so held, or the conditions on which they were held. It would be constitutional, _solely because it purported to hold persons to service or labor_. If this were the true doctrine, any of us, without respect of persons, might be held to service or labor, at the pleasure of the legislature. And then, if "service or labor" mean slavery, it would follow that any of us, without discrimination, might be made slaves. And thus the result would be, that the acts of a legislature would be constitutional, _solely because they made slaves of the people_. Certainly this would be a new test of the constitutionality of laws.

All the arguments in favor of slavery, that have heretofore been drawn from this clause of the constitution, have been founded on the assumption, that if an act of a legislature did but purport to "hold persons to service or labor"--no matter how, on what conditions, or for what cause--that fact alone was sufficient to make the act constitutional. The entire sum of the argument, in favor of slavery, is but this, viz. the constitution recognizes the constitutionality of "laws" that "hold persons to service or labor,"--slave acts "hold persons to service or labor,"--therefore slave acts must be constitutional. This profound syllogism is the great pillar of slavery in this country. It has, (if we are to judge by results,) withstood the scrutiny of all the legal acumen of this nation for fifty years and more. If it should continue to withstand it for as many years as it has already done, it will then be time to propound the following, to wit: The state constitutions recognize the right of men to acquire property; theft, robbery, and murder are among the modes in which property may be acquired; therefore theft, robbery, and murder are recognized by these constitutions as lawful.

No doubt the clause contemplates that there may be constitutional "laws," under which persons may be "held to service or labor." But it does not follow, therefore, that every act, that purports to hold "persons to service or labor," is constitutional.

We are obliged, then, to determine whether a statute be constitutional, before we can determine whether the "service or labor" required by it, is sanctioned by the constitution as being lawfully required. The simple fact, that the statute would "hold persons to service or labor," is, _of itself_, no evidence, either for or against its constitutionality. Whether it be or be not constitutional, may depend upon a variety of contingencies--such as the kind of service or labor required, and the conditions on which it requires it. Any service or labor, that is inconsistent with the duties which the constitution requires of the people, is of course not sanctioned by this clause of the constitution as being lawfully required. Neither, of course, is the requirement of service or labor, _on any conditions, that are inconsistent with any rights that are secured to the people by the constitution_, sanctioned by the constitution as lawful. Slave laws, then, can obviously be held to be sanctioned by this clause of the constitution, only by gratuitously assuming, 1st, that the constitution neither confers any rights, nor imposes any duties, upon the people of the United States, inconsistent with their being made slaves; and, 2d, that it sanctions the general principle of holding "persons to service or labor" arbitrarily, without contract, without compensation, and without the charge of crime. If this be really the kind of constitution that has been in force since 1789, it is somewhat wonderful that there are so few slaves in the country. On the other hand, if the constitution be not of this kind, it is equally wonderful that we have any slaves at all--for the instrument offers no ground for saying that a colored man may be made a slave, and a white man not.

Again. Slave acts were not "laws" according to any state constitution that was in existence at the time the constitution of the United States was adopted. And if they were not "laws" at that time, they have not been made so since.

6. The constitution itself, (Art. 1. Sec. 2,) in fixing the basis of representation, has plainly _denied_ that those described in Art. 4, as "persons held to service or labor," are slaves,--for it declares that "persons bound to service for a term of years" shall be "included" in the "number of _free_ persons." There is no _legal_ difference between being "bound to service," and being "held to service or labor." The addition, in the one instance, of the words, "for a term of years," does not alter the case, for it does not appear that, in the other, they are "held to service or labor" beyond a fixed term--and, in the absence of evidence from the constitution itself, the presumption must be that they are not--because such a presumption makes it unnecessary to go out of the constitution to find the persons intended, and it is also more consistent with the prevalent municipal, and with natural law.

And it makes no difference to this result, whether the word "free," in the first article, be used in the political sense common at that day, or as the correlative of slavery. In either case, the persons described as "free," could not be made slaves.

7. The words "service or labor" cannot be made to include slavery, unless by reversing the legal principle, that the greater includes the less, and holding that the less includes the greater; that the innocent includes the criminal; that a sanction of what is right, includes a sanction of what is wrong.

Another clause relied on as a recognition of the constitutionality of slavery, is the following, (Art. 1. Sec. 2.):

"Representatives and direct taxes shall be apportioned among the
several states, which may be included within this union, according to
their respective numbers, which shall be determined by adding to the
whole number of _free_ persons, including those bound to service for
a term of years, and excluding Indians not taxed, three-fifths of all
other persons."

The argument claimed from this clause, in support of slavery, rests entirely upon the word "free," and the words "all other persons." Or rather it rests entirely upon the meaning of the word "free," for the application of the words "all other persons" depends upon the meaning given to the word "free." The slave argument _assumes_, _gratuitously_, that the word "free" is used as the correlative of slavery and thence it infers that the words, "all other persons," mean slaves.

It is obvious that the word "free" affords no argument for slavery, unless a meaning correlative with slavery be _arbitrarily_ given to it, for the very purpose of _making_ the constitution sanction or recognize slavery. Now it is very clear that no such meaning can be given to the word, _for such a purpose_. The ordinary meaning of a word cannot be thus arbitrarily changed, _for the sake of sanctioning a wrong_. A choice of meaning would be perfectly allowable, and even obligatory, if made for the purpose of _avoiding_ any such sanction; but it is entirely inadmissable for the purpose of giving it. The legal rules of interpretation, heretofore laid down, imperatively require this preference of the right, over the wrong, in all cases where a word is susceptible of different meanings.

The English law had for centuries used the word "free" as describing persons possessing citizenship, or some other franchise or peculiar privilege--as distinguished from aliens, and persons not possessed of such franchise or privilege. This law, and this use of the word "free," as has already been shown, had been adopted in this country from its first settlement. The colonial charters all, (probably without an exception,) recognized it. The colonial legislation generally, if not universally, recognized it. The state constitutions, in existence at the time the constitution of the United States was formed and adopted, used the word in this sense, and no other. The Articles of Confederation--the then existing national compact of union--used the word in this sense, and no other. The sense is an appropriate one in itself; the most appropriate to, and consistent with the whole character of the constitution, of any of which the word is susceptible. In fact, it is the only one that is either appropriate to, or consistent with, the other parts of the instrument. Why, then, is it not the legal meaning? Manifestly it _is_ the legal meaning. No reason whatever can be given against it, except that, if such be its meaning, _the constitution will not sanction slavery_! A very good reason--a perfectly unanswerable reason, in fact--in favor of this meaning; but a very futile one against it.

It is evident that the word "free" is not used as the correlative of slavery, because "Indians not taxed" are "excluded" from its application--yet they are not therefore slaves.

Again. The word "free" cannot be presumed to be used as the correlative of slavery--because slavery then had no _legal_ existence. The word must obviously be presumed to be used as the correlative of something that did _legally_ exist, rather than of something that did not legally exist. If it were used as the correlative of something that did not legally exist, the words "all other persons" would have no legal application. Until, then, it be shown that slavery had a legal existence, authorized either by the United States constitution, or by the then existing state constitutions--a thing that cannot be shown--the word "free" certainly cannot be claimed to have been used as its correlative.

But even if slavery had been authorized by the _state_ constitutions, the word "free," in the United States constitution, could not have been claimed to have been used as its correlative, unless it had appeared that the United States constitution had itself provided or suggested no correlative of the word "free;" for it would obviously be absurd and inadmissible to go out of an instrument to find the intended correlative of one of its own words, when it had itself suggested one. This the constitution of the United States has done, in the persons of aliens. The power of naturalization is, by the constitution, taken from the states, and given exclusively to the United States. The constitution of the United States, therefore, necessarily supposes the existence of aliens--and thus furnishes the correlative sought for. It furnishes a class both for the word "free," and the words "all other persons" to apply to. And yet the slave argument contends that we must overlook these distinctions, necessarily growing out of the laws of the United States, and go out of the constitution of the United States to _find_ persons whom it describes as the "free," and "all other persons." And what makes the argument the more absurd is, that by going out of the instrument to the _then existing state constitutions_--the only instruments to which we can go--we can find there _no other_ persons for the words to apply to--no other classes answering to the description of the "free persons" and "all other persons,"--than the very classes suggested by the United States constitution itself, to wit, citizens and aliens; (for it has previously been shown that the then existing state constitutions recognized no such persons as slaves.)

If we are obliged, (as the slave argument claims we are,) to go out of the constitution of the United States to find the class whom it describes as "all other persons" than "the free," we shall, for aught I see, be equally obliged to go out of it to find those whom it describes as the "free"--for "the free," and "all other persons" than "the free," must be presumed to be found described somewhere in the same instrument. If, then, we are obliged to go out of the constitution to find the persons described in it as "the free" and "all other persons," we are obliged to go out of it to ascertain who are the persons on whom it declares that the representation of the government shall be based, and on whom, of course, the government is founded. And thus we should have the absurdity of a constitution that purports to authorize a government, yet leaves us to go in search of the people who are to be represented in it. Besides, if we are obliged to go out of the constitution, to find the persons on whom the government rests, and those persons are arbitrarily prescribed by some other instrument, independent of the constitution, this contradiction would follow, viz., that the United States government would be a subordinate government--a mere appendage to something else--a tail to some other kite--or rather a tail to a large number of kites at once--instead of being, as it declares itself to be, the supreme government--its constitution and laws being the supreme law of the land.