BEFORE examining the language of the Constitution, in regard to Slavery, let us obtain a view of the principles, by virtue of which law arises out of those constitutions and compacts, by which people agree to establish government.
To do this it is necessary to define the term law. Popular opinions are very loose and indefinite, both as to the true definition of law, and also as to the principle, by virtue of which law results from the compacts or contracts of mankind with each other.
What then is LAW? That law, I mean, which, and which only, judicial tribunals are morally bound, under all circumstances, to declare and sustain?
In answering this question, I shall attempt to show that law is an intelligible principle of right, necessarily resulting from the nature of man; and not an arbitrary rule, that can be established by mere will, numbers or power.
To determine whether this proposition be correct, we must look at the general signification of the term law.
The true and general meaning of it, is that natural, permanent, unalterable principle, which governs any particular thing or class of things. The principle is strictly a natural one; and the term applies to every natural principle, whether mental, moral or physical. Thus we speak of the laws of mind; meaning thereby those natural, universal and necessary principles, according to which mind acts, or by which it is governed. We speak too of the moral law; which is merely an universal principle of moral obligation, that arises out of the nature of men, and their relations to each
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other, and to other things—and is consequently as unalterable as the nature of men. And it is solely because it is unalterable in its nature, and universal in its application, that it is denominated law. If it were changeable, partial or arbitrary, it would be no law. Thus we speak of physical laws; of the laws, for instance, that govern the solar system; of the laws of motion, the laws of gravitation, the laws of light, &c., &c.—Also the laws that govern the vegetable and animal kingdoms, in all their various departments: among which laws may be named, for example, the one that like produces like. Unless the operation of this principle were uniform, universal and necessary, it would be no law.
Law, then, applied to any object or thing whatever, signifies a natural, unalterable, universal principle, governing such object or thing. Any rule, not existing in the nature of things, or that is not permanent, universal and inflexible in its application, is no law, according to any correct definition of the term law.
What, then, is that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men? Those rights of person, property, &c., which one human being has, as against other human beings?
I shall define it to be simply the rule, principle, obligation or requirement of natural justice.
This rule, principle, obligation or requirement of natural justice, has its origin in the natural rights of individuals, results necessarily from them, keeps them ever in view as its end and purpose, secures their enjoyment, and forbids their violation. It also secures all those acquisitions of property, privilege and claim, which men have a natural right to make by labor and contract.
Such is the true meaning of the term law, as applied to the civil rights of men. And I doubt if any other definition of law can be given, that will prove correct in every, or necessarily in any possible case. The very idea of law originates in men's natural rights. There is no other standard, than natural rights, by which civil law can be measured. Law has always been the name of that rule or principle of justice, which protects those rights. Thus we speak of natural law. Natural law, in fact, constitutes the great body of the law that is professedly administered by judicial tribunals: and it always necessarily must be—for it is impossible to anticipate a thousandth part of the cases that arise, so as to enact a special law for them. Wherever the cases have
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not been thus anticipated, the natural law prevails. We thus politically and judicially recognize the principle of law as originating in the nature and rights of men. By recognizing it as originating in the nature of men, we recognize it as a principle, that is necessarily as immutable, and as indestructible as the nature of man. We also, in the same way, recognize the impartiality and universality of its application.
If, then, law be a natural principle—one necessarily resulting from the very nature of man, and capable of being destroyed or changed only by destroying or changing the nature of man—it necessarily follows that it must be of higher and more inflexible obligation than any other rule of conduct, which the arbitrary will of any man, or combination of men, may attempt to establish. Certainly no rule can be of such high, universal and inflexible obligation, as that, which, if observed, secures the rights, the safety and liberty of all.
Natural law, then, is the paramount law. And, being the paramount law, it is necessarily the only law: for, being applicable to every possible case that can arise touching the rights of men, any other principle or rule, that should arbitrarily be applied to those rights, would necessarily conflict with it. And, as a merely arbitrary, partial and temporary rule must, of necessity, be of less obligation than a natural, permanent, equal and universal one, the arbitrary one becomes, in reality? of no obligation at all, when the two come in collision. Consequently there is, and can be, correctly speaking, no law but natural law. There is no other principle or rule, applicable to the rights of men, that is obligatory in comparison with this, in any case whatever. And this natural law is no other than that rule of natural justice, which results either directly from men's natural rights, or from such acquisitions as they have a natural right to make, or from such contracts as they have a natural right to enter into.
Natural law recognizes the validity of all contracts which men have a natural, right to make, and which justice requires to be fulfilled: such, for example, as contracts that render equivalent for equivalent, and are at the same time consistent with morality, the natural rights of men, and those rights of property, privilege, &c., which men have a natural right to acquire by labor and contract.
Natural law, therefore, inasmuch as it recognizes the natural right of men to enter into obligatory contracts, permits the formation of government, founded on contract, as all our governments
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profess to be. But in order that the contract of government may be valid and lawful, it must purport to authorize nothing inconsistent with natural justice, and men's natural rights. It cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government—which is but an association of individuals—than to a single individual. They are a necessary attribute of man's nature; and he can no more part with them—to government or anybody else—than with his nature itself.
But the contract of government may lawfully authorize the adoption of means—not inconsistent with natural justice—for the better protection of men's natural rights. And this is the legitimate and true object of government. And rules and statutes, not inconsistent with natural justice and men's natural rights, if enacted by such government, are binding, on the ground of contract, upon those who are parties to the contract, which creates the government, and authorizes it to pass rules and statutes to carry out its objects.*
But natural law tries the contract of government, and declares it lawful or unlawful, obligatory or invalid, by the same rules by which it tries all other contracts between man and man. A contract for the establishment of government, being nothing but a voluntary contract between individuals for their mutual benefit, differs, in nothing that is essential to its validity from any other contract between man and man, or between nation and nation. If two individuals enter into a contract to commit trespass, theft, robbery or murder upon a third, the contract is unlawful and void, simply because it is a contract to violate natural justice, or men's natural rights. If two nations enter into a treaty, that they will unite in plundering, enslaving or destroying a third, the treaty is unlawful, void and of no obligation, simply because it is contrary
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* It is obvious that legislation can have, in this country, no higher or other authority, than that which results from natural law, and the obligation of contracts; for our constitutions are but contracts, and the legislation they authorize can of course have no other or higher authority than the constitutions themselves.
The stream cannot rise higher than the fountain.
The idea, therefore, of any inherent authority or sovereignty in our governments, as governments, or of any inherent right in the majority to restrain individuals, by arbitrary enactments, from the exercise of any of their natural rights, is as sheer an imposture as the idea of the divine right of kings to reign, or any other of the doctrines on which arbitrary governments have been founded.
And the idea of any necessary or inherent authority in legislation, as such, is, of course, equally an imposture.
If legislation be consistent with natural justice, and the natural or intrinsic obligation of the contract of government, it is obligatory: if not, not. |
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to justice and men's natural rights. On the same principle, if the majority, however large, of the people of a country, enter into a contract of government, called a constitution, by which they agree to aid, abet or accomplish any kind of injustice, or to destroy or invade the natural rights of any person or persons whatsoever; whether such persons be parties to the compact or not, this contract of government is unlawful and void—and for the same reason that a treaty between two nations for a similar purpose, or a contract of the same nature between two individuals, is unlawful and void. Such a contract of government has no moral sanction. It confers no rightful authority upon those appointed to administer it. It confers no legal or moral rights, and imposes no legal or moral obligation upon the people who are parties to it. The only duties, which any one can owe to it, or to the government establislied under color of its authority, are disobedience, resistance, destruction.
Judicial tribunals, sitting under the authority of this unlawful contract or constitution, are bound, equally with other men, to declare it, and all unjust enactments passed by the government in pursuance of it, unlawful and void. These judicial tribunals cannot, by accepting office under a government, rid themselves of that paramount obligation, that all men are under, to declare, if they declare anything, that justice is law; that government can have no lawful powers, except those with which it has been invested by lawful contract; and that an unlawful contract for the establishment of government, is as unlawful and void as any other contract to do injustice.
No oaths, which judicial or other officers may take, to carry out and support an unlawful contract or constitution of government, are of any moral obligation. It is immoral to take such oaths, and it is criminal to fulfil them. They are, both in morals and law, like the oaths which individual pirates, thieves and bandits give to their confederates, as an assurance of their fidelity to the purposes for which they are associated. No man has any moral right to assume such oaths; they impose no obligation upon those who do assume them; they afford no moral justification for official acts, in themselves unjust, done in pursuance of them.
If these doctrines are correct, then those contracts of government, state and national, which we call constitutions, are void, and unlawful, so far as they purport to authorise, (if any of them do authorize,) anything in violation of natural justice, or the natural
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rights of any man or class of men whatsoever. And all judicial tribunals are bound, by the highest obligations that can rest upon them, to declare that these contracts, in all such particulars, (if any such there be,) are void, and not law. And all agents, legislative, executive, judicial and popular, who voluntarily lend their aid to the execution of any of the unlawful purposes of the government, are as much personally guilty, according to all the moral and legal principles, by which crime, in its essential character, is measured, as though they performed the same acts independently, and of their own volition.
Such is the true character and definition of law. Yet, instead of being allowed to signify, as it in reality does, that natural, universal and inflexible principle, which has its origin in the nature of man, keeps pace everywhere with the rights of man, as their shield and protector, binds alike governments and men, weighs by the same standard the acts of communities and individuals, and is paramount in its obligation to any other requirement which can be imposed upon men—instead, I say, of the term law being allowed to signify, as it really does, this immutable and overruling principle of natural justice, it has come to be applied to mere arbitrary rules of conduct, prescribed by individuals, or combinations of individuals, self-styled governments, who have no other title to the prerogative of establishing such rules, than is given them by the possession or command of sufficient physical power to coerce submission to them.
The injustice of these rules, however palpable and atrocious it may be, has not deterred their authors from dignifying them with the name of law. And, what is much more to be deplored, such has been the superstition of the people, and such their blind veneration for physical power, that this injustice has not opened their eyes to the distinction between law and force, between the sacred requirements of natural justice, and the criminal exactions of unrestrained selfishness and power. They have thus not only suffered the name of law to be stolen, and applied to crime as a cloak to conceal its true nature, but they have rendered homage and obedience to crime, under the name of law, until the very name of law, instead of signifying, in their minds, an immutable principle of right, has come to signify little more than an arbitrary command of power, without reference to its justice or its injustice, its innocence or its criminality. And now, commands the most criminal, if christened with the name of law, obtain nearly as ready an
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obedient, oftentimes a more ready obedience, than law and justice itself. This superstition, on the part of the people, which has thus allowed force and crime to usurp the name and occupy the throne of justice and law, is hardly paralleled in its grossness, even by that superstition, which, in darker ages of the world, has allowed falsehood, absurdity and cruelty to usurp the name and the throne of religion.
But I am aware that other definitions of law, widely different from that I have given, have been attempted—definitions too, which practically obtain, to a great extent, in our judicial tribunals, and in all the departments of government. But these other definitions are nevertheless, all, in themselves, uncertain, indefinite, mutable; and therefore incapable of being standards, by a reference to which the question of law, or no law, can be determined. Law, as defined by them, is capricious, arbitrary, unstable, is based upon no fixed principle; results from no established fact; is susceptible of only a limited, partial and arbitrary application; possesses no intrinsic authority; does not, in itself, recognize any moral principle; does not necessarily confer upon, or even acknowledge in individuals, any moral or civil rights; or impose upon them any moral obligation.
For example. One of these definitions—one that probably embraces the essence of all the rest—is this:
That "law is a rule of civil conduct, prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear."—Noah Webster.
In this definition, hardly anything, that is essential to the idea of law, is made certain. Let us see. It says that,
"Law is a rule of civil conduct, prescribed by the supreme power of a state."
What is the "supreme power," that is here spoken of, as the fountain of law? Is it the supreme physical power? Or the largest concentration of physical power, whether it exist in one man or in a combination of men? Such is undoubtedly its meaning. And if such be its meaning, then the law is uncertain; for it is oftentimes uncertain where, or in what man, or body of men, in a state, the greatest amount of physical power is concentrated. Whenever a state should be divided into factions, no one having the supremacy of all the rest, law would not merely be inefficient, but the very principle of law itself would be actually extinguished. And men would have no "rule of civil conduct." This result alone is sufficient to condemn this definition.
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Again. If physical power be the fountain of law, then law and force are synonymous terms. Or, perhaps, rather, law would be the result of a combination of will and force; of will, united with a physical power sufficient to compel obedience to it, but not necessarily having any moral character whatever.
Are we prepared to admit the principle, that there is no real distinction between law and force? If not, we must reject this definition.
It is true that law may, in many cases, depend upon force as the means of its practical efficiency. But are law and force therefore identical in their essence?
According to this definition, too, a command to do injustice, is as much law, as a command to do justice. All that is necessary, according to this definition, to make the command a law, is that it issue from a will that is supported by physical force sufficient to coerce obedience.
Again. If mere will and power are sufficient, of themselves, to establish law—legitimate law—such law as judicial tribunals are morally bound, or even have a moral right to enforce—then it follows that wherever will and power are united, and continue united until they are successful in the accomplishment of any particular object, to which they are directed, they constitute the only legitimate law of that case, and judicial tribunals can take cognizance of no other.
And it makes no difference, on this principle, whether this combination of will and power be found in a single individual, or in a community of an hundred millions of individuals.—The numbers concerned do not alter the rule—otherwise law would be the result of numbers, instead of "supreme power." It is therefore sufficient to comply with this definition, that the power be equal to the accomplishment of the object. And the will and power of one man are therefore as competent to make the law relative to any acts which he is able to execute, as the will and power of millions of men are to make the law relative to any acts which they are able to accomplish.
On this principle, then—that mere will and power are competent to establish the law that is to govern an act, without reference to the justice or injustice of the act itself, the will and power of any single individual to commit theft, would be sufficient to make theft lawful, as lawful as is any other act of injustice, which the will and power of communities, or large bodies of men, may be
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united to accomplish And judicial tribunals are as much bound to recognize, as lawful, any act of injustice or crime, which the will and power of a single individual may have succeeded in .accomplishing, as they are to recognize as lawful any act of injustice, which large and organized bodies of men, self-styled governments, may accomplish.
But, perhaps it will be said that the soundness of this definition depends upon the use of the word "state "—and that it therefore makes a distinction between "the supreme power of a state," over a particular act, and the power of an individual over the same act.
But this addition of the word "state," in reality leaves the definition just where it would have been without it. For what is "a state?" It is just what, and only what, the will and power of individuals may arbitrarily establish.
There is nothing fixed in the nature, character or boundaries of "a state." Will and power may alter them at pleasure. The will and power of [Tsar] Nicholas, and that will and power which he has concentrated around, or rather within himself, establishes all Russia, both in Europe and Asia, as "a state." By the same rule, the will and power of the owner of an acre of ground, may establish that acre as a state, and make his will and power, for the time being, supreme and lawful within it.
The will and power, also, that established "a state" yesterday, may be overcome to-day by an adverse will and power, that shall abolish that state, and incorporate it into another, over which this latter will and power shall to-day be "supreme." And this latter will and power may also to-morrow be overcome by still another will and power mightier than they.
"A state," then, is nothing fixed, permanent or certain in its nature. It is simply the boundaries, within which any single combination or concentration of will and power are efficient, or irresistible, for the time being.
This is the only true definition that can be given of "a state." It is merely an arbitrary name given to the territorial limits of power. And if such be its true character, then it would follow, that the boundaries, though but two feet square, within which the will and power of a single individual are, for the time being, supreme, or irresistible, are, for all legal purposes, "a state"—and his will and power constitute, for the time being, the law within those limits; and his acts are, therefore, for the time being,
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as necessarily lawful, without respect to their intrinsic justice or injustice, as are the acts of larger bodies of men, within those limits where their will and power are supreme and irresistible.
If, then, law really be what this definition would make it, merely "a rule of civil conduct prescribed by the supreme power of a state"—it would follow, as a necessary consequence, that law is synonymous merely with will and force, wherever they are combined and in successful operation, for the present moment.
Under this definition, law offers no permanent guaranty for the safety, liberty, rights or happiness of any one. It licenses all possible crime, violence and wrong, both by governments and individuals. The definition was obviously invented by, and is suited merely to gloss over the purposes of, arbitrary power. We are therefore compelled to reject it, and to seek another, that shall make law less capricious, less uncertain, less arbitrary, more just, more safe to the rights of all, more permanent. And if we seek another, where shall we find it, unless we adopt the one first given, viz., that law is the rule, principle, obligation or requirement of natural justice?
Adopt this definition, and law becomes simple, intelligible, scientific; always consistent with itself; always harmonizing with morals, reason and truth. Reject this definition, and law is no longer a science: but a chaos of crude, conflicting and arbitrary edicts, unknown perchance to either morals, justice, reason or truth, and fleeting and capricious as the impulses of will, interest and power.
If, then, law really be nothing other than the rule, principle, obligation or requirement of natural justice [as per "original intent," "original grant" delegation], it follows that government can have no powers except such as individuals may rightfully delegate to it:
that no law, inconsistent with men's natural rights ['original grant'], can arise out of any contract or compact [constitution] of government:
that constitutional law, under any form of government, consists only of those principles of the written constitution, that are consistent with natural law, and man's natural rights ['original grant'];
and that any other principles, that may be expressed by the letter of any constitution, are void and not law, and all judicial tribunals are bound to declare them so.
Note abolitionists expressing this concept in terms including "original grant" terms:
Rev. Theo. D. Weld, Bible Against Slavery (1837), pp 28-30
Rev. James Rankin, Letters (1823), p 100
Charles Sumner, Addresses on War (1845), p 46
James Birney, Bulwarks (1840), p 29
Rev. Parker Pillsbury, Forlorn Hope (1847), p 8
Rev. John Fee, Non-Fellowship (1849), p 6
Rev. John G. Fee, Sinfulness of Slavery (1851), p 10
Rev. John Fee, Anti-Slavery Manual (1851), p 116
Edward C. Rogers, Slavery Illegality (1855), p 46
Lewis Tappan, et al., Proceedings of Convention (1855), p 5
Rev. Parker Pillsbury, Acts (1883), p 365.
People cannot rightfully delegate to others, authority that they themselves lack; an 'agent' cannot have more power than his 'principal'; a 'principal' cannot delegate to his 'agent' more power than the 'principal' has.
Others say likewise, e.g.,
"The people cannot delegate to government the power to do anything which would be unlawful for them to do themselves." -- John Locke.
"We hold that what one man cannot morally do, a million men cannot morally do, and government, representing many millions of men, cannot do." -- Auberon Herbert.
See also anti-tyranny rescue doctrine writers.
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Though this ["original intent/natural right/natural justice"] doctrine may make sad havoc with constitutions and statute books [as per 'original grant'], it is nevertheless law. It fixes and determines the real rights of all men; and its demands are as imperious as any that can exist under the name of law.
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It is possible, perhaps, that this doctrine would spare enough of our existing constitutions, to save our governments from the necessity of a new organization. But whatever else it might spare, one thing it would not spare. It would spare no vestige of that system of human slavery, which now claims to exist by authority of law.*
CHAPTER II.
WRITTEN CONSTITUTIONS.
TAKING it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals—let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.
In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law
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| * The mass of men are so much accustomed to regard law as an arbitrary command of those who administer political power, that the idea of its being a natural, fixed, and immutable principle, may perhaps want some other support than that of the reasoning already given, to commend it to their adoption. I therefore give them the following corroborations from sources of the highest authority.
"Jurisprudence is the science of what is just and unjust."—Justinian.
"The primary and principal objects of the law are rights and wrongs."—Blackstone.
"Justice is the constant and perpetual disposition to render to every man his due."—Justinian.
"The precepts of the law are to live honestly; to hurt no one; to give to every one his due."—Justinian & Blackstone.
"LAW. The rule and bond of men's actions; or it is a rule for the well governing of civil society, to give to every man that which doth belong to him."—Jacob's Law Dictionary.
"Laws are arbitrary or positive, and natural; the last of which are essentially just and good, and bind everywhere, and in all places where they are observed. * * * * Those which are natural laws, are from God; but those which are arbitrary, are properly human and positive institutions."—Selden on Fortescue , C. 17, also Jacob's Law Dictionary.
"The law of nature is that which God, at man's creation, infused into him, for his preservation and direction; and this is an eternal law, and may not be changed."—2 Shep. Abr. 356, also Jac. Law Dict. |
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contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal
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| "All laws derive their force from the law of nature; and those which do not, are accounted as no laws."—Fortescue, Jac. Law Dict.
"No law will make a construction to do wrong , and there are some things which the law favors, and some it dislikes, it favoreth those things that come from the order of nature "—1 Inst. 183, 197 —Jac. Law Dict.
"Of law no less can be acknowledged, than that her seat is the bosom of God, her voice the harmony of the world All things in heaven and earth do her homage, the least as feeling her care, and the greatest as not exempted from her power."— Hooker.
Blackstone speaks of law as "A science, which distinguishes the criterions of right and wrong; which teaches to establish the one, and prevent, punish or redress the other; which employs in its theory the noblest faculties of the soul, and exerts in its practice the cardinal virtues of the heart; a science, which is universal in its use and extent, accommodated to each individual, yet comprehending the whole community "—Blackstone's Lecture on the Study of the Law.
"This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other It is binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid, derive all their force, and all their authority mediately or immediately, from this original."—Blackstone, Vol 1, p 41.
Mr. Christian, one of Blackstone's editors, in a note to the above passage, says:
"Lord Chief Justice [Henry] Hobart has also advanced, that even an act of Parliament made against natural justice, as to make a man judge in his own cause, is void in itself, for jura naturæ sunt immutabilia, and they are leges legum—(the laws of nature are immutable—they are the laws of laws.)—Hob 87.
Mr. Christian then adds:
"With deference to these high authorities, (Blackstone and Hobart,) I should conceive that in no case whatever can a judge oppose his own opinion and authority to the clear will and declaration of the legislature His province is to interpret and obey the mandates of the supreme power of the state. And if an act of Parliament, if we could suppose such a case, should, like the edict of Herod, command all the children under a certain age to be slain, the judge ought to resign his office rather than be auxiliary to its execution, but it could only be declared void by the same legislative power by which it was ordained. If the judicial power were competent to decide that an act of parliament was void because it was contrary to natural justice, upon an appeal to the House of Lords this inconsistency would be the consequence, that as judges they must declare void, what as legislators they had enacted should be valid.
"The learned judge himself (Blackstone) declares in p 91, if the Parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution, that is vested with authority to control it."
It will be seen from this note of Mr. Christian, that he concurs in the opinion that an enactment contrary to natural justice is intrinsically void, and not law; and that the principal, if not the only difficulty, which he sees in carrying out that doctrine, is one that is peculiar to the British constitution, and does not exist in the United States. That difficulty is, the "inconsistency" there would be, if the House of Lords, (which is the highest law court in England, and at the same time one branch of the legislature,) were to declare, in their capacity as judges, that an act was void, which, as legislators, they had declared should be valid. And this is probably the |
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rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed "strictly" in favor
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| reason why Blackstone admitted that he knew of no power in the ordinary forms of the (Bntish) constitution, that was vested with authority to control an act of Parliament that was unreasonable, (against natural justice.) But in the United States, where the judicial and legislative powers are vested in different bodies, and where they are so vested for the very purpose of having the former act as a check upon the latter, no such inconsistency would occur
The constitutions that have been established in the United States, and the discussions had on the formation of them, all attest the importance which our ancestors attached to a separation of the judicial, from the executive and legislative departments of the government And yet the benefits, which they had promised to liberty and justice from this separation, have in slight only, if any degree, been realized.—Although the legislation of the country generally has exhibited little less than an entire recklessness both of natural justice and constitutional authority, the records of the judiciary nevertheless furnish hardly an instance where an act of a legislature has, for either of these reasons, been declared void by its co-ordinate judicial department.
There have been cases, few and far between, in which the United States courts have declared acts of state legislatures unconstitutional. But the history of the co-ordinate departments of the same governments has been, that the judicial sanction followed the legislative act with nearly the same unerring certainty, that the shadow follows the substance. Judicial decisions have consequently had the same effects in restraining the actions of legislatures, that shadows have in restraining the motions of bodies.
Why this uniform concurrence of the judiciary with the legislature? It is because the separation between them is nominal, not real. The judiciary receive their offices and salaries at the hands of the executive and the legislature, and are amenable only to the legislature for their official character They are made entirely independent of the people at large, (whose highest interests are liberty and justice,) and entirely dependent upon those who have too many interests inconsistent with liberty and justice Could a real and entire separation of the judiciary from the other departments take place, we might then hope that their decisions would, in some measure, restrain the usurpations of the legislature, and promote progress in the science of law and of government.
Whether any of our present judges would, (as Mr. Christian suggests they ought,) "resign their offices" rather than be auxiliary to the execution of an act of legislation, that, like the edict of Herod, should require all the children under a certain age to be slain, we cannot certainly know. But this we do know—that our judges have hitherto manifested no intention of resigning their offices to avoid declaring it to be law, that "children of two years old and under," may be wrested forever from that parental protection which is their birthright, and subjected for life to outrages which all civilized men must regard as worse than death.
To proceed with our authorities —
"Those human laws that annex a punishment to murder, do not at all increase its moral guilt, or superadd any fresh obligation in the forum of conscience to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine."—Blackstone, Vol l, p 42, 43.
"The law of nations depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues and agreements between these several communities; in the construction also of which compacts, we have no other rule to resort to |
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of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit:
"Where rights are infringed, where fundamental principles are
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| but the law of nature: (that) being the only one to which all the communities are equally subject "—Blackstone, Vol 1, p 43.
"Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture."—Blackstone, Vol. 1, p 54.
"By the absolute rights of individuals, we mean those which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society, or in it."—Blackstone, Vol. l, p 123.
"The principal aim of society (government) is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies; so that to maintain and regulate these, is clearly a subsequent consideration.
"And therefore the principal view of human law is, or ought always to be, to explain, protect, and enforce such rights as are absolute; which, in themselves, are few and simple and then such rights as are relative, which, arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind."—Blackstone, Vol 1, p 124.
"The absolute rights of man, considered as a free agent, endowed with discern mentto know good from evil, and with power of choosing those measures which appear to him most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature, being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endowed him with the faculty of free will."—Blackstone, Vol 1, p 125.
Moral or natural liberty, (in the words of Burlamaqui, ch 3, s. 15,) is the right, which nature gives to all mankind of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and that they do not any way abuse it to the prejudice of any other men."—Christian's note, Blackstone, Vol 1, p. 126.
"The law of Nature is antecedent and paramount to all human governments. * * * Every individual of the human race comes into the world with rights, which, if the whole aggregate of human power were concentrated in one arm, it could not take away. * * * The Declaration of Independence recognizes no despotism, monarchical, aristocratic, or democratic. It declares that individual man is possessed of rights of which no government can deprive him."—John Quincy Adams.
All the foregoing definitions of law, rights and natural liberty, although some of them are expressed in somewhat vague and indefinite terms, nevertheless recognize the primary idea, that law is a fixed principle, resulting from men's natural rights; |
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overthrown, where the general system of the laws 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."*
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| and that therefore the acknowledgment and security of the natural rights of individuals constitute the whole basis of law as a science, and a sine qua non of government as a legitimate institution.
And yet writers generally, who acknowledge the true theory of government and law, will nevertheless, when discussing matters of legislation, violate continually the fundamental principles with which they set out. On some pretext of promoting a great public good, the violation of individual rights will be justified in particuliar cases; and the guardian principle being once broken down, nothing can then stay the irruption of the whole horde of pretexts for doing injustice; and government and legislation thenceforth become contests between factions for power and plunder, instead of instruments for the preservation of liberty and justice equally to all
The current doctrine that private rights must yield to the public good, amounts, in reality, to nothing more nor less than this, that an individual or the minority must consent to have less than their rights, in order that other individuals, or the majority, may have more than their rights On this principle no honest government could ever be formed by voluntary contract, (as our governments purport to be,) because no man of common sense would consent to be one of the plundered minority, and no honest man could wish to be one of the plundering majority.
The apology, that is constantly put forth for the injustice of government, viz , that a man must consent to give up some of his rights, in order to have his other rights protected—involves a palpable absurdity, both legally and politically. It is an absurdity in law, because it says that the law must be violated in some cases, in order that it may be maintained in others It is an absurdity politically, because a man's giving up one of his rights has no tendency whatever to promote the protection of others. On the contrary, it only renders him less capable of defending himself, and consequently makes the task of his protection more burdensome to the government.
At the same time it places him in the situation of one who has conceded a part of his rights, and thus cheapened the character of all his rights in the eyes of those of whom he asks assistance. There would be as much reason in saying that a man must consent to have one of his hands tied behind him, in order that his friends might protect the rest of his body against an enemy, as there is in saying that a man must give up some of bis rights in order that government may protect the remainder. Let a man have the use of both of his hands, and the enjoyment of all his rights, and he will then be more competent to his own defence; his rights will be more respected by those who might otherwise be disposed to invade them; he will want less the assistance and protection of others; and we shall need much less government than we now have.
If individuals choose to form an association or government, for the mutual protection of each other's rights, why hargim for the protection of an indefinite portion of them, at the price of giving to the association itself liberty to violate the equally indefinite remainder. By such a contract, a man really surrenders everything, and secures nothing. Such a contract of government would be a burlesque on the wisdom of asses. Such a contract never was, nor ever will be voluntarily formed. Yet all our governments act on that principle; and so far as they act upon it, they are as essentially usurping and tyrannical as any governments can be. If a man pay his proportion of the aggregate cost of protecting all the rights of each of the
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*United States vs. Fisher, 2 Cranch, 390 [6 US 358, 390; 2 L Ed 304, 314 (1804)]. |
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It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law.
For the more convenient consideration of this point, we will divide the constitutional history of the country into three periods; the first embracing the time from the first settlement of the country up to the Declaration of Independence; the second embracing the time from the Declaration of Independence to the adoption of the Constitution of the United States in 1789; and the third embracing all the time since the adoption of the Constitution of the United States.
Let us now consider the first period; that is, from the settlement of the country, to the Declaration of Independence.
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| members of the association, he thereby acquires a claim upon the association to have his own rights protected without diminution.
The ultimate truth on this subject is, that man has an inalienable right to so much personal liberty as he will use without invading the rights of others. This liberty is an inherent right of his nature and his faculties. It is an inherent right of his nature and his faculties to develop themselves freely, and without restraint from other natures and faculties, that have no superior prerogatives to his own. And this right has only this limit, viz., that he do not carry the exercise of his own liberty so far as to restrain or infringe the equally free development of the natures and faculties of others. The dividing line between the equal liberties of each must never be transgressed by either. This principle is the foundation and essence of law and of civil right. And legitimate government is formed by the voluntary association of individuals, for the mutual protection of each of them in the enjoyment of this natural liberty, against those who may be disposed to invade it. Each individual being secured in the enjoyment of this liberty, must then take the responsibility of his own happiness and well-being. If his necessities require more than his faculties will supply, he must depend upon the voluntary kindness of his fellow-men; unless he be reduced to that extremity where the necessity of self-preservation over-rides all abstract rules of conduct, and makes a law for the occasion—an extremity, that would probably never occur but for some antecedent injustice.
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CHAPTER III.
THE COLONIAL CHARTERS.
WHEN our ancestors came to this country, they brought with them the common law of England, including the writ of habeas corpus, (the essential principle of which, as will hereafter be shown, is to deny the right of property in man,) the trial by jury, and the other great principles of liberty, which prevail in England, and which have made it impossible that her soil should be trod by the foot of a slave.
These principles were incorporated into all the charters, granted to the colonies, (if all those charters were like those I have examined, and I have examined nearly all of them.)—The general provisions of those charters, as will be seen from the extracts given in the note, were, that the laws of the colonies should "not be repugnant or contrary, but, as nearly as circumstances would allow, conformable to the laws, statutes and rights of our kingdom of England."*
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*| The second charter to Virginia (1609) grants the power of making "orders, ordinances, constitutions, directions and instructions," "so always as the said statutes, ordinances and proceedings, as near as conveniently may be, be agreeable to the laws, statutes, government and policy of this our realm of England."
The third charter (1611-12) gave to the "General Court" "power and authority" to "make laws and ordinances" "so always as the same be not contrary to the laws and statutes of our realm of England."
The first charter to Carolina, (including both North and South Carolina,) dated 1663, authorized the making of laws under this proviso—"Provided nevertheless, that the said laws be consonant to reason, and as near as may be conveniently agreeable to the laws and customs of this our kingdom of England."
The second charter (1665) has this proviso "Provided nevertheless, that the said laws be consonant to reason, and as near as may be conveniently, agreeable to the laws and customs of this our realm of England."
The charter to Georgia, (1732,) an hundred years after slavery had actually existed in Virginia, makes no mention of slavery, but requires the laws to be "reasonable and not repugnant to the laws of this our realm." "The said corporation shall and may form and prepare laws, statutes and ordinances fit and necessary for and concerning the government of the said colony, and not repugnant to the laws and statutes of England."
The charter to Maryland gave the power of making laws, "So, nevertheless, that the laws aforesaid be consonant to reason, and be not repugnant or contrary, but (so far as conveniently may be,) agreeable to the laws, statutes, customs, and rights of this our kingdom of England."
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Those charters were the fundamental constitutions of the colonies, with some immaterial exceptions, up to the time of the revolution; as much so as our national and slate constitutions are now the fundamental laws of our governments.
The authority of these charters, during their continuance, and the general authority of the common law, prior to the revolution, have been recognized by the Supreme Court of the United States.*
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| The charter granted to Sir Edward Plowden had this proviso. "So, nevertheless, that the laws aforesaid he consonant to reason, and not repugnant and contrary (but as convenient as may be to the matter in question,) to the laws, statutes, customs and rights of our kingdoms of England and Ireland."
In the charter to Pennsylvania, power was granted to make laws, and the people were required to obey them, "Provided nevertheless that the said laws be consonant to reason, and be not repugnant or contrary, but, as near as conveniently may be, agreeable to the laws, statutes, and rights of this our kingdom of England."
I have not been able to find a copy of the charter granted to the Duke of York, of the territory comprising New York, New Jersey, &c. But Gordon, in his history of the American Revolution, (vol. 1, p. 43,) says, " The King's grant to the Duke of York, is plainly restrictive to the laws and government of England."
The charter to Connecticut gave power "Also from time to time, to make, ordain and establish all manner of wholesome and reasonable laws, statutes, ordinances, directions and instructions, not contrary to the laws of this realm of England."
The charter to the Massachusetts Bay Colony (granted by William and Mary,) gave "full power and authority, from time to time, to make, ordam and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to the laws of this our realm of England."
The charter to Rhode Island granted the power of making laws, "So as such laws, ordinances, constitutions, so made, be not contrary and repugnant unto, but (as near as may be) agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there."
Several other charters, patents, &c, that had a temporary existence, might be named, that contained substantially the same provision.
*In the case of the Town of Pawlet v. Clarke and others, [13 US (9 Cr) 292, 332-333; 3 L Ed 735, 749-750 (10 March 1815)], the court say—
"Let us now see how far these principles were applicable to New Hampshire, at the time of issuing the charter to Pawlet.
"New Hampshire was originally erected into a royal province in the thirty-first year of Charles II., and from thence until the revolution continued a royal province, under the immediate control and direction of the crown. By the first royal commission granted in 31 Charles II., among other things, judicial powers, in all actions, were granted to the provincial governor and council, 'So always that the form of proceeding in such cases, and the judgment thereupon to be given, be as consonant and agreeable to the laws and statutes of this our realm of England, as the present state and condition of our subjects inhabiting within the limits aforesaid (i. e. of the province) and the circumstances of the place will admit.' Independent, however, of such a provision, we take it to be a clear principle that the common law in force at the emigration of our ancestors, is deemed the birthright of the colonies, unless so far as it is inapplicable to their situation, or repugnant to their other rights tind privileges. A fortiori the principle applies to a royal province "—(9 Cranch's U. States' Reports, 332-3 [13 US].)
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No one of all these charters that I have examined—and I have examined nearly all of them—contained the least intimation that slavery had, or could have any legal existence under them. Slavery was therefore as much unconstitutional in the colonies, as it was in England.
It was decided [in the case of Somerset v Stewart] by the Court of King's Bench in England—Lord Mansfield being Chief Justice—before our revolution, and while the English Charters were the fundamental law of the colonies—that the principles of English liberty were so plainly incompatible with slavery, that even if a slaveholder, from another part of the world, brought his slave into England—though only for a temporary purpose, and with no intention of remaining—he nevertheless thereby gave the slave his liberty.
Previous to this decision, the privilege of bringing slaves into England, for temporary purposes, and of carrying them away, had long been tolerated [practice].
This decision was given in the year 1772.* And for aught I see, it [the Somerset decision] was equally obligatory in this country as in England, and must have freed every slave in this country, if the question had then been raised here. But the slave knew not his rights, and had no one to raise the question for him.
Ed. Note: George Mellen, in Unconstitutionality of Slavery [Boston: Saxton & Pierce, 1841], pp 30-33; Alvan Stewart, Speech on Slavery Unconstitutionality (New York: Finch & Weed, 1845), p 42; and 431-432, had said likewise four years earlier, in 1841; and Abraham Lincoln, in his Speech at Peoria, would say likewise nine years later, in 1854. This case was widely known.
Indeed, "the [Somerset] precedent had become part of American common law."—William M. Wiecek, "Somerset's Case," Encyclopedia of the American Constitution, Leonard W. Levy and Kenneth L. Karst, eds. (New York: Macmillan Reference USA, 2000), Vol 5, pp 2451-2452.
In law, the framers of a constitution are presumed to have knowledge of judicial construction of existing constitutional provisions. Jones v Ypsilanti, 26 Mich App 574; 182 NW2d 795 (1970).
And in fact, "Chief Justice Marshall (12 Wheat. 653, 654 [827)]) lays great stress on the framers of the constitution having been acquainted with the principles of the common law, and acting in reference to them. Most of them were able lawyers; and certainly able lawyers drew up, and revised the instrument. Are we, then, to believe, that if they had any design to take away the common law right, or to authorize congress to take it away or to impair it; they would, knowing the rules of construction cited, and like common law maxims, have used the language they have? There is the strongest reason to believe, from the language, it was adopted for the purpose of preserving it [the right], and to reserve from congress any power over it. This probability arises, almost irresistibly, from the language used; and under the circumstances that it was used. . . . This case, and all the law on this subject, discussed and decided by it, must have been known to the lawyers of the [constitutional] convention." Wheaton v Peters, 33 US 591, 602; 8 Peters, 8 L Ed 1055, 1059 (1834). |
The fact, that slavery was tolerated in the colonies, is no evidence of its legality; for slavery was tolerated, to a certain extent, in England, (as we have already seen,) for many years previous to the decision just cited—that is, the holders of slaves from abroad were allowed to bring their slaves into England, hold them during their stay there, and carry them away when they went. But the toleration of this practice did not make it lawful, notwithstanding all customs, not palpably and grossly contrary to the principles of English liberty, have great weight, in England, in establishing law.
The fact, that England tolerated, (i. e. did not punish criminally,) the African slave-tradeat that time, could not legally establish slavery in the colonies, any more than it did in England—especially in defiance of the positive requirements of the charters, that the colonial legislation should be consonant to reason, and not repugnant to the laws of England.
Besides, the mere toleration of the slave trade could not make slavery itself—the right of property in man—lawful anywhere;
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| *Somerset v. Stewart.—Lofft's Reports, p 1 to 19, of Easter Term, 1772. In the Dublin edition, the case is not entered in the Index.
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not even on board the slave ship. Toleration of a wrong is not law. And especially the toleration of a wrong, (i.e. the bare omission to punish it criminally,) does not legalize one's claim to property obtained by such wrong. Even if a wrong can be legalized at all, so as to enable one to acquire rights of property by such wrong, it can be done only by an explicit and positive provision.
The English statutes, on the subject of the slave trade, (so far as I have seen,) never attempted to legalize the right of property in man, in any of the thirteen North American colonies. It is doubtful whether they ever attempted to do it anywhere else. It is also doubtful whether Parliament had the power—or perhaps rather it is certain that they had not the power—to legalize it anywhere, if they had attempted to do so.*
And the cautious and curious phraseology of their statutes on the subject, indicates plainly that they themselves either doubted their power to legalize it, or feared to exercise it. They have therefore chosen to connive at slavery, to insinuate, intimate, and imply their approbation of it, rather than risk an affirmative enactment declaring that one man may be the property of another. But Lord Mansfield said, in Somerset's case, that slavery was "so odious that nothing can be suffered to support it, but positive law." No such positive law (I presume) was ever passed by Parliament—certainly not with reference to any of these thirteen colonies.
The statute of 1788, (which I have not seen,) in regard to the slave trade, may perhaps have relieved those engaged, in it, in certain cases, from their liability to be punished criminally for the act. But there is a great difference between a statute, that should merely screen a person from punishment for a crime, and one that should legalize his right to property acquired by the crime. Besides, this act was passed after the separation between America and England, and therefore could have done nothing towards legalizing slavery in the United States, even if it had legalized it in the English dominions.
The statutes of 1750, (23, George 2d, Ch. 31,) may have possibly authorized, by implication, (so far as Parliament could thus authorize,) the colonial governments, (if governments they could be called,) on the coast of Africa, to allow slavery under
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| *Have Parliament the constitutional prerogative of abolishing the writ of habeas corpus? the trial by jury? or the freedom of speech and the press? If not, have they the prerogative of abolishing a man's right of property in his own person?
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certain circumstances, and within the "settlements" on that coast. But, if it did, it was at most a grant of a merely local authority. It gave no authority to carry slaves from the African coast.
But even if it had purported distinctly to authorize the slave trade from Africa to America, and to legalize the right of property in the particular slaves thereafter brought from Africa to America, it would nevertheless have done nothing [ex post facto/bill-of-attainder style] towards legalizing the right of property in the slaves that had been brought to, and born in, the colonies for an hundred and thirty years previous to the statute. Neither the statute, nor any right of property acquired under it, (in the individual slaves thereafterwards brought from Africa,) would therefore avail anything for the legality of slavery in this country now; because the descendants of those brought from Africa under the act, cannot now be distinguished from the descendants of those who had, for the hundred and thirty years previous, been held in bondage without law.
But the presumption is, that, even after this statute was passed in 1750, if the slave trader's right of property in the slave he was bringing to America, could have been brought before an English court for adjudication, the same principles would have been held to apply to it, as would have applied to a case arising within the island of Great Britain. And it must therefore always have been held by English courts, (in consistency with the decisions in Somerset's case,) that the slave trader had no legal ownership of his slave. And if the slave trader had no legal right of property in his slave, he could transfer no legal right of property to a purchaser in the colonies. Consequently the slavery of those that were brought into the colonies after the statute of 1750, was equally illegal with that of those who had been brought in before.*
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| *Mr. [George] Bancroft [1800-1891], in the third volume of his history, (pp. 413-14,) says:
“And the statute book of England soon declared the opinion of its king and its Parliament, that 'the trade,'” (by which he [Bancroft] means the slave trade, of which he is writing,) “'is highly beneficial and advantageous to the kingdom and the colonies.'” To prove this he refers to statute of "1695, 8 and 10 Wm. 3, ch. 26." (Should be 1697, 8-9 and 10 Wm. 3, ch. 26.)
Now the truth is that, although this statute may have been, and very probably was designed to insinuate to the slave traders the personal approbation of Parliament to the slave trade, yet the statute itself says not a word of slaves, slavery, or the slave trade, except to forbid, under penalty of five hundred pounds, any governor, deputy-governor or judge, in the colonies or plantations in America, or any other person or persons, for the use or on the behalf of such governor, deputy-governor or judges, to be “a factor or factor's agent or agents” “for the sale or disposal of any negroes.”
The statute does not declare, as Mr. Bancroft asserts, that “the (slave) trade is
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The conclusion of the whole matter is, that until some reason appears against them, we are bound by the decision of the King's
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| highly beneficial and advantageous to the kingdom and the colonies;" but that "the trade to Africa is highly beneficial and advantageous," &c. It is an inference of Mr. Bancroft's that “the trade to Africa” was the slave trade. Even this inference [assumption] is not justified by the words of the statute, considering them in that legal view, in which Mr. Bancroft's remarks purport to consider them.
It is true that the statute assumes that "negroes" will be " imported" from Africa into "England," (where of course they were not slaves,) and into the "plantations and colonies in America " But it nowhere calls these "negroes" slaves, nor assumes that they are slaves For aught that appears from the statute, they were free men and passengers, voluntary emigiants, going to "England" and "the plantations and colonies" as laborers, as such persons are now going to the British West Indies.
The statute, although it apparently desires to insinuate or faintly imply that they are property, or slaves, nevertheless studiously avoids to acknowledge them as such distinctly, or even by any necessaiy implication, for it exempts them from duties as merchandize, and from forfeiture for violation of revenue laws, and it also relieves the masters of vessels from any obligation to lender any account of them at the custom houses.
When it is considered that slavery, property in man, can be legalized, according to the decision of Lord Mansfield, by nothing less than positive law; that the rights of property and person are the same on board an English ship, as in the island of Great Britain; and that this statute implies that these "negroes" were to be "imported" into "England," as well as into the "plantations and colonies in America," and that it therefore no more implies that they were to be slaves in "the plantations and colonies" than in "England," where we know they could not be slaves; when these things are considered, it is peifectly clear, as a legal proposition, that the statute legalized neither slavery in the plantations and colonies, nor the slave trade from Afuca to America—however we may suppose it to have been designed to hint a personal approbation, on the part of Parliament, of the actual traffic.
But lest I may be suspected of having either misrepresented the words of the statute, or placed upon them an erroneous legal construction, I give all the words of the statute, that make any mention of "negroes," or their importation, with so much of the context as will enable the reader to judge for himself of the legal import of the whole.
The act is entitled, "An Act to settle the Trade to Africa." Sec. 1, recites as follows:—
"Whereas, the Trade to Africa is highly beneficial and advantageous to this kingdom and to the Plantations and Colonies thereunto belonging "
The act contains twenty-one sections, regulating trade, duties, &c., like any other navigation act. "Negroes" are mentioned only in the following instances and connexions, to wit:
Sec. 7. "And be it enacted by the authority aforesaid, That from and after the four-and-twentieth day of June, one thousand six hundred ninety-and-eight, it shall and may he lawful to and for any of the subjects of his majesty's realms of England, as well as the said Company,* to trade from England or any of his majesty's plantations orcolonies in America to the coast of Africa, between Blanco and Cape Mount, answering and paying a duty of ten pounds per centum ad valorem for the goods and merchandises to be exported from England or any of his majesty's plan-
*The Royal African Company. |
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Bench in 1772, and the colonial charters. That decision declared that there was, at that time, in England, no right of property in
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| tations or colonies in America to and for the coast of Africa, between Cape Blanco and Cape Mount and in proportion for a greater or lesser value, and answering and paying a further sum and duty of ten pounds per centum ad valorem, red wood only excepted, which is to pay five pounds per centum ad valorem, at the place of importation upon all goods and merchandize (negroes excepted) imported in (into) England or any of his majesty's plantations or colonies in America, from the coast of Africa, between Cape Blanco and Cape Mount aforesaid * * * And that all goods and merchandize, (negroes excepted,) that shall be laded or put on board any ship or vessel on the coast of Africa, between Cape Blanco and Cape Mount, and shall be imported into England or into any of his majesty's plantations or colonies aforesaid, shall answer and pay the duties aforesaid, and that the master or chief officer of every such ship or vessel that shall lade or receive any goods or merchandize (negroes excepted) on board of his or their ship or vessel between Cape Blanco and Cape Mount, shall upon making entry at any of his majesty's custom houses aforesaid of the said ship or vessel or before any goods or merchandize be landed or taken out of the said ship or vessel (negroes excepted) shall deliver in a manifest or particular of his cargo, and take the following oath, viz.
"I, A. B., do swear that the manifest or particular now by me given in and signed, to the best of my knowledge and belief doth contain, signify and express all the goods, wares and merchandizes, (negroes excepted,) which were laden or put on board the ship called the ———, during her stay and continuing on the coast of Africa between Cape Blanco and Cape Mount, whereof I, A. B., am master."
Sec 8. "And that the owner or importer of all goods and merchandize (negroes excepted) which shall be brought to England or any of his majesty's plantations from any port of Africa between Cape Blanco and Cape Mount aforesaid shall make entry of all such goods and merchandize at one of his majesty's chief custom houses in England, or in such of his majesty's plantations where the same shall be imported," &c
Sec. 9 * * * "that all goods or merchandizes (negroes excepted) which shall be brought from any part of Africa, between Cape Blanco and Cape Mount aforesaid, which shall be unladed or landed before entry made and signed and oath of the true and real value thereof made and the duty paid as aforesaid, shall be forfeited, or the value thereof."
Sec. 20. "And be it further enacted by the authority aforesaid, that no governor, or depute governor of any of his majesty's colonies or plantations in America, or his majesty 's judges in any courts there for the time being, nor any other person or persons for the use or on behalf of such governor or deputy-governor or judges, from and after the nine and twentieth day of September, one thousand six hundred and ninety-eight, shall be a factor or factor's agent or agents for the said Company,* or any other person or persons for the sale or disposal of any negroes, and that every person offending herein shall forfeit five hundred pounds to the uses aforesaid, to be recovered in any of his majesty's courts of record at Westminster, by action of debt, bill, plaint or information, wherein no essoign, protection, privilege or wager of law shall he allowed, nor any more than one imparlance.''
Sec. 21 "Provided that this act shall continue and be in force thirteen years, and from thence to the end of the next sessions of Parliament, and no longer."
Even if this act had legalized (as m reality it did not legalize) the slave trade during those thirteen years, it would be impossible now to distinguish the descend-
*The Royal African Company. |
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man, (notwithstanding the English government had for a long time connived at the slave trade.)—The colonial charters required
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| ants of those who were imported under it, from the descendants of those who had been previously, and were subsequently imported and sold into slavery without law. The act would therefore avail nothing [ex post facto/bill-of-attainder style] towards making the existing slavery in this country legal.
The next statute, of which I find any trace, passed by Parliament, with any apparent view to countenance the slave trade, was the statute of 23d George II, ch. 31, (1749-50 )
Mr. [George] Bancroft [1800-1891] has committed another still more serious error in his statement of the words (for he professes to quote precise words) of this statute. He says, (vol 3, p. 414.)
"At last, in 1749, to give the highest activity to the trade, (meaning the slave trade,) every obstruction to private enterprise was removed, and the ports of Africa were laid open to English competition, for 'the slave trade'—such" (says Mr. [George] Bancroft [1800-1891],) "are the words of the statute—'the slave trade is very advantageous to Great Britain.'"
As words are, in this case, things—and things of the highest legal consequence—and as this history is so extensively read and received as authority—it becomes important, in a legal, if not historical, point of view to correct so important an error as that of the word slave in this statement.
"The words of the statute" are not that "the slave trade," but that "the trade to and from Africa is very advantageous to Great Britain." "The trade to and from Africa" no more means, in law, "the slave trade," than does the trade to and from China. From aught that appears, then, from so much of the preamble, "the trade to and from Africa" may have been entirely in other things than slaves. And it actually appears from another part of the statute, that trade was carried on in "gold, elephant s teeth, wax, gums and drugs."
From the words immediately succeeding those quoted by Mr. [George] Bancroft [1800-1891] from the preamble to this statute, it might much more plausibly, (although even from them it could not be legally) inferred that the statute legalized the slave trade, than from those pretended to be quoted by him. That the succeeding words may be seen, the title and preamble to the act are given, as follows:
"An act for extending and improving the trade to Africa."
"Whereas, the trade to and from Africa is very advantageous to Great Britain, and necessary for supplying the plantations and colonies thereunto belonging, with a sufficient number of NEGROES at reasonable rates, and for that purpose the said trade" (i. e. "the trade to and from Africa") "ought to be free and open to all his majesty's subjects. Therefore be it enacted," &c.
"Negroes" were not slaves by the English law, and therefore the word "negroes," in this preamble, does not legally mean slaves. For aught that appears from the words of the preamble, or even from any part of the statute itself, these "negroes," with whom it is declared to be necessary that the plantations and colonies should be supplied, were free persons, voluntary emigrants, that were to be induced to go to the plantations as hired laborers, as are those who at this day, are induced, in large numbers, and by the special agency of the English government, to go to the British West Indies. In order to facilitate this emigration, it was necessary that "the trade to and from Africa" should be encouraged.
And the form of the preamble is such as it properly might have been, if such had been the real object of Parliament. Such is undoubtedly the true legal meaning of this preamble, for this meaning being consistent with natural right, public policy, and with the fundamental principles of English law, legal rules of construction imperatively require
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the legislation of the colonies to be "consonant to reason, and. not repugnant or contrary, but conformable, or agreeable, as nearly as
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| that this meaning should be ascribed to it, rather than it should be held to authorize anything contrary to natural right, or contrary to the fundamental principles of British law
We are obliged to put this construction upon this preamble, for the further reason that it corresponds with the enacting clauses of the statute—not one of which mentions such a thing as the transportation of slaves to, or the sale of slaves in "the plantations and colonies." The first section of the act is in these words, to wit:
"That it shall and may be lawful for all his majesty's subjects to trade and traffic to and from any port or place in Africa, between the port of Sallee in South Barbary, and the Cape of Good Hope, when, at such times, and in such manner, and in or with such quantity of goods, wares and merchandizes, as he or they shall think fit, without any restraint whatsoever, save as is herein after expressed."
Here plainly is no authority given "to trade and traffic" in anything except what is known either to the English law, or the law of nature, as "goods, wares, or merchandizes"—among which men were not known, either to the English law, or the law of nature.
The second section of the act is in these words:
"That all his majesty's subjects, who shall trade to or from any of the ports or places of Africa, between Cape Blanco and the Cape of Good Hope, shall forever hereafter be a body corporate and politic, in name and in deed, by the name of the Company of Merchants Trading to Africa, and by the same name shall have perpetual succession, and shall have a common seal, and by that name shall and may sue, and be sued, and do any other act, matter and thing, which any other body corporate or politic, as such, may lawfully do."
Neither this nor any other section of the act purports to give this "Company," in its corporate capacity, any authority to buy or sell slaves, or to transport slaves to the plantations and colonies.
The twenty ninth section, of the act is in these words:
"And be it further enacted, by the authority aforesaid, that no commander or master of any ship trading to Africa, shall by fraud, force or violence, or by any other indirect practice whatsoever, take on board, or carry away from the coast of Africa any negro or native of the said country, or commit, or suffer to be committed, any violence on the natives, to the prejudice of the said trade; and that every person so offending shall, for every such offence, forfeit the sum of one hundred pounds of lawful money of Great Britain; one moiety thereof to the use of the said Company hereby established, and their successors, for and towards the maintaining of said forts and settlements, and the other moiety to and for the use of him or them who shall inform or sue for the same."
Now, although there is perhaps no good reason to doubt that the secret intention of Parliament in the passage of this act, was to stimulate the slave trade, and that there was a tacit understanding between the government and the slave dealers, that the slave trade should go on unharmed (in practice) by the government, and although it was undoubtedly understood that this penalty of one hundred pounds would either not be sued for at all, or would be sued for so seldom as practically to interpose no obstacle to the general success of the trade, still, as no part of the whole statute gives any authority to this "Company of Merchants trading to Africa" to transport men from Africa against their will, and as this twenty-ninth section contains a special prohibition to individuals, under penalty, to do so, no one can pretend that the trade was legalized. If the penally had been but one pound, instead of one hundred pounds, it would have been sufficient, in law, to have
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circumstances would allow, to the laws, statutes and rights of the realm of England." That decision, then, if correct, settled the
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| rebutted the pretence that the trade was legalized. The act, on its face and in its legal meaning, is much more an act to prohibit, than to authorize the slave trade.
The only possible legal inference from the statute, so far as concerns the "supplying the plantations and colonies with negroes at reasonable rates," is, that these negroes were free laborers, voluntary emigrants, that were to be induced to go to the plantations and colonies, and that "the trade to and from Africa" was thrown open in order that the facilities for the transportation of these emigrants might be increased.
But although there is, in this statute, no authority given for—but, on the contrary, a special prohibition upon—the transportation of the natives from Africa against their will, yet I freely admit that the statute contains one or two strong, perhaps decisive implications in favor of the fact that slavery was allowed in the English settlements on the coast of Africa, apparently in conformity with the customs of the country, and with the approbation of Parliament. But that is the most that can be said of it. Slavery, wherever it exists, is a local institution, and its toleration, or even its legality, on the coast of Africa, would do nothing towards making it legal in any other part of the English dominions. Nothing but positive and explicit legislation could transplant it into any other part of the empire.
The implications, furnished by the act, in favor of the toleration of slavery, in the English settlements, on the coast of Africa, are the following:
The third section of the act refers to another act of Parliament "divesting the Royal African Company of their charter, forts, castles and military stores, canoe men and castle-slaves;" and section thirty first requires that such "officers of his majesty's navy," as shall be appointed for the purpose, "shall inspect and examine the state and condition of the forts and settlements on the coast of Africa in the possession of the Royal African Company, and of the number of the soldiers therein, and also the state and condition of the military stores, castles, slaves, canoes and other vessels and things, belonging to the said company, and necessary for the use and defence of the said forts and settlements, and shall with all possible despatch report how they find the same."
Here the fact is stated that the "Royal African Company," (a company that had been in existence long previous to the passing of this act,) had held "castle slaves" "for the use and defence of the said forts and settlements." The act does not say directly whether this practice was legal or illegal, although it seems to imply that, whether legal or illegal, it was tolerated with the knowledge and approbation of Parliament.
But the most distinct approbation given to slavery by the act, is implied in the twenty-eighth section, in these words:
"That it shall and may be lawful for any of his majesty's subjects trading to Africa, for the security of their goods and slaves, to erect houses and warehouses, under the protection of the said forts," &c.
Although even this language would not be strong enough to overturn previously established principles of English law, and give the slave holders a legal right of property in their slaves, in any place where English law had previously been expressly established, (as it had been in the North American colonies,) yet it sufficiently evinces that Parliament approved of Englishmen holding slaves in the settlements on the coast of Africa, in conformity with the customs of that country. But it implies no authority for transporting their slaves to America, it does nothing towards legalizing slavery in America, it implies no toleration even of slavery anywhere, except upon the coast of Africa. Had slavery been positively and
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law both for England and the colonies. And if so, there was no constitutional slavery in the colonies up to the time of the revolution.
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| explicitly legalized on the coast of Africa, it would still have been a local institution
This reasoning may appear to some like quibbling, and it would perhaps be so, were not the rule well settled that nothing but explicit and irresistible language can be legally held to authorize anything inconsistent with natural right, and with the fundamental principles of a government.
That this statute did not legalize the right of property in man, (unless as a local principle on the coast of Africa,) we have the decision of Lord Mansfield, who held that it did not legalize it in England, and if it did not legalize it in England, it did not legalize it in any of the colonies where the principles of the common law prevailed. Of course it did not legalize it in the North American colonies.
But even if it were admitted that this statute legalized the right of property, on the part of the slave trader, in his slaves taken in Africa after the passage of the act, and legalized the sale of such slaves in America, still the statute would be ineffectual to sustain the legality of slavery, in general, in the colonies. It would only legalize the slavery of those particular individuals, who should be transported from Africa to America, subsequently to the passage of this act, and in strict conformity with the law of this act — (a thing, by the way, that could now be proved in no case whatever.)
This act was passed in 1749-50, and could therefore do nothing [ex post facto/bill-of-attainder style] towards legalizing the slavery of all those who had, for an hundred and thirty years previous, been held in bondage in Virginia and elsewhere. And as no distinction can now be traced between the descendants of those who were imported under this act, and those who had illegally been held in bondage prior to its passage, it would be of no practical avail to slavery now, to prove, (if it could be proved,) that those introduced into the country subsequent to 1750, were legally the property of those who introduced them.
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CHAPTER IV.
COLONIAL STATUTES
BUT the colonial legislation on the subject of slavery, was not only void as being forbidden by the colonial charters, but in many of the colonies it was void for another reason, viz., that it did not sufficiently define the persons who might be made slaves.
Slavery, if it can be legalized at all, can be legalized only by positive legislation. Natural law gives it no aid. Custom imparts to it no legal sanction. This v/as the doctrine of the King's Bench in Somerset's case, as it is the doctrine of common sense. Lord Mansfield said,"So high an act of dominion must be recognized by the law of the country where it is used. * * * The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political—but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from the memory. It is so odious that nothing can be suffered to support it but positive law."
Slavery, then, being the creature of positive legislation alone, can be created only by legislation that shall so particularly describe the persons to be made slaves, that they may be distinguished from all others. If there be any doubt left by the letter of the law, as to the persons to be made slaves, the efficacy of all other slave legislation is defeated simply by that uncertainty.
In several of the colonies, including some of those where slaves were most numerous, there were either no laws at all defining the persons who might be made slaves, or the laws, which attempted to define them, were so loosely framed that it cannot now be known who are the descendants of those designated as slaves, and who of those held in slavery without any color of law. As the presumption must—under the United States constitution—and indeed under the state constitutions also—be always in favor of liberty, it would probably now be impossible for a slaveholder to prove, in one case in an hundred, that his slave was descended, (through the maternal line, according to the slave code,) from any one who was originally a slave within the description given by the statutes.
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When slavery was first introduced into the country, there were no laws at all on the subject. Men bought slaves of the slave traders, as they would have bought horses; and held them, and compelled them to labor, as they would have done horses, that is, by brute force. By common consent among the white race, this practice was tolerated without any law.
At length slaves had in this way become so numerous, that some regulations became necessary, and the colonial governments began to pass statutes, which assumed the existence of slaves, although no laws defining the persons who might be made slaves, had ever been enacted. For instance, they passed statutes for the summary trial and punishment of slaves; statutes permitting the masters to chastise and baptize their slaves,* and providing that baptism should not be considered, in law, an emancipation of them. Yet all the while no act had been passed declaring who might be slaves. Possession was apparently all the evidence that public sentiment
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*"Chastise." An act passed in South Carolina in 1740, authorized slaves to sue for their liberty, by a guardian appointed for the purpose. The act then provides that if judgment be for the slave, he shall be set free, and recover damages; "but in case judgment shall be given for the defendant, (the master,) the said court is hereby fully empowered to inflict such corporeal punishment, not extending to life or limb, on the ward of the plaintiff, (the slave,) as they in their discretion shall see fit."—Brevard's Digest, vol 2, p. 130.
"Baptize." In 1712 South Carolina passed this act:
"Since charity and the Christian religion which we profess, obliges us to wish well to the souls of all men, and that religion may not be made a pretence to alter any man's property and right, and that no persons may neglect to baptize their negroes or slaves, or suffer them to be baptized, for fear that thereby they should be manumitted and set free. Be it therefore enacted, That it shall be, and is hereby declared lawful for any negro or Indian slave, or any other slave or slaves whatsoever, to receive and profess the Christian faith, and be thereunto baptized. But that notwithstanding such slave or slaves shall receive and profess the Christian religion, and be baptized, he or they shall not thereby be manumitted or set free, or his or their owner, master or mistress lose his or their civil right, property and authority over such slave or slaves, but that the slave or slaves, with respect to his or their servitude, shall remain and continue in the same state and condition, that he or they was in before the making of this act."—Grimké, p. 18. Brevard, vol. 2, p. 229.
In 1667, the following statute was passed in Virginia:
"Whereas, some doubts have arisen whether children that are slaves by birth, and by the charity and piety of their owners made partakers of the blessed sacrament of baptism, should by virtue of their baptism be made free; It is enacted and declared by this grand assembly, and the authority thereof, that the conferring of baptism doth not alter the condition of the person as to his bondage or freedom; that divers masters, freed from this doubt, may more carefully endeavour the propagation of Christianity by permitting children, though slaves, or those of greater growth, if capable to be admitted to that sacrament."—Hening's Statutes, vol 2. p. 260.
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demanded, of a master's property in his slave. Under such a code, multitudes, who had either never been purchased as slaves, or who had once been emancipated, were doubtless seized and reduced to servitude by individual rapacity, without any more public cognizance of the act, than if the person so seized had been a stray sheep.
Virginia. Incredible as it may seem, slavery had existed in Virginia fifty years before even a statute was passed for the purpose of declaring who might be slaves; and then the persons were so described as to make the designation of no legal effect, at least as against Africans generally. And it was not until seventy-eight years more, (an hundred and twenty-eight years in all,) that any act was passed that would cover the case of the Africans generally, and make them slaves.
Slavery was introduced in 1620, but no act was passed even purporting to declare who might be slaves, until 1670. In that year a statute was passed in these words: "That all servants, not being Christians, imported into this country by shipping, shall be slaves for their lives."*
This word "servants" of course legally describes individuals known as such to the laws, and distinguished as such from other persons generally. But no class of Africans "imported," were known as "servants," as distinguished from Africans generally, or in any manner to bring them within the legal description of "servants," as here used.
In 1682 and in 1705 acts were again passed declaring "that all servants," &c., imported, should be slaves. And it was not until 1748, after slavery had existed an hundred and twenty-eight years, that this description was changed for the following:
"That all persons, who have been or shall be imported into this colony," &c., &c., shall be slaves.†
In 1776, the only statute in Virginia, under which the slave-holders could make any claim at all to their slaves, was passed as late as 1753, (one hundred and thirty-three years after slavery had been introduced;) all prior acts having been then repealed, without saving the rights acquired under them.‡
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| *Hening, vol. 2, p. 283.
†Hening, vol. 5, p. 547-8.
‡In 1753 Virginia passed a statute, occupying some twelve or fifteen pages of the statute book, and intended to cover the whole general subject of slavery. One of the sections of this act is as follows:
"That all and every other act and acts, clause and clauses, heretofore made, for
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Even if the colonial charters had contained no express prohibition upon slave laws, it would nevertheless be absurd to pretend that the colonial legislature had power, in 1753, to look back [vaguely, and ex post facto/bill-of-attainder style] an hundred and thirty-three years, and arbitrarily reduce to slavery all colored persons that had been imported into, or born in the colony within that time. If they could not do this, then it follows that all the colored persons in Virginia, up to 1753, (only twenty-three years before the revolution,) and all their descendants to the present time, were and are free; and they cannot now be distinguished from the descendants of those subsequently imported. Under the presumption—furnished by the constitution of the United States—that all are free, few or no exceptions could now be proved.
In North Carolina no general law at all was passed, prior to the revolution, declaring who might be slaves—(See Iredell's statutes, revised by Martin.)In South Carolina, the only statutes, prior to the revolution, that attempted to designate the slaves, was passed [ex post facto/bill-of-attainder style] in 1740—after slavery had for a long time existed. And even this statute, in reality, defined nothing; for the whole [vague] purport of it was, to declare that all negroes, Indians, mulattoes and mestizoes, except those who were then free, should be slaves. Inasmuch as no prior statute had ever been passed, declaring who should be slaves, all were legally free; and therefore all came within the exception in favor of free persons.*
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| or concerning any matter or thing within the provision of this act, shall be and are hereby repealed."—Hening's Statutes, vol. 6, p. 369.
No reservation being made, by this section, of rights acquired under former statutes, and slave property being a matter dependent entirely upon statute, all title to slave property, acquired under former acts, was by this act annihilated; and all the slaves in the State were made freemen, as against all prior legislation. And the slaves of the State were thenceforward held in bondage only by virtue of another section of the same act, which was in these words:
"That all persons who have been, or shall be imported into this colony, by sea or land, and were not Christians in their native country, except Turks and Moors in amity with his majesty, and such who can prove their being free in England, or any other Christian country, before they were shipped for transportation hither, shall be accounted slaves, and as such be here bought and sold, notwithstanding a conversion to Christianity after their importation."—Hening, vol. 6, p. 356-7.
The act also provided, "That all children shall be bond or free, according to the condition of their mothers and the particular directions of this act."
*The following is the preamble and the important enacting clause of this statute of 1740:
"Whereas, in his majesty's plantations in America, slavery has been introduced
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The same law, in nearly the same words, was passed in Georgia, in 1770.
These were the only general statutes, under which slaves were held in those four States, (Virginia, North Carolina, South Carolina and Georgia,) at the time of the revolution. They would all, for the reasons given, have amounted to nothing, as a foundation for the slavery now existing in those states, even if they had not been specially prohibited by their charters.
CHAPTER V.
THE DECLARATION OF INDEPENDENCE.
ADMITTING, for the sake of the argument, that prior to the revolution, slavery had a constitutional existence, (so far as it is possible that crime can have such an existence,) was it not abolished by the declaration of independence?
The declaration was certainly the constitutional law of this country for certain purposes. For example, it absolved the people from their allegiance to the English crown. It would have been so declared by the judicial tribunals of this country, if an American, during the revolutionary war, or since, had been tried for treason to the crown.
If, then, the declaration were the constitutional law of the country for that purpose, was it not also constitutional law for the purpose of recognizing and establishing, as law, the natural and inalienable right of individuals to life, liberty, and the pursuit of happiness? The lawfulness of the act of absolving
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| and allowed; and the people commonly called negroes, Indians, mulattos and mestizoes have (been) deemed absolute slaves, and the subjects of property in the hands of particular persons; the extent of whose power over such slaves ought to be settled and limited by positive laws, so that the slaves may be kept in due subjection and obedience, and the owners and other persons having the care and government of slaves, may be restrained from exercising too great rigor and cruelty over them; and that the public peace and order of this province may be preserved: Be it enacted, That all negroes, Indians, (free Indians in amity with this government, and negroes, mulattos and mestizoes, who are now free, excepted,) mulattos and mestizoes, who now are or shall hereafter be in this province, and all their issue and offspring horn or to be bom, shall be and they are hereby declared to be and remain forever hereafter absolute slaves, and shall follow the condition of th« mother," &c.—Grimké, p. 163-4. Brevard, vol. 2, p. 229.
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themselves from their allegiance to the crown, was avowed by the people of the country—and that too in the same instrument that declared the absolution—to rest entirely upon, and to be only a consequence of the natural right of all men to life, liberty, and the pursuit of happiness. If, then, the act of absolution was lawful, does it not necessarily follow that the principles that legalized the act, were also law? And if the country ratified the act of absolution, did they not also necessarily ratify and acknowledge the principles which they declared legalized the act?
It is sufficient for our purpose, if it be admitted that this principle was the law of the country at that particular time, (1776) —even though it had continued to be the law for only a year, or even a day. For if it were the law of the country even for a day, it freed every slave in the country—(if there were, as we say there were not, any legal slaves then in the country.) And the burden would then be upon the slaveholder to show that slavery had since been constitutionally established.
And to show this, he must show an express constitutional designation of the particular individuals, who have since been made slaves. Without such particular designation of the individuals to be made slaves, (and not even the present constitutions of the slave States make any such designation,) all constitutional provisions, purporting to authorize slavery, are indefinite, and uncertain in their application, and for that reason void.
Ed. Note: Examples of court precedents overturning laws pursuant to the "void for vagueness doctrine" include:
Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L Ed 2d 903 (1983);
Papachristou v City of Jackson, 405 US 156; 92 S Ct 839; 31 L Ed 2d 110 (1972);
Gooding v Wilson, 405 US 518; 92 S Ct 1103; 31 L Ed 2d 408 (1972); and
Grayned v City of Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972).
A law is "void for vagueness" when it fails to define the matter with sufficient definiteness that ordinary people can understand what is involved, thus allows arbitrary and discriminatory actions.
In essence, vague laws impermissibly delegate. They are like the Nazi "Enabling Act" (1933) delegating to Hitler authority to do whatever he pleased. Under the British and American legal systems, such vague permissions are void for vagueness.
In slavery context, any supposed slave laws were void for vagueness as they never specified in precise specific legal terms WHO would be enslaved, nor provided cause and "due prcess" (jury trial, etc.) for doing so. |
But again. The people of this country—in the very instrument by which they first announced their independent political existence, and first asserted their right to establish governments of their own—declared that the natural and inalienable right of all men to life, liberty, and the pursuit of happiness, was a "self-evident truth."
Now, all "self-evident truths," except such as may be explicitly, or by necessary implication, denied, (and no government has a right to deny any of them,) enter into, are taken for granted by, und constitute an essential part of all constitutions, compacts, and systems of government whatsoever. Otherwise it would be impossible for any systematic government to be established; for it must obviously be impossible to make an actual enumeration of all the "self-evident truths," that are to be taken into account in the administration of such a government. This is more especially true of governments founded, like ours, upon contract. It is clearly impossible, in a contract of government, to enumerate all
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the "self-evident truths" which must be acted upon in the administration of law. And therefore they are all taken for granted unless particular ones be plainly denied.
This principle, that all "self-evident truths," though not enumerated, make a part of all laws and contracts, unless clearly denied, is not only indispensable to the very existence of civil society, but it is even indispensable to the administration of justice in every individual case or suit, that may arise, out of contract or otherwise, between individuals. It would be .impossible for individuals to make contracts at all, if it were necessary for them to enumerate all the "self-evident truths," that might have a bearing upon their construction before a judicial tribunal. All such truths are therefore taken for granted. And it is the same in all compacts of government, unless particular truths are plainly denied. And governments, no more than individuals, have a right to deny them in any case. To deny, in any case, that " self-evident truths" are a part of the law, is equivalent to asserting that "self-evident falsehood" is law.
If, then, it be a "self-evident truth," that all men have a natural and inalienable right to life, liberty, and the pursuit of happiness, that truth constitutes a part of all our laws and all our constitutions, unless it have been unequivocally and authoritatively denied.
It will hereafter be shown that this "self-evident truth" has never been denied by the people of this country, in their fundamental constitution, or in any other explicit or authoritative manner. On the contrary, it has been reiterated, by them, annually, daily and hourly, for the last sixty-nine years, in almost every possible way, and in the most solemn possible manner. On the 4th of July, '76, they collectively asserted it, as their justification and authority for an act the most momentous and responsible of any in the history of the country. And this assertion has never been retracted by us as a people. We have virtually reasserted the same truth in nearly every state constitution since adopted. We have virtually reasserted it in the national constitution. It is a truth that lives on the tongues and in the hearts of all. It is true we have, in our practice, been so unjust as to withhold the benefits of this truth from a certain class of our fellow-men. But even in this respect, this truth has but shared the common fate of other truths. They are generally allowed but a partial application. Still, this truth itself, as a truth, has never been denied by us, as a people, in any authentic form, or otherwise than impliedly
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by our practice in particular cases. If it have, say when and where If it have not, it is still law; and courts are bound to administer it, as law, impartially to all.
Our courts would want no other authority than this truth, thus acknowledged, for setting at liberty any individual, other than one having negro blood, whom our governments, state or national, should assume to authorize another individual to enslave. Why then, do they not apply the same law in behalf of the African? Certainly not because it is not as much the law of his case, as of others. But it is simply because they will not.
It is because the courts are parties to an understanding, prevailing among the white race, but expressed in no authentic constitutional form, that the negro may be deprived of his rights at the pleasure of avarice and power. And they carry out this unexpressed understanding in defiance of, and suffer it to prevail over, all our constitutional principles of government—all our authentic, avowed, open and fundamental law.
CHAPTER VI.
THE STATE CONSTITUTIONS OF 1789.
OF all the state constitutions, that were in force at the adoption of the constitution of the United States, in 1789, not one of them established, or recognized slavery.
All those parts of the state constitutions, (i. e. of the old thirteen states,) that recognize and attempt to sanction slavery, have been inserted, by amendments, since the adoption of the constitution of the United States.
All the states, except Rhode Island and Connecticut, formed constitutions prior to 1789. Those two states went on, beyond this period, under their old charters.*
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| *The State Constitutions of 1789 were adopted as follows: Georgia, 1777; South Carolina, 1778; North Carolina, 1776; Virginia, 1776; Maryland, 1776; Delaware, 1776; Pennsylvania, 1776 ; New Jersey, 1776; New York, 1777 ; Massachusetts, 1780; New Hampshire, 1783.
These early Constitutions ought to be collected and published with appropriate notes.
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The eleven constitutions formed, were all democratic in their general character. The most of them eminently so. They generally recognized, in some form or other, the natural rights of men, as one of the fundamental principles of the government. Several of them asserted these rights in the most emphatic and authoritative manner. Most or all of them had also specific provisions incompatible with slavery. Not one of them had any specific recognition of the existence of slavery. Not one of them granted any specific authority for its continuance.
The only provisions or words in any of them, that could be claimed by anybody as recognitions of slavery, are the following, viz.:
1. The use of the words "our negroes" in the preamble to the constitution of Virginia.
2. The mention of "slaves" in the preamble to the constitution of Pennsylvania.
3. The provisions, in some of the constitutions, for continuing in force the laws that had previously been "in force" in the colonies, except when altered by, or incompatible with the new constitution.
4. The use, in several of the constitutions, of the words "free" and "freemen."
As each of these terms and clauses may be claimed by some persons as recognitions of slavery, they are worthy of particular notice.
1. The preamble to the frame of government of the constitution of Virginia speaks of negroes in this connexion, to wit: It charges George the Third, among other things, with "prompting our negroes to rise in arms among us, those very negroes, whom by an inhuman use of his negative, he hath refused us permission to exclude by law."
Here is no assertion that these "negroes" were slaves; but only that they were a class of people whom the Virginians did not wish to have in the state, in any capacity—whom they wished "to exclude by law." The language, considered as legal language, no more implies that they were slaves, than the charge of having prompted "our women, children, farmers, mechanics, or our people with red hair, or our people with blue eyes, or our Dutchmen, or our Irishmen to rise in arms among us," would have implied that those portions of the people of Virginia were slaves. And especially when it is considered that slavery had had no prior
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legal existence, this reference to "negroes" authorizes no legal inference whatever in regard to slavery.
The rest of the Virginia constitution is eminently democratic. The bill of rights declares "that all men are by nature equally free and independent, and have certain inherent rights," * * * "namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."
2. The preamble to the Pennsylvania constitution used the word "slaves" in this connexion. It recited that the king of Great Britain had employed against the inhabitants of that commonwealth, "foreign mercenaries, savages and slaves."
This is no acknowledgment that they themselves had any slaves of their own; much less that they were going to continue their slavery; for the constitution contained provisions plainly incompatible with that. Such, for instance, is the following, which constitutes the first article of the "Declaration of Rights of the Inhabitants," (i.e. of all the inhabitants) "of the state of Pennsylvania."
"1. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, among which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."
The 46th section of the frame of government is in these words. "The Declaration of Rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever."
Slavery was clearly impossible under these two constitutional provisions, to say nothing of others.
3. Several of the constitutions provide that all the laws of the colonies, previously "in force" should continue in force until repealed, unless repugnant to some of the principles of the constitutions themselves.
Maryland, New York, New Jersey, South Carolina, and perhaps one or two others had provisions of this character. North Carolina had none, Georgia none, Virginia none. The slave laws of these three latter states, then, necessarily fell to the ground on this change of government.
Maryland, New York, New Jersey and South Carolina had acts upon their statute books, assuming the existence of slavery, and
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pretending to legislate in regard to it; and it may perhaps be argued that those laws were continued in force under the provision referred to. But those acts do not come within the above description of "laws in force"—and for this reason, viz., the acts were originally unconstitutional and void, as being against the charters, under which they were passed; and therefore never had been legally "in force," however they might have been actually carried into execution as a matter of might, or of pretended law, by the white race.
This objection applies to the slave acts of all the colonies. None of them could be continued under this provision.— None of them, legally speaking, were "laws in force."
But in particular states there were still other reasons against the colonial slave acts being valid under the new constitutions. For instance: South Carolina had no statute (as has before been mentioned) that designated her slaves with such particularity as to distinguish them from free persons; and for that reason none of her slave statutes were legally in force."
New Jersey also was in the same situation. She had slave statutes; but [vague,] none designating the slaves so as to distinguish them from the rest of her population. She had also one or more specific provisions in her constitution incompatible with slavery, to wit: "That the common law of England * * * * * shall remain in force, until altered by a future law of the legislature; [except] such parts only as are repugnant to the rights and privileges contained in this charter." (Sec. 22.)
Maryland had also, in her new constitution, a specific provision incompatible with the acts on her colonial statute book in regard to slavery, to wit:
"Sec. 3. That the inhabitants"— mark the word, for it includes all the inhabitants—"that the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law," &c.
This guaranty, of "the common law of England" to all "the inhabitants of Maryland," without discrimination, is incompatible with any slave acts that existed on the statute book; and the latter would therefore have become void under the constitution, even if they had not been previously void under the colonial charter.
4. Several of these state constitutions have used the words "free" and "freemen."
For instance: That of South Carolina provided, (Sec. 13,)
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that the electors of that state should be "free white men." That of Georgia (Art. 11,) and that of North Carolina (Art. 40,) uses the term "free citizen." That of Pennsylvania (Se3. 42,) has the term "free denizen."
These four instances are the only ones I have found in all the eleven constitutions, where any class of persons are designated by the term "free." And it will be seen hereafter, from the connexion and manner in which the word is used, in these four cases, that it implies no recognition of slavery.
Several of the constitutions, to wit, those of Georgia, South Carolina, North Carolina, Maryland, Delaware, Pennsylvania, New York—but not Virginia, New Jersey, Massachusetts or New Hampshire—repeatedly use the word "freeman" or "freemen," when describing the electors, or other members of the state.
The only questions that can arise from the use of these words "free" and "freeman," are these, viz.: Are they used as the correlatives, or opposites of slaves? Or are they used in that political sense, in which they are used in the common law of England, and in which they had been used in the colonial charters, viz., to describe those persons possessed of the privilege of citizenship, or some corporate franchise, as distinguished from aliens, and those not enjoying franchises, although free from personal slavery?
If it be answered, that they are used in the sense first mentioned, to wit, as the correlatives or opposites of slavery—then it would be argued that they involved a recognition, at least, of the existence of slavery.
But this argument—whatever it might be worth to support an implied admission of the actual existence of slavery—would be entirely insufficient to support an implied admission either of its legal, or its continued existence. Slavery is so entirely contrary to natural right; so entirely destitute of authority from natural law; so palpably inconsistent with all the legitimate objects of government, that nothing but express and explicit provision can be recognized, in law, as giving it any sanction.
No hints, insinuations, or unnecessary implications can give any ground for so glaring a departure from, and violation of all the other, the general and the legitimate principles of the government. If, then, it were admitted that the words "free" and "freemen" were used as the correlatives of slaves, still, of themselves, the words would give no direct or sufficient authority for laws establishing or continuing slavery. To call one man free, gives no legal authority for mak-
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ing another man a slave. And if, as in the case of these constitutions, no express authority for slavery were given, slavery would be as much unconstitutional as though these words had not been used. The use of these words in that sense, in a constitution, under which all persons are presumed to be free, would involve no absurdity, although it might be gratuitous and unnecessary.
It is a rule of law, in the construction of all statutes, contracts and legal instruments whatsoever—that, is, those which courts design, not to invalidate, but to enforce—that where words are susceptible of two meanings, one consistent, and the other inconsistent, with liberty, justice and right, that sense is always to be adopted, which is consistent with right, unless there be something in other parts of the instrument sufficient to prove that the other is the true meaning.
In the case of no one of all these early state constitutions, is there anything in the other parts of them, to show that these words "free" and "freemen" are used as the correlatives of slavery. The rule of law, therefore, is imperative, that they must be regarded in the sense consistent with liberty and right.
If this rule, that requires courts to give an innocent construction to all words that are susceptible of it, were not imperative, courts might, at their own pleasure, pervert the honest meaning of the most honest statutes and contracts, into something dishonest, for there are almost always words used in the most honest legislation, and in the most honest contracts, that, by implication or otherwise, are capable of conveying more than one meaning, and even a dishonest meaning. If courts could lawfully depart from the rule, that requires them to attribute an honest meaning to all language that is susceptible of such a meaning, it would be nearly impossible to frame either a statute or a contract, which the judiciary might not lawfully pervert to some purpose of injustice. There would obviously be no security for the honest administration of any honest law or contract whatsoever.
This rule applies as well to constitutions as to contracts and statutes; for constitutions are but contracts between the people, whereby they grant authority to, and establish law for the government.
What other meaning, then, than as correlatives of slavery, are the words "free" and "freemen" susceptible of, as they are used in the early state constitutions?
Among the definitions given by Noah Webster [1758-1843] are these:
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"Freeman. One who enjoys, or is entitled to a franchise or peculiar privilege; as the freemen of a city or state."
"Free. Invested with franchises; enjoying certain immunities: with of— as a man free of the city of London."
"Possessing without vassalage, or slavish conditions; as a man free of his farm."
In England, and in the English law throughout, as it existed before and since the emigration of our ancestors to this country, the words "free" and "freemen" were political terms in the most common use; and employed to designate persons enjoying some franchise or privilege, from the most important one of general citizenship in the nation, to the most insignificant one in any incorporated city, town or company. For instance: A man was said to be a "free British subject"—meaning thereby that he was a naturalized or native born citizen of the British government, as distinguished from an alien, or person neither naturalized nor native born.
Again. A man was said to be "free of a particular trade in the city of London"—meaning thereby, that by the bye-laws of the city of London, he was permitted to follow that trade — a privilege which others could not have without having served an apprenticeship in the city, or having purchased the privilege of the city government.
The terms "free" and "freemen" were used with reference to a great variety of privileges, which, in England, were granted to one man, and not to another. Thus members of incorporated companies were called "freemen of the company," or "free members of the company," and were said to be "free of the said company." The citizens of an incorporated city were called "the freemen of the city," as "freemen of the city of London."
In Jacobs' Law Dictionary the following definitions, among others, are given of the word "freeman."
"Freeman—liber homo." * * * "In the distinction of a freeman from a vassal under the feudal policy, liber homo was commonly opposed to vassus, or vassalus; the former denoting an allodial proprietor; the latter one who held of a superior."
"The title of a freeman is also given to any one admitted to the freedom of a corporate town, or of any other corporate body, consisting, among other members, of those called freemen."
"There are three ways to be a freeman of London; by servitude of an apprenticeship; by birthright, as being the son of a
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freeman; and by redemption, i.e. by purchase, under an order of the court of aldermen."
"The customs of the city of London shall be tried by the certificate of the Mayor and Aldermen, * * * as the custom of distributing the effects of freemen deceased: of enrolling apprentices, or that he who is free of one trade may use another."
"Elections of aldermen and common-councilmen are to be by freemen householders."
"An agreement on marriage, that the husband shall take up the freedom of London, binds the distribution of the effects."
The foregoing and other illustrations of the use of the words "free" and "freemen," may be found in Jacob's Law Dictionary, under the head of Freeman, London, &c.
And this use of these words has been common in the English laws for centuries. The term "freeman" is used in Magna Charta, (1215). The English statutes abound with the terms, in reference to almost every franchise or peculiar privilege, from the highest to the lowest, known to the English laws. It would be perfectly proper, and in consonance with the legal meaning and common understanding of the term, to say of [Queen] Victoria [1819-1901], that "she is free of the throne of England," and of a cobbler, that he "is free of his trade in the city of London."
But the more common and important signification of the words is to designate the citizens, native or naturalized, and those specially entitled, as a matter of political and acknowledged right, to participate in, or be protected by the government, as distinguished from aliens, or persons attainted, or deprived of their political privileges as members of the state. Thus they use the term "free British subject"—"freeman of the realm," &c. In short, the terms, when used in political papers, have a meaning very nearly, if not entirely synonymous, with that which we, in this country, now give to the word citizen.
But throughout the English law, and among all the variety of ways, in which the words "free" and "freemen" are used, as legal terms, they are never used as the correlatives, or opposites of slaves or slavery—and for the reason that they have in England no such persons or institutions, known to their laws, as slaves or slavery. The use of the words "free" and "freemen," therefore, do not in England at all imply the existence of slaves or slavery.
This use of the words "free" and "freemen," which is common to the English law, was introduced into this country at its first set-
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tlement, in all, or very nearly all the colonial charters, patents, &c., and continued in use, in this sense, until the time of the revolution; and, of course, until the adoption of the first state constitutions.*
The persons and companies, to whom the colonial charters were granted, and those who were afterwards to be admitted as their associates, were described as "freemen of said colony," "freemen of said province," "freemen of said company," "freemen of the said company and body politick," &c. (See charter of Rhode Island.)
Many, if not all the charters had a provision similar in substance to the following in the charter to Rhode Island, viz.:
"That all and every the subjects of us, our heirs and successors," (i.e. of the king of England granting the charter,) "which are already planted and settled within our said colony of Providence Plantations, or which shall hereafter go to inhabit within the said colony, and all and every of their children which have been born there, or which shall happen hereafter to be born there, or on the sea going thither, or returning from thence, shall have and enjoy all liberties and immunities of free and natural subjects, within any of the dominions of us, our heirs and successors, to all intents, constructions and purposes whatsoever, as if they and every of them were born within the realm of England."
The following enactment of William Penn, as proprietary and Governor of the Province of Pennsylvania and its territories, illustrates one of the common uses of the word "freeman," as known to the English law, and as used in this country prior to the revolution—that is, as distinguishing a native born citizen, and one capable of holding real estate, &c., from a foreigner, not naturalized, and on that account subject to certain disabilities, such as being incompetent to hold real estate.
"And forasmuch as it is apparent that the just encouragement of the inhabitants of the province, and territories thereunto belonging, is likely to be an effectual way for the improvement thereof; and since some of the people that live therein and are likely to come thereunto, are foreigners, and so not freemen, according to the acceptation of the laws of England, the consequences of which may prove very detrimental to them in their estates and traffic,
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| *Since that time the words "free" and "freemen" have been gradually falling into disuse, and the word citizen been substituted — doubtless for the reason that it is not pleasant to our pride or our humanity to use words, one of whose significations serves to suggest a contrast between ourselves and slaves.
|
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and so injurious to the prosperity of this province and territories thereof.
"Be it enacted, by the proprietary and governor of the province and counties aforesaid, by and with the advice and consent of the deputies of the freemen thereof, in assembly met, That all persons who are strangers and foreigners, that do now inhabit this province and counties aforesaid, that hold land in fee in the same, according to the law of a freeman, and who shall solemnly promise, within three months after the publication thereof, in their respective county courts where they live, upon record, faith and allegiance to the king of England and his heirs and successors, and fidelity and lawful obedience to the said William Penn, proprietary and governor of the said province and territories, and his heirs and assigns, according to the king's letters patents and deed aforesaid, shall be held and reputed freemen of the province and counties aforesaid, in as ample and full a manner as any person residing therein.
"And it is hereby further enacted, by the authority aforesaid, That when at any time any person, that is a foreigner, shall make his request to the proprietary and governor of this province and territories thereof, for the aforesaid freedom, the said person shall be admitted on the conditions herein expressed, paying at his admission twenty shillings sterling, and no more, anything in this law, or any other law, act, or thing in this province, to the contrary in any wise notwithstanding."
"Given at Chester," &c., "under the hand and broad seal of William Penn, proprietary and governor of this province and territories thereunto belonging, in the second year of his government, by the king's authority.
W. PENN."*
Up to the time of our revolution, the only meaning which the words "free" and "freemen" had, in the English law, in the charters granted to the colonies, and in the important documents of a political character, when used to designate one person as distinguished from another, was to designate a person enjoying some franchise or privilege, as distinguished from aliens or persons not enjoying a similar franchise. They were never used to designate a free person as distinguished from a slave—for the very sufficient reason that all these fundamental laws presumed that there were no slaves.
Was such the meaning of the words "free" and "freemen," as used in the constitutions adopted prior to 1789, in the States of Georgia, North and South Carolina, Maryland, Delaware and New York?
The legal rule of interpretation before mentioned, viz., that an innocent meaning must be given to all words that are susceptible
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| *Dallas' edition of the Laws of Pennsylvania, vol. 1, Appendix, page 25.
|
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of it—would compel us to give the words this meaning, instead of a meaning merely correlative with slavery, even if we had no other ground than the rule alone, for so doing. But we have other grounds. For instance:—Several of these constitutions have themselves explicitly given to the words this meaning. While not one of them has given them a meaning correlative with slaves, inasmuch as none of them purport either to establish, authorize, or even to know of the existence of slavery.
The constitution of Georgia (adopted in 1777) evidently uses the word "free" in this sense, in the following article:
"Art. 11. No person shall be entitled to more than one vote, which shall be given in the county where such person resides, except as before excepted; nor shall any person who holds any title of nobility, be entitled to a vote, or be capable of serving as a representative, or hold any post of honor, profit or trust, in this State, while such person claims his title of nobility; but if the person shall give up such distinction, in the manner as may be directed by any future legislature, then, and in such case, he shall be entitled to a vote, and represent, as before directed, and enjoy all the other benefits of a FREE citizen."
The constitution of North Carolina, (adopted in 1776,) used the word in a similar sense, as follows:
"40. That every foreigner, who comes to settle in this State, having first taken an oath of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate, and after one year's residence be deemed a FREE citizen."
This constitution also repeatedly uses the word "freeman;" meaning thereby " a free citizen," as thus defined.
The constitution of Pennsylvania, (adopted in 1776,) uses the word in the same sense:
"Sec. 42. Every foreigner, of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold and transfer land or other real estate; and after one year's residence, shall be deemed a FREE denizen thereof, and entitled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two years' residence."
The constitution of New York, (adopted in 1777,) uses the word in the same manner:
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"Sec. 6. That every male inhabitant of full age, who has personally resided in one of the counties of this State for six months, immediately preceding the day of election, shall at such election be entitled to vote for representatives of the said county in assemb1y, if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds, within the said county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State. Provided always, That every person who now is a freeman of the city of Albany, or who was made a freeman of the city of New York, on or before the fourteenth day of October, in the year of our Lord one thousand seven hundred and seventy-five, and shall be actually and usually resident in the said cities respectively, shall be entitled to vote for representatives in assembly within his place of residence."
The constitution of South Carolina, (formed in 1778.) uses the word "free" in a sense which may, at first thought, be supposed to be different from that in which it is used in the preceding cases:
Sec. 13. The qualification of electors shall be that "every free white man, and no other person," &c., "shall be deemed a person qualified to vote for, and shall be capable of being elected a representative."
It may be supposed that here the word "free" is used as the correlative of slavery; that it presumes the "whites" to be "free;" and that it therefore implies that other persons than "white" may be slaves. Not so. No other parts of the constitution authorize such an inference; and the implication from the words themselves dearly is, that some "white" persons might not be " free." The distinction implied is between those "white" persons that were "free," and those that were not "free." If this were not the distinction intended, and if all "white" persons were "free," it would have been sufficient to have designated the electors simply as "white" persons, instead of designating them as both "free" and "white." If, therefore, it were admitted that the word "free," in this instance, were used as the correlative of slaves, the implication would be that some "white" persons were, or might be slaves. There is, therefore, no alternative but to give the word "free," in this instance, the same meaning that it has in the constitutions of Georgia, North Carolina and Pennsylvania.
In 1704 South Carolina passed an act entitled, "An act for making aliens FREE of this part of the Province." This statute
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remained in force until 1784, when it was repealed by an act entitled "An act to confer the right of citizenship on aliens."*
One more example of this use of the word "freeman." The constitution of Connecticut, adopted as late as 1818, had this provision:
"Art. 6, Sec. 1. All persons who have been, or shall hereafter, previous to the ratification of this constitution, be admitted freemen, according to the existing laws of this State, shall be electors."
Surely no other proof can be necessary of the meaning of the words "free" and "freeman," as used in the constitutions existing in 1789; or that the use of those words furnish no implication in support of either the existence, or the constitutionality of slavery, prior to the adoption of the constitution of the United States in that year.
I have found, in none of the State constitutions before mentioned, (existing in 1789,) any other evidence or intimation of the existence of slavery, than that already commented upon and refuted. And if there be no other, then it is clear that slavery had no legal existence under them. And there was consequently no constitutional slavery in the country up to the adoption of the constitution of the United States.
Ed. Note: You may occasionally see claims that the 1861-1865 War concerned "states' rights." Impossible, as all states, North and South, had "free" constitutions, i.e., had rights clauses, e.g., due process, jury trials, habeas corpus, etc.
When someone tells you, people during that war said it concerned "states' rights," check who is being quoted: is it someone who has studied the subject? or someone merely defending his own conduct? thus biased?
And ask, which state right was violated? The right to select Presidential Electors? To right to send Representatives to Congress? Senators to the Senate? What?! These relate to actual clauses in the Constitution.
Since no state right was violated, none was then, and none can now be, identified. |
CHAPTER VII.
THE ARTICLES OF CONFEDERATION.
THE Articles of Confederation, (formed in 1778,) contained no recognition of slavery. The only words in them, that could be claimed by anybody as recognizing slavery, are the following, in Art. 4, Sec. 1.
"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of
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| *Cooper's edition of the Laws of South Carolina, vols 2 and 4. "Aliens."
|
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trade and commerce, subject to the same duties impositions and restrictions, as the inhabitants thereof respectively."
There are several reasons why this provision contains no legal recognition of slavery.
1. The true meaning of the word "free," as used in the English law, in the colonial charters, and in the State constitutions up to this time, when applied to persons, was to describe citizens, or persons possessed of franchises, as distinguished from aliens or persons not possessed of the same franchises. Usage, then, would give this meaning to the word "free" in this section.
2. The rules of law require that an innocent meaning should be given to all words that will bear an innocent meaning.
3. The Confederation was a league between States in their corporate capacity; and not, like the constitution, a government established by the people in their individual character. The Confederation, then, being a league between states or corporations, as such, of course recognized nothing in the character of the State governments except what their corporate charters or State constitutions authorized. And as none of the State constitutions of the day recognized slavery, the confederation of the State governments could not of course recognize it. Certainly none of its language can, consistently with legal rules, have such a meaning given to it, when it is susceptible of another that perfectly accords with the sense in which it is used in the constitutions of the States, that were parties to the league.
4. No other meaning can be given to the word "free" in this case, without making the sentence an absurd, or, at least, a foolish and inconsistent one. For instance,— The word "free" is joined to the word "citizen." What reason could there be in applying the term "free" to the word "citizen," if the word "free" were used as the correlative of slavery? Such an use of the word would imply that some of the "citizens" were, or might be slaves—which would be an absurdity. But used in the other sense, it implies only that some citizens had franchises not enjoyed by others; such, perhaps, as the right of suffrage, and the right of being elected to office; which franchises were only enjoyed by a part of the "citizens." All who were born of English parents, for instance, were "citizens," and entitled to the protection of the government, and freedom of trade and occupation, &c., &c., and in these respects were distinguished from aliens. Yet a property qualification was necessary, in some, if not all the States, to en-
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title even such to the franchises of suffrage, and of eligibility to office.
The terms "free inhabitants" and "people" were probably used as synonymous either with "free citizens," or with "citizens" not "free"—that is, not possessing the franchises of suffrage and eligibility to office.
Mr. Madison, in the 42d No. of the Federalist, in commenting upon the power given to the general government by the new constitution, of naturalizing aliens, refers to this clause in the Articles of Confederation; and takes it for granted that the word "free" was used in that political sense, in which I have supposed it to be used—that is, as distinguishing "citizens" and the "inhabitants" or "people" proper, from aliens and persons not allowed the franchises enjoyed by the "inhabitants" and "people" of the States. Even the privilege of residence he assumes to be a franchise entitling one to the denomination of "free."
He says: "The dissimilarity in the rules of naturalization," (i. e. in the rules established by the separate States, for under the confederation each State established its own rules of naturalization,) "has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of confederation, it is declared, "that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce,' &c.
"There is a confusion of language here, which is remarkable. Why the terms free inhabitants are used in one part of the article, free citizens in another, and people in another; or what was meant by superadding to 'all privileges and immunities of free citizens,' 'all the privileges of trade and commerce' cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is to greater privileges than they may be entitled to in their own State; so that it may be in the power of a particular State, or rather every State is laid under the necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction.
"But were an exposition of the term 'inhabitant' to be admitted, which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every
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other State. In one State, residence for a short time confers all the rights of citizenship; in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity, and thus the law of one State be preposterously rendered paramount to the laws of another, within the jurisdiction of the other.
"We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent, not only with the rights of citizenship, but with the privileges of residence. What would have been the consequence, if such persons, by residence, or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted of too serious a nature, not to be provided against. The new constitution has, accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the confederation on this head, by authorizing the general government to establish an uniform rule of naturalization throughout the United States."
Throughout this whole quotation Mr. Madison obviously takes it for granted that the word "free" is used in the articles of confederation, as the correlative of aliens. And in this respect he no doubt correctly represents the meaning then given to the word by the people of the United States. And in the closing sentence of the quotation, he virtually asserts that such is the meaning of the word "free" in "the new constitution."
CHAPTER VIII.THE CONSTITUTION OF THE UNITED STATES.
We come now to the period commencing with the adoption of the constitution of the United States.
We have already seen that slavery had not been authorized or established by any of the fundamental constitutions or charters that had existed previous to this time; that it had always been a mere abuse sustained by the common consent of the strongest party, in defiance of the avowed constitutional principles of their
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governments. And the question now is, whether it was constitutionally established, authorized or sanctioned by the constitution of the United Slates?
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 surplusage—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.
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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," "anything 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
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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 anything. 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
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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 dealings 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 anything 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 consti-
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tution, 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 anything contrary to natural right. The rule of law is materially different as to the terms necessary to legalize and sanction anything contrary to natural right, and those necessary to legalize things that are consistent with natural right. The latter may be sanctioned by natural 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 anything 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 innuendo and double entendre, and under a name that entirely fails of describing the thing.
Everybody 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.
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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 innuendo 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, innuendos 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
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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. Everybody 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 meam 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?
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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 anything 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 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 lan-
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guage 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 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 laws 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, [6 US 358;] 2 Cranch, 390 [; 2 L Ed 304, 314 (1804)].)* |
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 anything inconsistent with natural justice.†
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*This language of the Supreme Court contains an admission of the truth of the charge just made against judges, viz., that rather than lose their offices, they will violate what they know to be law, in subserviency to the legislatures on whom they depend; for it admits, 1st, that the preservation of men's rights is the vital principle of law, and, 2d, that courts (and the Supreme Court of the United States in particular) will trample upon that principle at the bidding of the legislature, when the mandate comes in the shape of a statute of such "irresistible clearness" that its meaning cannot be evaded.
"Laws are construed strictly to save a right."— Whitney et al. vs. Emmett, et a1., 1 Baldwin, C. C. R. 316.
"No law will make a construction to do wrong; and there are some things which the law favors, and some it dislikes; it favoreth those things that come from the order of nature.—Jacob's Law Dictionary, title Law.
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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 should 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
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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." [U.S. v Fisher, supra, [6 US 358, 390; 2 L Ed 304, 314 (1804)].
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
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the government, as it is that they should be restrained ftom 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 beep 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 the 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." [Art. I., § 8.3]
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
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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 accessory 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 everything, 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." |
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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.*
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