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+Project Gutenberg's The Unconstitutionality of Slavery, by Lysander Spooner
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: The Unconstitutionality of Slavery
+
+Author: Lysander Spooner
+
+Release Date: March 31, 2010 [EBook #31844]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK THE UNCONSTITUTIONALITY OF SLAVERY ***
+
+
+
+
+Produced by Curtis Weyant, Graeme Mackreth and the Online
+Distributed Proofreading Team at https://www.pgdp.net (This
+book was produced from scanned images of public domain
+material from the Google Print project.)
+
+
+
+
+
+
+
+THE
+
+UNCONSTITUTIONALITY
+
+OF
+
+SLAVERY.
+
+BY LYSANDER SPOONER.
+
+BOSTON:
+
+PUBLISHED BY BELA MARSH,
+
+NO. 25 CORNHILL.
+
+1845.
+
+
+ENTERED according to Act of Congress, in the year 1845, by LYSANDER
+SPOONER, in the Clerk's Office of the District Court of Massachusetts.
+
+
+DOW & JACKSON'S ANTI-SLAVERY PRESS.
+
+
+
+
+CONTENTS.
+
+
+CHAPTER I.--WHAT IS LAW?                              PAGE 5
+
+   "   II.--WRITTEN CONSTITUTIONS,                        18
+
+   "  III.--THE COLONIAL CHARTERS,                        24
+
+   "   IV.--COLONIAL STATUTES,                            36
+
+   "    V.--THE DECLARATION OF INDEPENDENCE,              42
+
+   "   VI.--THE STATE CONSTITUTIONS OF 1789.
+              (MEANING OF THE WORD "FREE,")               46
+
+   "  VII.--THE ARTICLES OF CONFEDERATION,                61
+
+   " VIII.--THE CONSTITUTION OF THE UNITED STATES,        65
+
+   "   IX.--THE INTENTIONS OF THE CONVENTION,            135
+
+   "    X.--THE PRACTICE OF THE GOVERNMENT,              145
+
+   "   XI.--THE UNDERSTANDING OF THE PEOPLE,             147
+
+   "  XII.--THE STATE CONSTITUTIONS OF 1845,             150
+
+   " XIII.--THE CHILDREN OF SLAVES ARE BORN FREE,        153
+
+
+
+
+THE
+UNCONSTITUTIONALITY OF SLAVERY.
+
+
+
+
+CHAPTER I.
+
+WHAT IS LAW?
+
+
+Before examining the language of the Constitution, in regard to Slavery,
+let us obtain a view of the principles, by virtue of which _law_ arises
+out of those constitutions and compacts, by which people agree to
+establish government.
+
+To do this it is necessary to define the term _law_. Popular opinions
+are very loose and indefinite, both as to the true 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 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 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 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 any body 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.[1]
+
+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 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 established 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 any thing, 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 authorize, (if any of them do authorize,) any
+thing in violation of natural justice, or the natural 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 every where 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
+obedience, 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 any thing, 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.
+
+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 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
+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, 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, 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, can arise
+out of any contract or compact 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_; 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.
+
+Though this doctrine may make sad havoc with constitutions and statute
+books, it is nevertheless law. It fixes and determines the real rights
+of all men; and its demands are as imperious as any that can exist under
+the name of law.
+
+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.[2]
+
+[Footnote 1: 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.]
+
+[Footnote 2: 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 every where, 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._
+
+"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._
+
+"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 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 naturę 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 reason why Blackstone admitted
+that he knew of no power in the ordinary forms of the (British)
+constitution, that was vested with authority to control an act of
+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 State's 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. 1, 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, 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. 1, 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 laws
+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
+discernment to 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._
+
+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; 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 particular cases; and the
+guardian principle being once broken down, nothing can then stay the
+irruption of the whole horde of pretexts for doing injustice; and
+government 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 his rights
+in order that government may protect the remainder. Let a man have the
+use of both 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 bargain 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 every thing, 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 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
+develope 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 developement
+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.]
+
+
+
+
+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 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 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 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
+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."[3]
+
+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.
+
+[Footnote 3: United States _vs._ Fisher, 2 Cranch, 390.]
+
+
+
+
+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 prevailed 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."[4]
+
+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 state 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.[5]
+
+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 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.
+
+This decision was given in the year 1772.[6] And for aught I see, it 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.
+
+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-trade_ at 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 any where; 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 any where 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 any where, if they had attempted to do
+so.[7] 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
+that coast of Africa_, to allow slavery under 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 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 decision 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.[8]
+
+The conclusion of the whole matter is, that until some reason appears
+against them, we are bound by the decision of the King's bench in 1772,
+and the colonial charters. That decision declared that there was, at
+that time, in England, no right of property in man, (notwithstanding
+the English government had for a long time connived at the slave
+trade.)--The colonial charters required the legislation of the colonies
+to be consonant to reason, and not repugnant or contrary, but
+conformable, or agreeable, as nearly as circumstances would allow, to
+the laws, statutes and rights of the realm of England. That decision,
+then, if correct, settled the 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.
+
+[Footnote 4: 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."
+
+The charter granted to Sir Edward Plowden had this proviso. "So,
+nevertheless, that the laws aforesaid be 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,
+ordain 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.]
+
+[Footnote 5: In the case of the town of Pawlet _v._ Clark and others,
+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 and privileges._ _A fortiori_ the principle applies
+to a royal province."--(9 Cranch's U. State's Reports, 332-3.)]
+
+[Footnote 6: 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.]
+
+[Footnote 7: 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?]
+
+[Footnote 8: Mr. Bancroft, 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 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
+"1795, 8 and 10 Wm. 3, ch. 26." (Should be 1797, 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 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 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 emigrants, 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 necessary
+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 render 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 perfectly
+clear, as a _legal_ proposition, that the statute legalized neither
+slavery in the plantations and colonies, nor the slave trade from Africa
+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. &.,
+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 be lawful to and for any of the
+subjects of his majesty's realms of England, as well as the said
+Company,(The Royal African Company) to trade from England or any of his
+majesty's plantations or colonies 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 merchandizes to be exported from
+England or any of his majesty's plantations 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, redwood 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 deputy-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,(The Royal African 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 be 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 in reality it did not legalize,) the
+slave trade during those thirteen years, it would be impossible now to
+distinguish the descendants 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 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. Bancroft 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 enterprize was removed,
+and the ports of Africa were laid open to English competition, for 'the
+_slave_ trade,'--such" (says Mr. Bancroft,) "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. Bancroft
+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 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 any thing
+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 20th 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 29th section contains a special
+prohibition to individuals, under penalty, to do so, no one can pretend
+that the trade was legalized. If the penalty had been but one pound,
+instead of one hundred pounds, it would have been sufficient, _in law_,
+to have 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 it
+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
+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 28th 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 any where, except upon the coast of Africa.
+Had slavery been positively and 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 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.]
+
+
+
+
+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 was the doctrine of the King's Bench in
+Somerset's case, as it is the doctrine of common sense. Lord Mansfield
+said, "So high an act of dominion must be recognized by the law of the
+country where it is used.* * * * The state of slavery is of such a
+nature, that it is incapable of being introduced on any reasons, moral
+or political--but only positive law, which preserves its force long
+after the reasons, 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.
+
+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 baptise their slaves,[9]
+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 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."[10]
+
+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.[11]
+
+In 1776, the only statute in Virginia, under which the slaveholders
+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.[12]
+
+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 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 in 1740--after slavery had
+for a long time existed. And even this statute, in reality, defined
+nothing; for the whole 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.[13]
+
+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.
+
+[Footnote 9: "_Chastised._" 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._
+
+"_Baptised._" 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
+baptised. But that notwithstanding such slave or slaves shall receive
+and profess the Christian religion, and be baptised, he or they shall
+not thereby be manumitted or set free, or his or their owner, master or
+mistress lose his or their civil right, property and authority over such
+slave or slaves, but that the slave or slaves, with respect to his or
+their servitude, shall remain and continue in the same state and
+condition, that he or they was in before the making of this
+act."--_Grimke, p. 18. Brevard, vol. 2, p. 229._
+
+In 1667, the following statute was passed in Virginia:
+
+"Whereas, some doubts have arisen whether children that are slaves by
+birth, and by the charity and piety of their owners made 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 confering 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 endeavor 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._]
+
+[Footnote 10: Hening, vol. 2, p. 283.]
+
+[Footnote 11: Hening, vol. 5, p. 547-8.]
+
+[Footnote 12: 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 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."]
+
+[Footnote 13: 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 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 vigor 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 born or
+to be born, shall be and they are hereby declared to be and remain
+forever hereafter absolute slaves, and shall follow the condition of the
+mother," &c.--_Grimke, p. 163-4. Brevard, vol. 2, p. 229._]
+
+
+
+
+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 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 only for 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.
+
+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, and 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 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
+re-asserted the same truth in nearly every state constitution since
+adopted. We have virtually re-asserted 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 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.[14]
+
+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
+any body 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
+_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.
+
+2. 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 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
+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; 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,) that the
+electors of that state should be "_free_ white men." That of Georgia
+(Art. 11,) and that of North Carolina (Art. 40,) use the term "free
+citizen." That of Pennsylvania (Sec. 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
+making 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 any
+thing 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 are these:
+
+"_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 Jacob's Law Dictionary the following definitions, among others, are
+given of the word "freemen."
+
+"_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 _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
+Victoria, 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 settlement,
+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.[15]
+
+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,"
+"freeman 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_, 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, any thing 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."[16]
+
+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 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 have 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 year's residence."
+
+The constitution of New York, (adopted in 1777,) uses the word in the
+same manner:
+
+   "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 assembly,
+   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 clearly 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 to 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 remained in
+force until 1784, when it was repealed by an act entitled "_An act to
+confer the right of citizenship on aliens_"[17]
+
+One more example of this use of the word "_freeman_." The constitution
+of Connecticut, adopted as late as 1818, has 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.
+
+[Footnote 14: 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.]
+
+[Footnote 15: 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.]
+
+[Footnote 16: Dallas's edition of the Laws of Pennsylvania, vol. 1,
+Appendix, page 25.]
+
+[Footnote 17: Cooper's edition of the Laws of South Carolina, vols. 2
+and 4. "Aliens,"]
+
+
+
+
+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
+any body 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 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
+entitle 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 other state. In one state,
+   residence for a short time confers all the rights of citizenship; in
+   another, qualifications of greater importance are required. An alien,
+   therefore, legally incapacitated for certain rights in the latter,
+   may, by previous residence only in the former, elude his incapacity,
+   and thus the law of one state be preposterously rendered paramount to
+   the laws of another, within the jurisdiction of the other.
+
+   "We owe it to mere casualty, that very serious embarrassments on this
+   subject have been hitherto escaped. By the laws of several states,
+   certain description of aliens, who had rendered themselves obnoxious,
+   were laid under interdicts inconsistent, not only with the rights of
+   citizenship, but with the privileges of residence. What would have
+   been the consequence, if such persons, by residence, or otherwise,
+   had acquired the character of citizens under the laws of another
+   state, and then asserted their rights as such, both to residence and
+   citizenship, within the state proscribing them? Whatever the legal
+   consequences might have been, other consequences would probably have
+   resulted of too serious a nature, not to be provided against. The new
+   constitution has accordingly, with great propriety, made provision
+   against them, and all others proceeding from the defect of the
+   confederation on this head, by authorizing the general government to
+   establish an uniform rule of naturalization throughout the United
+   States."
+
+Throughout this whole quotation Mr. Madison obviously takes it for
+granted that the word "free" is used in the articles of confederation,
+as the correlative of aliens.--And in this respect he no doubt correctly
+represents the meaning then given to the word by the people of the
+United States. And in the closing sentence of the quotation, he
+virtually asserts that such is the meaning of the word "free" in "the
+new constitution."
+
+
+
+
+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 governments. And the question now is,
+whether it was constitutionally established, authorized or sanctioned by
+the constitution of the United States?
+
+It is perfectly clear, in the first place, that the constitution of the
+United States did not, _of itself, create or establish_ slavery as a
+_new_ institution; or even give any authority to the state governments
+to establish it as a new institution.--The greatest sticklers for
+slavery do not claim this. The most they claim is, that it recognized it
+as an institution already legally existing, under the authority of the
+state governments; and that it virtually guarantied to the states the
+right of continuing it in existence during their pleasure. And this is
+really the only question arising out of the constitution of the United
+States on this subject, viz: whether it _did_ thus recognize and
+sanction slavery as an _existing_ institution?
+
+This question is, in reality, answered in the negative by what has
+already been shown; for if slavery had no constitutional existence,
+under the state constitutions, prior to the adoption of the constitution
+of the United States, then it is absolutely certain that the
+constitution of the United States did _not_ recognize it as a
+constitutional institution; for it cannot, of course, be pretended that
+the United States constitution recognized, as constitutional, any state
+institution that did not constitutionally exist.
+
+Even if the constitution of the United States had _intended_ to
+recognize slavery, as a constitutional _state_ institution, such
+intended recognition would have failed of effect, and been legally void,
+because slavery then had no constitutional existence to be recognized.
+
+Suppose, for an illustration of this principle, that the constitution of
+the United States had, by implication, plainly taken it for granted that
+the state legislatures had power--derived from the _state_
+constitutions--to order arbitrarily that infant children, or that men
+without the charge of crime, should be maimed--deprived, for instance,
+of a hand, a foot, or an eye. This intended recognition, on the part of
+the constitution of the United States, of the legality of such a
+practice, would obviously have failed of all legal effect--would have
+been mere surplussage--if it should appear, from an examination of the
+state constitutions themselves, that they had really conferred no such
+power upon the legislatures. And this principle applies with the same
+force to laws that would arbitrarily make men or children slaves, as to
+laws that should arbitrarily order them to be maimed or murdered.
+
+We might here safely rest the whole question--for no one, as has already
+been said, pretends that the constitution of the United States, by its
+own authority, created or authorized slavery as a new institution; but
+only that it intended to recognize it as one already established by
+authority of the state constitutions. This intended recognition--if
+there were any such--being founded on an error as to what the state
+constitutions really did authorize, necessarily falls to the ground, a
+defunct intention.
+
+We make a stand, then, at this point, and insist that the main
+question--the only material question--is already decided against
+slavery; and that it is of no consequence what recognition or sanction
+the constitution of the United States may have intended to extend to it.
+
+The constitution of the United States, at its adoption, certainly took
+effect upon, and made citizens of _all_ "the people of the United
+States," who were _not slaves_ under the state constitutions. No one can
+deny a proposition so self-evident as that. If, then, the _State_
+constitutions, then existing, authorized no slavery at all, the
+constitution of the United States took effect upon, and made citizens of
+_all_ "the people of the United States," without discrimination. And if
+_all_ "the people of the United States" were made citizens of the United
+States, by the United States constitution, at its adoption, it was then
+forever too late for the _state_ governments to reduce any of them to
+slavery. They were thenceforth citizens of a higher government, under a
+constitution that was "the supreme law of the land," "any thing in the
+constitution or laws of the states to the contrary notwithstanding." If
+the state governments could enslave citizens of the United States, the
+state constitutions, and not the constitution of the United States,
+would be the "supreme law of the land"--for no higher act of supremacy
+could be exercised by one government over another, than that of taking
+the citizens of the latter out of the protection of their government,
+and reducing them to slavery.
+
+
+SECONDLY.
+
+Although we might stop--we yet do not choose to stop--at the point last
+suggested. We will now go further, and attempt to show, specifically
+from its provisions, that the constitution of the United States, not
+only does not recognize or sanction slavery, as a legal institution, but
+that, on the contrary, it presumes all men to be free; that it
+positively denies the right of property in man; and that it, _of
+itself_, makes it impossible for slavery to have a legal existence in
+any of the United States.
+
+In the first place--although the assertion is constantly made, and
+rarely denied, yet it is palpably a mere begging of the whole question
+in favor of slavery, to say that the constitution _intended_ to sanction
+it; for if it _intended_ to sanction it, it _did_ thereby necessarily
+sanction it, (that is, if slavery then had any constitutional existence
+to be sanctioned.) The _intentions_ of the constitution are the only
+means whereby it sanctions any thing. And its intentions necessarily
+sanction everything to which they apply, and which, in the nature of
+things, they are competent to sanction. To say, therefore, that the
+constitution _intended_ to sanction slavery, is the same as to say that
+it _did_ sanction it; which is begging the whole question, and
+substituting mere assertion for proof.
+
+Why, then, do not men say distinctly, that the constitution _did_
+sanction slavery, instead of saying that it _intended_ to sanction it?
+We are not accustomed to use the word "_intention_," when speaking of
+the other grants and sanctions of the constitution. We do not say, for
+example, that the constitution _intended_ to authorize congress "to coin
+money," but that it _did_ authorize them to coin it. Nor do we say that
+it intended to authorize them "to declare war;" but that it did
+authorize them to declare it. It would be silly and childish to say
+merely that it _intended_ to authorize them "to coin money," and "to
+declare war," when the language authorizing them to do so, is full,
+explicit and positive. Why, then, in the case of slavery, do men say
+merely that the constitution _intended_ to sanction it, instead of
+saying distinctly, as we do in the other cases, that it _did_ sanction
+it? The reason is obvious. If they were to say unequivocally that it
+_did_ sanction it, they would lay themselves under the necessity of
+pointing to the _words_ that sanction it; and they are aware that the
+_words alone_ of the constitution do not come up to that point. They,
+therefore, assert simply that the constitution _intended_ to sanction
+it; and they then attempt to support the assertion by quoting certain
+words and phrases, which they say are _capable_ of covering, or rather
+of concealing such an intention; and then by the aid of exterior,
+circumstantial and historical evidence, they attempt to enforce upon the
+mind the conclusion that, as matter of fact, such was the intention of
+those who _drafted_ the constitution; and thence they finally infer that
+such was the intention of the constitution itself.
+
+The error and fraud of this whole procedure--and it is one purely of
+error and fraud--consists in this--that it artfully substitutes the
+supposed intentions of those who drafted the constitution, for the
+intentions of the constitution itself; and, secondly, it personifies the
+constitution as a crafty individual; capable of both open and secret
+intentions; capable of legally participating in, and giving effect to
+all the subtleties and double dealing of knavish men; and as actually
+intending to secure slavery, while openly professing to "secure and
+establish liberty and justice." It personifies the constitution as an
+individual capable of having private and criminal intentions, which it
+dare not distinctly avow, but only darkly hint at, by the use of words
+of an indefinite, uncertain and double meaning, whose application is to
+be gathered from external circumstances.
+
+The falsehood of all these imaginings is apparent, the moment it is
+considered that the constitution is not a _person_, of whom an
+"intention," not legally expressed, can be asserted; that it has none of
+the various and selfish passions and motives of action, which sometimes
+prompt _men_ to the practice of duplicity and disguise; that it is
+merely a written legal instrument; that, as such, it must have a fixed,
+and not a double meaning; that it is made up entirely of intelligible
+words; and that it has, and _can_ have, no soul, no "_intentions_," no
+motives, no being, no personality, except what those words alone express
+or imply. Its "intentions" are nothing more nor less than the legal
+meaning of its words. Its intentions are no guide to its legal
+meaning--as the advocates of slavery all assume; but its legal meaning
+is the sole guide to its intentions. This distinction is all important
+to be observed; for if we can gratuitously assume the intentions of a
+legal instrument to be what we may wish them to be, and can then strain
+or pervert the ordinary meaning of its words, in order to make them
+utter those intentions, we can make any thing we choose of any legal
+instrument whatever. The legal meaning of the words of an instrument is,
+therefore, necessarily our only guide to its intentions.
+
+In ascertaining the legal meaning of the words of the constitution,
+these rules of law, (the reasons of which will be more fully explained
+hereafter,) are vital to be borne constantly in mind, viz: 1st, that no
+intention in violation of natural justice and natural right, (like that
+to sanction slavery,) can be ascribed to the constitution, unless that
+intention be expressed in terms that are _legally competent_ to express
+such an intention; and, 2d, that no terms, except those that are
+plenary, express, explicit, distinct, unequivocal, _and to which no
+other meaning can be given, are legally competent_ to authorize or
+sanction any thing contrary to natural right. The rule of law is
+materially different as to the terms necessary to legalize and sanction
+any thing contrary to natural right, and those necessary to legalize
+things that are consistent with natural right. The latter may be
+sanctioned by implication and inference; the former only by inevitable
+implication, or by language that is full, definite, express, explicit,
+unequivocal, and whose _unavoidable_ import is to sanction the _specific
+wrong_ intended.
+
+To assert, therefore, that the constitution _intended_ to sanction
+slavery, is, in reality, equivalent to asserting that the _necessary_
+meaning, the _unavoidable_ import of the _words alone_ of the
+constitution, come fully up to the point of a clear, definite, distinct,
+express, explicit, unequivocal, necessary and peremptory sanction of the
+specific thing, _human slavery, property in man_. If the _necessary_
+import of its _words alone_ do but fall an iota short of this point, the
+instrument gives, and, legally speaking, intended to give no legal
+sanction to slavery. Now, who can, in good faith, say that the _words
+alone_ of the constitution come up to this point? No one, who knows any
+thing of law, and the meaning of words. Not even the name of the thing,
+alleged to be sanctioned, is given. The constitution itself contains no
+designation, description, or necessary admission of the existence of
+such a thing as slavery, servitude, or the right of property in man. We
+are obliged to go out of the instrument, and grope among the records of
+oppression, lawlessness and crime--records unmentioned, and of course
+unsanctioned by the constitution--to _find_ the thing, to which it is
+said that the words of the constitution apply. And when we have found
+this thing, which the constitution dare not name, we find that the
+constitution has sanctioned it, (if at all,) only by enigmatical words,
+by unnecessary implication and inference, by inuendo and double
+entendre, and under a name that entirely fails of describing the thing.
+Every body must admit that the constitution itself contains no language,
+from which _alone_ any court, that were either strangers to the prior
+existence of slavery, or that did not assume its prior existence to be
+legal, could legally decide that the constitution sanctioned it. And
+this is the true test for determining whether the constitution does, or
+does not, sanction slavery, viz: whether a court of law, strangers to
+the prior existence of slavery, or not assuming its prior existence to
+be legal--looking only at the naked language of the instrument--could,
+consistently with legal rules, judicially determine that it sanctioned
+slavery. Every lawyer, who at all deserves that name, knows that the
+claim for slavery could stand no such test. The fact is palpable, that
+the constitution contains no such legal sanction; that it is only by
+unnecessary implication and inference, by inuendo and double-entendre,
+by the aid of exterior evidence, the assumption of the prior legality of
+slavery, and the gratuitous imputation of criminal intentions that are
+not avowed in legal terms, that any sanction of slavery, (as a legal
+institution,) can be extorted from it.
+
+But legal rules of interpretation entirely forbid and disallow all such
+implications, inferences, inuendos and double-entendre, all aid of
+exterior evidence, all assumptions of the prior legality of slavery, and
+all gratuitous imputations of criminal unexpressed intentions; and
+consequently compel us to come back to the _letter_ of the instrument,
+and find _there_ a distinct, clear, necessary, peremptory sanction for
+slavery, or to surrender the point.
+
+To the unprofessional reader these rules of interpretation will appear
+stringent, and perhaps unreasonable and unsound. For his benefit,
+therefore, the reasons on which they are founded, will be given. And he
+is requested to fix both the reasons and the rules fully in his mind,
+inasmuch as the whole legal meaning of the constitution, in regard to
+slavery, may perhaps be found to turn upon the construction which these
+rules fix upon its language.
+
+But before giving the reasons of this rule, let us offer a few remarks
+in regard to _legal_ rules of interpretation in general. Many persons
+appear to have the idea that these rules have no foundation in reason,
+justice or necessity; that they are little else than whimsical and
+absurd conceits, arbitrarily adopted by the courts. No idea can be more
+erroneous than this. The rules are absolutely indispensable to the
+administration of the justice arising out of any class of legal
+instruments whatever--whether the instruments be simple contracts
+between man and man, or statutes enacted by legislatures, or fundamental
+compacts or constitutions of government agreed upon by the people at
+large. In regard to all these instruments, the _law_ fixes, and
+necessarily must fix their meaning; and for the obvious reason, that
+otherwise their meaning could not be fixed at all. The parties to the
+simplest contract may disagree, or pretend to disagree, as to its
+meaning, and of course as to their respective rights under it. The
+different members of a legislative body, who vote for a particular
+statute, may have different intentions in voting for it, and may
+therefore differ, or pretend to differ, as to its meaning. The people
+of a nation may establish a compact of government. The motives of one
+portion may be to establish liberty, equality and justice; and they may
+think, or pretend to think that the words used in the instrument convey
+that idea. The motives of another portion may be to establish the
+slavery or subordination of one part of the people, and the superiority
+or arbitrary power of the other part; and they may think, or pretend to
+think, that the language agreed upon by the whole authorizes such a
+government. In all these cases, unless there were some rules of law,
+applicable alike to all instruments, and competent to settle their
+meaning, their meaning could not be settled; and individuals would of
+necessity lose their rights under them. _The law, therefore, fixes their
+meaning_; and the rules by which it does so, are founded in the same
+justice, reason, necessity and truth, as are other legal principles, and
+are for that reason as inflexible as any other legal principles
+whatever. They are also simple, intelligible, natural, obvious. Every
+body are presumed to know them, as they are presumed to know any other
+legal principles. No one is allowed to plead ignorance of them, any more
+than of any other principle of law. All persons and people are presumed
+to have framed their contracts, statutes and constitutions with
+reference to them. And if they have not done so--if they have said black
+when they meant white, and one thing when they meant another, they must
+abide the consequences. The law will presume that they meant what they
+said. No one, in a court of justice, can claim any rights founded on a
+construction different from that which these rules would give to the
+contract, statute, or constitution, under which he claims. The judiciary
+cannot depart from these rules, for two reasons. First, because the
+rules embody in themselves principles of justice, reason and truth; and
+are therefore as necessarily law as any other principles of justice,
+reason and truth; and, secondly, because if they could lawfully depart
+from them in one case, they might in another, at their own caprice.
+Courts could thus at pleasure become despotic; all certainty as to the
+legal meaning of instruments would be destroyed; and the administration
+of justice, according to the true meaning of contracts, statutes and
+constitutions, would be rendered impossible.
+
+What, then, are some of these rules of interpretation?
+
+One of them, (as has been before stated,) is, that where words are
+susceptible of two meanings, one consistent, and the other inconsistent,
+with justice and natural right, that meaning, and _only that_ meaning,
+which is consistent with right, shall be attributed to them--unless
+other parts of the instrument overrule that interpretation.
+
+Another rule, (if indeed it be not the same,) is, that no language,
+except that which is peremptory, and no implication, except one that is
+inevitable, shall be held to authorize or sanction any thing contrary to
+natural right.
+
+Another rule is, that no _extraneous or historical evidence_ shall be
+admitted to fix upon a statute an unjust or immoral meaning, when the
+words themselves of the act are susceptible of an innocent one.
+
+One of the reasons of these stringent and inflexible rules, doubtless
+is, that judges have always known that, in point of fact, natural
+justice was itself law, and that nothing inconsistent with it could be
+made law, even by the most explicit and peremptory language that
+legislatures could employ.--But judges have always, in this country and
+in England, been dependent upon the executive and the legislature for
+their appointments and salaries, and been amenable to the legislature by
+impeachment. And as the executive and legislature have always enacted
+more or less statutes, and had more or less purposes to accomplish, that
+were inconsistent with natural right, judges have seen that it would be
+impossible for them to retain their offices, and at the same time
+maintain the integrity of the law against the will of those in whose
+power they were. It is natural also that the executive should appoint,
+and that the legislature should approve the appointment of no one for
+the office of judge, whose integrity they should suppose would stand in
+the way of their purposes.--The consequence has been that all judges,
+(probably without exception,) though they have not dared deny, have yet
+in practice yielded the vital principle of law; and have succumbed to
+the arbitrary mandates of the other departments of the government, so
+far as to carry out their enactments, though inconsistent with natural
+right. But, as if sensible of the degradation and criminality of so
+doing, they have made a stand at the first point at which they could
+make it, without bringing themselves in a direct collision with those on
+whom they were dependent. And that point is, that they will administer,
+as law, no statute, that is contrary to natural right, unless its
+language be so explicit and peremptory, that there is no way of evading
+its authority, but by flatly denying the authority of those who enacted
+it. They (the court) will themselves add nothing to the language of the
+statute, to help out its supposed meaning. They will imply nothing,
+infer nothing, and assume nothing, except what is inevitable; they will
+not go out of the letter of the statute in search of any _historical_
+evidence as to the meaning of the legislature, to enable them to
+effectuate any _unjust_ intentions not fully expressed by the statute
+itself. Wherever a statute is supposed to have in view the
+accomplishment of any unjust end, they will apply the most stringent
+principles of construction to prevent that object's being effected. They
+will not go a hair's breadth beyond the literal or inevitable import _of
+the words_ of the statute, even though they should be conscious, all the
+while, that the real intentions of the makers of it would be entirely
+defeated by their refusal. The rule, (as has been already stated,) is
+laid down by the supreme court of the United States in these words:
+
+"Where rights are infringed, where fundamental principles are
+overthrown, where the general system of the law is departed from, the
+legislative intention must be expressed with _irresistible clearness_,
+to induce a court of justice to suppose a design to effect such
+objects."--(_United States_ vs. _Fisher et al., 2 Cranch_, 390.)[18]
+
+Such has become the settled doctrine of courts. And although it does not
+come up to the true standard of law, yet it is good in itself, so far as
+it goes, and ought to be unflinchingly adhered to, not merely for its
+own sake, but also as a scaffolding, from which to erect that higher
+standard of law, to wit, that no language or authority whatever can
+legalize any thing inconsistent with natural justice.[19]
+
+Another reason for the rules before given, against all constructions,
+implications and inferences--except inevitable ones--in favor of
+injustice, is, that but for them we should have no guaranty that our
+honest contracts, or honest laws would be honestly administered by the
+judiciary. It would be nearly or quite impossible for men, in framing
+their contracts or laws, to use language so as to exclude every possible
+implication in favor of wrong, if courts were allowed to resort to such
+implications. _The law therefore excludes them_; that is, the ends of
+justice--the security of men's rights under their honest contracts, and
+under honest legislative enactments--make it imperative upon courts of
+justice to ascribe an innocent and honest meaning to all language that
+will possibly bear an innocent and honest meaning. If courts of justice
+could depart from this rule for the purpose of upholding what was
+contrary to natural right, and could employ their ingenuity in spying
+out some implied or inferred authority, for sanctioning what was in
+itself dishonest or unjust, when such was not the _necessary_ meaning of
+the language used, there could be no security whatever for the honest
+administration of honest laws, or the honest fulfilment of men's honest
+contracts. Nearly all language, on the meaning of which courts
+adjudicate, would be liable, at the caprice of the court, to be
+perverted from the furtherance of honest, to the support of dishonest
+purposes. Judges could construe statutes and contracts in favor of
+justice or injustice, as their own pleasure might dictate.
+
+Another reason of the rules, is, that as governments have, and can have
+no legitimate objects or powers opposed to justice and natural right, it
+would be treason to all the legitimate purposes of government, for the
+judiciary to give any other than an honest and innocent meaning to any
+language, that would bear such a construction.
+
+The same reasons that forbid the allowance of any unnecessary
+implication or inference in favor of a wrong, in the construction of a
+statute, forbids also the introduction of any _extraneous or historical_
+evidence to prove that the intentions of the legislature were to
+sanction or authorize a wrong.
+
+The same rules of construction, that apply to statutes, apply also to
+all those private contracts between man and man, _which courts actually
+enforce_. But as it is both the right and the duty of courts to
+invalidate altogether such private contracts as are inconsistent with
+justice, they will admit evidence exterior to their words, _if offered
+by a defendant for the purpose of invalidating them_. At the same time,
+a plaintiff, or party that wishes to set up a contract, or that claims
+its fulfilment, will not be allowed to offer any evidence exterior to
+its words, to prove that the contract is contrary to justice--because,
+if his evidence were admitted, it would not make his unjust claim a
+legal one; but only invalidate it altogether. But as courts do not claim
+the right of invalidating statutes and constitutions, they will not
+admit evidence, exterior to their language, to give them such a
+meaning, that they ought to be invalidated.
+
+I think no one--no lawyer, certainly--will now deny that it is a legal
+rule of interpretation--that must be applied to all statutes, and also
+to all private contracts _that are to be enforced_--that an innocent
+meaning, _and nothing beyond an innocent meaning_, must be given to all
+language that will possibly bear such a meaning. All will probably admit
+that the rule, as laid down by the supreme court of the United States,
+is correct, to wit, that "where rights are infringed, where fundamental
+principles are overthrown, where the general system of the law is
+departed from, the legislative intention must be expressed with
+_irresistible clearness_, to induce a court of justice to suppose a
+design to effect such objects."
+
+But perhaps it will be said that these rules, which apply to all
+statutes, and to all private contracts that are to be enforced, do not
+apply to the constitution. And why do they not? No reason whatever can
+be given. A constitution is nothing but a contract, entered into by the
+mass of the people, instead of a few individuals. This contract of the
+people at large becomes a law unto the judiciary that administer it,
+just as private contracts, (so far as they are consistent with natural
+right,) are laws unto the tribunals that adjudicate upon them. All the
+essential principles that enter into the question of obligation, in the
+case of a private contract, or a legislative enactment, enter equally
+into the question of the obligation of a contract agreed to by the whole
+mass of the people. This is too self-evident to need illustration.
+
+Besides, is it not as important to the safety and rights of all
+interested, that a constitution or compact of government, established by
+a whole people, should be so construed as to promote the ends of
+justice, as it is that a private contract or a legislative enactment
+should be thus construed? Is it not as necessary that some check should
+be imposed upon the judiciary to prevent them from perverting, at
+pleasure, the whole purpose and character of the government, as it is
+that they should be restrained from perverting the meaning of a private
+contract, or a legislative enactment? Obviously written compacts of
+government could not be upheld for a day, if it were understood by the
+mass of the people that the judiciary were at liberty to interpret them
+according to their own pleasure, instead of their being restrained by
+such rules as have now been laid down.
+
+Let us now look at some of the provisions of the constitution, and see
+what crimes might be held to be authorized by them, if their meaning
+were not to be ascertained and restricted by such rules of
+interpretation as apply to all other legal instruments.
+
+The second amendment to the constitution declares that "the right of the
+people to keep and bear arms shall not be infringed."
+
+This right "to keep and bear arms," implies the right to use them--as
+much as a provision securing to the people the right to buy and keep
+food, would imply their right also to eat it. But this implied right to
+use arms, is only a right to use them in a manner consistent with
+natural rights--as, for example, in defence of life, liberty, chastity,
+&c. Here is an innocent and just meaning, of which the words are
+susceptible; and such is therefore the _extent_ of their legal meaning.
+If courts could go beyond the innocent and necessary meaning of the
+words, and imply or infer from them an authority for anything contrary
+to natural right, they could imply a constitutional authority in the
+people to use arms, not merely for the just and innocent purposes of
+defence, but also for the criminal purposes of aggression--for purposes
+of murder, robbery, or any other acts of wrong to which arms are capable
+of being applied. The mere _verbal_ implication would as much authorize
+the people to use arms for unjust, as for just, purposes. But the
+_legal_ implication gives only an authority for their innocent use. And
+why? Simply because justice is the end of all law--the legitimate end of
+all compacts of government. It is itself law; and there is no right or
+power among men to destroy its obligation.
+
+Take another case. The constitution declares that "Congress shall have
+power to _regulate commerce_ with foreign nations, and among the several
+states, and with the Indian tribes."
+
+This power has been held by the supreme court to be an exclusive one in
+the general government--and one that cannot be controlled by the states.
+Yet it gives congress no constitutional authority to legalize any
+commerce inconsistent with natural justice between man and man; although
+the _mere_ verbal import of the words, if stretched to their utmost
+tension in favor of the wrong, would authorize congress to legalize a
+commerce in poisons and deadly weapons, for the express purpose of
+having them used in a manner inconsistent with natural right--as for the
+purposes of murder.
+
+At natural law, and on principles of natural right, a person, who should
+_sell_ to another a weapon or a poison, knowing that it would, or
+intending that it should be used for the purpose of murder, would be
+legally an accessary to the murder that should be committed with it. And
+if the grant to congress of a "power to regulate commerce," can be
+stretched beyond the _innocent_ meaning of the words--beyond the power
+of regulating and authorizing a commerce that is consistent with natural
+justice--and be made to cover every thing, intrinsically criminal, that
+can be perpetrated under the name of commerce--then congress have the
+authority of the constitution for granting to individuals the liberty of
+bringing weapons and poisons from "foreign nations" into this, and from
+one state into another, and selling them openly for the express purposes
+of murder, without any liability to legal restraint or punishment.
+
+Can any stronger cases than these be required to prove the necessity,
+the soundness, and the inflexibility of that rule of law, which requires
+the judiciary to ascribe an innocent meaning to all language that will
+possibly bear an innocent meaning? and to ascribe _only_ an innocent
+meaning to language whose mere verbal import might be susceptible of
+both an innocent _and_ criminal meaning? If this rule of interpretation
+could be departed from, there is hardly a power granted to congress,
+that might not _lawfully_ be perverted into an authority for legalizing
+crimes of the highest grade.
+
+In the light of these principles, then, let us examine those clauses of
+the constitution, that are relied on as recognizing and sanctioning
+slavery. They are but three in number.
+
+The one most frequently quoted is the third clause of Art. 4, Sec. 2, in
+these words:
+
+   "No person, held to service or labor in one state, under the laws
+   thereof, escaping into another, shall in consequence of any law or
+   regulation therein, be discharged from such service or labor; but
+   shall be delivered up on claim of the party to whom such service or
+   labor may be due."
+
+There are several reasons why this clause renders no sanction to
+slavery.
+
+1. It must be construed, if possible, as sanctioning nothing contrary to
+natural right.
+
+If there be any "service or labor" whatever, to which any "persons"
+whatever may be "held," _consistently with natural right_, and which any
+person may, consistently with natural right, "_claim_" as his "_due_" of
+another, such "service or labor," and _only_ such, is recognized and
+sanctioned by this provision.
+
+It needs no argument to determine whether the "service or labor," that
+is exacted of a slave, is such as can be "_claimed_," _consistently with
+natural right_, as being "_due_" from him to his master. And if it
+cannot be, some other "service or labor" must, if possible, be found for
+this clause to apply to.
+
+The proper definition of the word "service," in this case, obviously is,
+the labor of a _servant_. And we find, that at and before the adoption
+of the constitution, the persons recognized by the state laws as
+"servants," constituted a numerous class. The statute books of the
+states abounded with statutes in regard to "servants." Many seem to have
+been indented as servants by the public authorities, on account of
+their being supposed incompetent, by reason of youth and poverty, to
+provide for themselves. Many were doubtless indented as apprentices by
+their parents and guardians, as now. The English laws recognized a class
+of servants--and many persons were brought here from England, in that
+character, and retained that character afterward. Many indented or
+contracted themselves as servants for the payment of their passage money
+to this country. In these various ways, the class of persons, recognized
+by the statute books of the states as "servants," was very numerous; and
+formed a prominent subject of legislation. Indeed, no other evidence of
+their number is necessary than the single fact, that "persons bound to
+service for a term of years," were specially noticed by the constitution
+of the United States, (Art. 1, Sec. 2,) which requires that they be
+counted as units in making up the basis of representation. There is
+therefore not the slightest apology for pretending that there was not a
+sufficient class for the words "service or labor" to refer to, without
+supposing the existence of slaves.[20]
+
+2. "_Held to service or labor_," is no legal description of slavery.
+Slavery is property in man. It is not necessarily attended with either
+"service or labor." A very considerable portion of the slaves are either
+too young, too old, too sick, or too refractory to render "service or
+labor." As a matter of fact, slaves, who are able to labor, may, in
+general, be compelled by their masters to do so. Yet labor is not an
+essential or necessary condition of slavery. The essence of slavery
+consists in a person's being owned as property--without any reference to
+the circumstances of his being compelled to labor, or of his being
+permitted to live in idleness, or of his being too young, or too old, or
+too sick to labor.
+
+If "service or labor" were either a test, or a necessary attendant of
+slavery, that test would of itself abolish slavery; because all slaves,
+before they can render "service or labor," must have passed through the
+period of infancy, when they could render neither service nor labor, and
+when, therefore, according to this test, they were free. And if they
+were free in infancy, they could not be subsequently enslaved.
+
+3. "Held to service or labor in one state, _under the laws thereof_."
+
+The "_laws_" take no note of the fact whether a slave "labors," or not.
+They recognize no obligation, on his part, to labor. They will enforce
+no "_claim_" of a master, upon his slave, for "service or labor." If the
+slave refuse to labor, the law will not interfere to compel him. The law
+simply recognizes the master's _right of property_ in the slave--just as
+it recognizes his right of property in a horse. Having done that, it
+leaves the master to compel the slave, if he please, and if he can--as
+he would compel a horse--to labor. If the master do not please, or be
+not able, to compel the slave to labor, the law takes no more cognizance
+of the case than it does of the conduct of a refractory horse. In short,
+it recognizes no obligation, on the part of the slave, to labor, if he
+can avoid doing so. It recognizes no "_claim_," on the part of the
+master, upon his slave, for "services or labor," as "_due_" from the
+latter to the former.
+
+4. Neither "service" nor "labor" is necessarily slavery; and not being
+necessarily slavery, the words cannot, in this case, be strained beyond
+their necessary meaning, to make them sanction a wrong. The law will
+not allow words to be strained a hair's breadth beyond their _necessary_
+meaning, to make them authorize a wrong. _The stretching, if there be
+any, must always be towards the right._ The words "service or labor" do
+not necessarily, nor in their common acceptation, so much as suggest the
+idea of slavery--that is, they do not suggest the idea of the laborer or
+servant being the property of the person for whom he labors. An indented
+apprentice serves and labors for another. He is "_held_" to do so, under
+a contract, and for a consideration, that are recognized, by the laws,
+as legitimate, and consistent with natural right. Yet he is not owned as
+property. A condemned criminal is "held to labor"--yet he is not owned
+as property. The law allows no such straining of the meaning of words
+towards the wrong, as that which would convert the words "service or
+labor" (of men) into _property in man_--and thus make a man, who serves
+or labors for another, the property of that other.
+
+5. "No person held to service or labor, in one state, under the _laws_
+thereof."
+
+The "_laws_," here mentioned, and impliedly sanctioned, are, of course,
+only _constitutional_ laws--laws, that are consistent, both with the
+constitution of the state, and the constitution of the United States.
+None others are "_laws_," correctly speaking, however they may attempt
+to "hold persons to service or labor," or however they may have the
+forms of laws on the statute books.
+
+This word "laws," therefore, being a material word, leaves the whole
+question just where it found it--for it certainly does not, _of
+itself_--nor indeed does any other part of the clause--say that acts of
+a legislature, declaring one man to be the property of another, is a
+"_law_" within the meaning of the constitution. As far as the word
+"_laws_" says any thing on the subject, it says that such acts are _not_
+laws--for such acts are clearly inconsistent with natural law--and it
+yet remains to be shown that they are consistent with any constitution
+whatever, state or national.
+
+The burden of proof, then, still rests upon the advocates of slavery, to
+show that an act of a state legislature, declaring one man to be the
+property of another, is a "law," within the meaning of this clause. To
+assert simply that it is, without proving it to be so, is a mere begging
+of the question--for that is the very point in dispute.
+
+The question, therefore, of the _constitutionality_ of the slave acts
+must first be determined, before it can be decided that they are "laws"
+within the meaning of the constitution. That is, they must be shown to
+be consistent with the constitution, before they can be said to be
+sanctioned as "laws" by the constitution. Can any proposition be plainer
+than this? And yet the reverse must be assumed, in this case, by the
+advocates of slavery.
+
+The simple fact, that an act purports to "hold persons to service or
+labor," clearly cannot, _of itself_, make the act constitutional. If it
+could, any act, purporting to hold "persons to service or labor," would
+necessarily be constitutional, without any regard to the "persons" so
+held, or the conditions on which they were held. It would be
+constitutional, _solely because it purported to hold persons to service
+or labor_. If this were the true doctrine, any of us, without respect of
+persons, might be held to service or labor, at the pleasure of the
+legislature. And then, if "service or labor" mean slavery, it would
+follow that any of us, without discrimination, might be made slaves. And
+thus the result would be, that the acts of a legislature would be
+constitutional, _solely because they made slaves of the people_.
+Certainly this would be a new test of the constitutionality of laws.
+
+All the arguments in favor of slavery, that have heretofore been drawn
+from this clause of the constitution, have been founded on the
+assumption, that if an act of a legislature did but purport to "hold
+persons to service or labor"--no matter how, on what conditions, or for
+what cause--that fact alone was sufficient to make the act
+constitutional. The entire sum of the argument, in favor of slavery, is
+but this, viz. the constitution recognizes the constitutionality of
+"laws" that "hold persons to service or labor,"--slave acts "hold
+persons to service or labor,"--therefore slave acts must be
+constitutional. This profound syllogism is the great pillar of slavery
+in this country. It has, (if we are to judge by results,) withstood the
+scrutiny of all the legal acumen of this nation for fifty years and
+more. If it should continue to withstand it for as many years as it has
+already done, it will then be time to propound the following, to wit:
+The state constitutions recognize the right of men to acquire property;
+theft, robbery, and murder are among the modes in which property may be
+acquired; therefore theft, robbery, and murder are recognized by these
+constitutions as lawful.
+
+No doubt the clause contemplates that there may be constitutional
+"laws," under which persons may be "held to service or labor." But it
+does not follow, therefore, that every act, that purports to hold
+"persons to service or labor," is constitutional.
+
+We are obliged, then, to determine whether a statute be constitutional,
+before we can determine whether the "service or labor" required by it,
+is sanctioned by the constitution as being lawfully required. The simple
+fact, that the statute would "hold persons to service or labor," is, _of
+itself_, no evidence, either for or against its constitutionality.
+Whether it be or be not constitutional, may depend upon a variety of
+contingencies--such as the kind of service or labor required, and the
+conditions on which it requires it. Any service or labor, that is
+inconsistent with the duties which the constitution requires of the
+people, is of course not sanctioned by this clause of the constitution
+as being lawfully required. Neither, of course, is the requirement of
+service or labor, _on any conditions, that are inconsistent with any
+rights that are secured to the people by the constitution_, sanctioned
+by the constitution as lawful. Slave laws, then, can obviously be held
+to be sanctioned by this clause of the constitution, only by
+gratuitously assuming, 1st, that the constitution neither confers any
+rights, nor imposes any duties, upon the people of the United States,
+inconsistent with their being made slaves; and, 2d, that it sanctions
+the general principle of holding "persons to service or labor"
+arbitrarily, without contract, without compensation, and without the
+charge of crime. If this be really the kind of constitution that has
+been in force since 1789, it is somewhat wonderful that there are so few
+slaves in the country. On the other hand, if the constitution be not of
+this kind, it is equally wonderful that we have any slaves at all--for
+the instrument offers no ground for saying that a colored man may be
+made a slave, and a white man not.
+
+Again. Slave acts were not "laws" according to any state constitution
+that was in existence at the time the constitution of the United States
+was adopted. And if they were not "laws" at that time, they have not
+been made so since.
+
+6. The constitution itself, (Art. 1. Sec. 2,) in fixing the basis of
+representation, has plainly _denied_ that those described in Art. 4, as
+"persons held to service or labor," are slaves,--for it declares that
+"persons bound to service for a term of years" shall be "included" in
+the "number of _free_ persons." There is no _legal_ difference between
+being "bound to service," and being "held to service or labor." The
+addition, in the one instance, of the words, "for a term of years," does
+not alter the case, for it does not appear that, in the other, they are
+"held to service or labor" beyond a fixed term--and, in the absence of
+evidence from the constitution itself, the presumption must be that they
+are not--because such a presumption makes it unnecessary to go out of
+the constitution to find the persons intended, and it is also more
+consistent with the prevalent municipal, and with natural law.
+
+And it makes no difference to this result, whether the word "free," in
+the first article, be used in the political sense common at that day, or
+as the correlative of slavery. In either case, the persons described as
+"free," could not be made slaves.
+
+7. The words "service or labor" cannot be made to include slavery,
+unless by reversing the legal principle, that the greater includes the
+less, and holding that the less includes the greater; that the innocent
+includes the criminal; that a sanction of what is right, includes a
+sanction of what is wrong.
+
+Another clause relied on as a recognition of the constitutionality of
+slavery, is the following, (Art. 1. Sec. 2.):
+
+   "Representatives and direct taxes shall be apportioned among the
+   several states, which may be included within this union, according to
+   their respective numbers, which shall be determined by adding to the
+   whole number of _free_ persons, including those bound to service for
+   a term of years, and excluding Indians not taxed, three-fifths of all
+   other persons."
+
+The argument claimed from this clause, in support of slavery, rests
+entirely upon the word "free," and the words "all other persons." Or
+rather it rests entirely upon the meaning of the word "free," for the
+application of the words "all other persons" depends upon the meaning
+given to the word "free." The slave argument _assumes_, _gratuitously_,
+that the word "free" is used as the correlative of slavery and thence it
+infers that the words, "all other persons," mean slaves.
+
+It is obvious that the word "free" affords no argument for slavery,
+unless a meaning correlative with slavery be _arbitrarily_ given to it,
+for the very purpose of _making_ the constitution sanction or recognize
+slavery. Now it is very clear that no such meaning can be given to the
+word, _for such a purpose_. The ordinary meaning of a word cannot be
+thus arbitrarily changed, _for the sake of sanctioning a wrong_. A
+choice of meaning would be perfectly allowable, and even obligatory, if
+made for the purpose of _avoiding_ any such sanction; but it is entirely
+inadmissable for the purpose of giving it. The legal rules of
+interpretation, heretofore laid down, imperatively require this
+preference of the right, over the wrong, in all cases where a word is
+susceptible of different meanings.
+
+The English law had for centuries used the word "free" as describing
+persons possessing citizenship, or some other franchise or peculiar
+privilege--as distinguished from aliens, and persons not possessed of
+such franchise or privilege. This law, and this use of the word "free,"
+as has already been shown, had been adopted in this country from its
+first settlement. The colonial charters all, (probably without an
+exception,) recognized it. The colonial legislation generally, if not
+universally, recognized it. The state constitutions, in existence at the
+time the constitution of the United States was formed and adopted, used
+the word in this sense, and no other. The Articles of Confederation--the
+then existing national compact of union--used the word in this sense,
+and no other. The sense is an appropriate one in itself; the most
+appropriate to, and consistent with the whole character of the
+constitution, of any of which the word is susceptible. In fact, it is
+the only one that is either appropriate to, or consistent with, the
+other parts of the instrument. Why, then, is it not the legal meaning?
+Manifestly it _is_ the legal meaning. No reason whatever can be given
+against it, except that, if such be its meaning, _the constitution will
+not sanction slavery_! A very good reason--a perfectly unanswerable
+reason, in fact--in favor of this meaning; but a very futile one against
+it.
+
+It is evident that the word "free" is not used as the correlative of
+slavery, because "Indians not taxed" are "excluded" from its
+application--yet they are not therefore slaves.
+
+Again. The word "free" cannot be presumed to be used as the correlative
+of slavery--because slavery then had no _legal_ existence. The word must
+obviously be presumed to be used as the correlative of something that
+did _legally_ exist, rather than of something that did not legally
+exist. If it were used as the correlative of something that did not
+legally exist, the words "all other persons" would have no legal
+application. Until, then, it be shown that slavery had a legal
+existence, authorized either by the United States constitution, or by
+the then existing state constitutions--a thing that cannot be shown--the
+word "free" certainly cannot be claimed to have been used as its
+correlative.
+
+But even if slavery had been authorized by the _state_ constitutions,
+the word "free," in the United States constitution, could not have been
+claimed to have been used as its correlative, unless it had appeared
+that the United States constitution had itself provided or suggested no
+correlative of the word "free;" for it would obviously be absurd and
+inadmissible to go out of an instrument to find the intended correlative
+of one of its own words, when it had itself suggested one. This the
+constitution of the United States has done, in the persons of aliens.
+The power of naturalization is, by the constitution, taken from the
+states, and given exclusively to the United States. The constitution of
+the United States, therefore, necessarily supposes the existence of
+aliens--and thus furnishes the correlative sought for. It furnishes a
+class both for the word "free," and the words "all other persons" to
+apply to. And yet the slave argument contends that we must overlook
+these distinctions, necessarily growing out of the laws of the United
+States, and go out of the constitution of the United States to _find_
+persons whom it describes as the "free," and "all other persons." And
+what makes the argument the more absurd is, that by going out of the
+instrument to the _then existing state constitutions_--the only
+instruments to which we can go--we can find there _no other_ persons for
+the words to apply to--no other classes answering to the description of
+the "free persons" and "all other persons,"--than the very classes
+suggested by the United States constitution itself, to wit, citizens and
+aliens; (for it has previously been shown that the then existing state
+constitutions recognized no such persons as slaves.)
+
+If we are obliged, (as the slave argument claims we are,) to go out of
+the constitution of the United States to find the class whom it
+describes as "all other persons" than "the free," we shall, for aught I
+see, be equally obliged to go out of it to find those whom it describes
+as the "free"--for "the free," and "all other persons" than "the free,"
+must be presumed to be found described somewhere in the same instrument.
+If, then, we are obliged to go out of the constitution to find the
+persons described in it as "the free" and "all other persons," we are
+obliged to go out of it to ascertain who are the persons on whom it
+declares that the representation of the government shall be based, and
+on whom, of course, the government is founded. And thus we should have
+the absurdity of a constitution that purports to authorize a government,
+yet leaves us to go in search of the people who are to be represented in
+it. Besides, if we are obliged to go out of the constitution, to find
+the persons on whom the government rests, and those persons are
+arbitrarily prescribed by some other instrument, independent of the
+constitution, this contradiction would follow, viz., that the United
+States government would be a subordinate government--a mere appendage to
+something else--a tail to some other kite--or rather a tail to a large
+number of kites at once--instead of being, as it declares itself to be,
+the supreme government--its constitution and laws being the supreme law
+of the land.
+
+Again. It certainly cannot be admitted that we must go out of the United
+States constitution to find the classes whom it describes as "the free,"
+and "all other persons" than "the free," until it be shown that the
+constitution has told us where to go to find them. _In all other cases_,
+(without an exception, I think,) where the constitution makes any of its
+provisions dependent upon the state constitutions, or state
+legislatures, it has particularly described them as depending upon them.
+But it gives no intimation that it has left it with the state
+constitutions, or the state legislatures, to prescribe whom it means by
+the terms "free persons" and "all other persons," on whom it requires
+its own representation to be based. We have, therefore, no more
+authority from the constitution of the United States, for going to the
+state constitutions, to find the classes described in the former as the
+"free persons" and "all other persons," than we have for going to Turkey
+or Japan. We are compelled, therefore, to find them in the constitution
+of the United States itself, if any answering to the description can
+possibly be found there.
+
+Again. If we were permitted to go to the state constitutions, or to the
+state statute books, to find who were the persons intended by the
+constitution of the United States; and if, as the slave argument
+assumes, it was left to the states respectively to prescribe who should,
+and who should not, be "free" within the meaning of the constitution of
+the United States, it would follow that the terms "free" and "all other
+persons," might be applied in as many different ways, and to as many
+different classes of persons, as there were different states in the
+union. Not only so, but the application might also be varied at pleasure
+in the same state. One inevitable consequence of this state of things
+would be, that there could be neither a permanent, nor a uniform basis
+of representation throughout the country. Another possible, and even
+probable consequence would be, such inextricable confusion, as to the
+persons described by the same terms in the different states, that
+Congress could not apportion the national representation at all, in the
+manner required by the constitution. The questions of law, arising out
+of the different uses of the word "free," by the different states, might
+be made so endless and inexplicable, that the state governments might
+entirely defeat all the power of the general government to make an
+apportionment.
+
+If the slave construction be put upon this clause, still another
+difficulty, in the way of making an apportionment, would follow, viz.,
+that congress could have no _legal_ knowledge of the persons composing
+each of the two different classes, on which its representation must be
+based; for there is no legal record--known to the laws of the United
+States, or even to the laws of the states--of those who are slaves, or
+those who are not. The information obtained by the census takers, (who
+have no legal records to go to,) must, in the nature of things, be of
+the most loose and uncertain character, on such points as these. Any
+accurate or _legal_ knowledge on the subject is, therefore, obviously
+impossible. But if the other construction be adopted, this difficulty is
+avoided--for congress then have the control of the whole matter, and may
+adopt such means as may be necessary for ascertaining accurately the
+persons who belong to each of these different classes. And by their
+naturalization laws they actually do provide for a _legal_ record of all
+who are made "free" by naturalization.
+
+And this consideration of certainty, as to the individuals and numbers
+belonging to each of these two classes, "free" and "all other persons,"
+acquires an increased and irresistible force, when it is considered that
+these different classes of persons constitute also different bases for
+taxation, as well as representation. The requirement of the constitution
+is, that "representatives and _direct taxes_ shall be apportioned," &c.,
+according to the number of "free persons" and "all other persons." In
+reference to so important a subject as taxation, _accurate_ and _legal_
+knowledge of the persons and numbers belonging to the different classes,
+becomes indispensable. Yet under the slave construction this legal
+knowledge becomes impossible. Under the other construction it is as
+perfectly and entirely within the power of congress, as, in the nature
+of things, such a subject can be--for naturalization is a legal process;
+and legal records, prescribed by congress, may be, and actually are,
+preserved of all the persons naturalized or made "free" by their laws.
+
+If we adopt that meaning of the word "free," which is consistent with
+freedom--that meaning which is consistent with natural right--the
+meaning given to it by the Articles of Confederation, by the then
+existing state constitutions, by the colonial charters, and by the
+English law ever since our ancestors enjoyed the name of freemen, all
+these difficulties, inconsistencies, contradictions and absurdities,
+that must otherwise arise, vanish. The word "free" then describes the
+native and naturalized citizens of the United States, and the words "all
+other persons" describe resident aliens, "Indians not taxed," and
+possibly some others. The representation is then placed upon the best,
+most just, and most rational basis that the words used can be made to
+describe. The representation also becomes equal and uniform throughout
+the country. The principle of distinction between the two bases, becomes
+also a stable, rational and intelligible one--one too necessarily
+growing out of the exercise of one of the powers granted to
+congress;--one, too, whose operation could have been foreseen and judged
+of by the people who adopted the constitution--instead of one
+fluctuating with the ever changing and arbitrary legislation of the
+various states, whose mode and motives of action could not have been
+anticipated. Adopt this definition of the word "free," and the same
+legislature, (that is, the national one,) that is required by the
+constitution to apportion the representation according to certain
+principles, becomes invested--as it evidently ought to be, and as it
+necessarily must be, to be efficient--with the power of determining, by
+their own (naturalization) laws, who are the persons composing the
+different bases on which its apportionment is to be made; instead of
+being, as they otherwise would be, obliged to seek for these persons
+through all the statute books of all the different states of the union,
+and through all the evidences of private property, under which one of
+these classes might be held. Adopt this definition of the word "free,"
+and the United States government becomes, so far at least as its popular
+representation--which is its most important feature--is concerned, an
+independent government, subsisting by its own vigor, and pervaded
+throughout by one uniform principle. Reject this definition, and the
+popular national representation, loses at once its nationality, and
+becomes a mere dependency on the will of local corporations--a mere
+shuttlecock to be driven hither and thither by the arbitrary and
+conflicting legislation of an indefinite number of separate states.
+Adopt this meaning of the word "free," and the national government
+becomes capable of knowing its own bases of representation and power,
+and its own subjects of taxation. Reject this definition, and the
+government knows not whom it represents, or on whom to levy taxes for
+its support. Adopt this meaning of the word "free," and some three
+millions of native born, but now crushed human beings, become, with
+their posterity, men and citizens. Adopt this meaning--this _legal_
+meaning--this _only_ meaning that can, in this clause, be _legally_
+given to the word "free," and our constitution becomes, instead of a
+nefarious compact of conspirators against the rights of man, a
+consistent and impartial contract of government between _all_ "the
+people of the United States," for securing "to themselves and their
+posterity the blessings of liberty" and "justice."
+
+Again. We cannot unnecessarily place upon the constitution a meaning
+directly destructive of the government it was designed to establish. By
+giving to the word "free" the meaning universally given to it by our
+political papers of a similar character up to the time the constitution
+was adopted, we give to the government three millions of citizens, ready
+to fight and be taxed for its support. By giving to the word "free" a
+meaning correlative with slavery, we locate in our midst three millions
+of enemies; thus making a difference of six millions, (one third of our
+whole number,) in the physical strength of the nation. Certainly a
+meaning so suicidal towards the government, cannot be given to any part
+of the constitution, except the language be irresistibly explicit; much
+less can it be done, (as in this case it would be,) wantonly,
+unnecessarily, gratuitously, wickedly, and in violation of all previous
+usage.
+
+Again. If we look into the constitution itself for the meaning of the
+word "free," we find it to result from the distinction there recognized
+between citizens and aliens. If we look into the contemporary state
+constitutions, we still find the word "free" to express the political
+relation of the individual to the state, and not any property relation
+of one individual to another. If we look into the law of nature for the
+meaning of the word "free," we find that by that law all mankind are
+free. Whether, therefore, we look to the constitution itself, to the
+contemporary state constitutions, or to the law of nature, for the
+meaning of this word "free," the only meaning we shall find is one
+consistent with the personal liberty of all. On the other hand, if we
+are resolved to give the word a meaning correlative with slavery, we
+must go to the lawless code of the kidnapper to find such a meaning.
+Does it need any argument to prove to which of these different codes our
+judicial tribunals are bound to go, to find the meaning of the words
+used in a constitution, that is established professedly to secure
+liberty and justice?
+
+Once more. It is altogether a false, absurd, violent, unnatural and
+preposterous proceeding, in construing a political paper, which purports
+to establish men's relations to the state, and especially in construing
+the clause in it which fixes the basis of representation and taxation,
+to give to the words, which describe the persons to be represented and
+taxed, and which appropriately indicate those relations of men to the
+state which make them proper subjects of taxation and representation--to
+give to such words a meaning, which, instead of describing men's
+relations to the state, would describe merely a personal or property
+relation of one individual to another, which the state has nowhere else
+recognized, and which, if admitted to exist, would absolve the persons
+described from all allegiance to the state, would deny them all right to
+be represented, and discharge them from all liability to be taxed.
+
+But it is unnecessary to follow out this slave argument into all its
+ramifications. It sets out with nothing but assumptions, that are
+gratuitous, absurd, improbable, irrelevant, contrary to all previous
+usage, contrary to natural right, and therefore inadmissible. It
+conducts to nothing but contradictions, absurdities, impossibilities,
+indiscriminate slavery, anarchy, and the destruction of the very
+government which the constitution was designed to establish.
+
+The other clause relied on as a recognition and sanction, both of
+slavery and the slave trade, is the following:
+
+   "The migration or importation of such persons as any of the states
+   now existing shall think proper to admit, shall not be prohibited by
+   the congress prior to the year one thousand eight hundred and eight,
+   but a tax or duty may be imposed on such importation, not exceeding
+   ten dollars for each person."--(Art. 1, Sec. 9.)
+
+The slave argument, drawn from this clause, is, that the word
+"importation" applies only to property, and that it therefore implies,
+in this clause, that the persons to be imported are necessarily to be
+imported as property--that is, as slaves.
+
+But the idea that the word "importation" applies only to property, is
+erroneous. It applies correctly both to persons and things. The
+definition of the verb "import" is simply "to bring from a foreign
+country, or jurisdiction, or from another state, into one's own country,
+jurisdiction or state."--When we speak of "importing" things, it is true
+that we mentally associate with them the idea of property. But that is
+simply because _things_ are property, and not because the word "import"
+has any control, in that particular, over the character of the things
+imported. When we speak of importing "persons," we do not associate with
+them the idea of property, simply because "persons" are not property.
+
+We speak daily of the "importation of foreigners into the country;" but
+no one infers therefrom that they are brought in as slaves, but as
+passengers. A vessel imports, or brings in, five hundred passengers.
+Every vessel, or master of a vessel, that "brings in" passengers,
+"imports" them. But such passengers are not therefore slaves. A man
+imports his wife and children--but they are not therefore his slaves,
+or capable of being owned or sold as his property. A man imports a gang
+of laborers, to clear lands, cut canals, or construct railroads; but not
+therefore to be held as slaves. An innocent meaning must be given to the
+word, if it will bear one. Such is the legal rule.
+
+Even the popular understanding of the word "import," when applied to
+"persons," does not convey the idea of property. It is only when it is
+applied distinctly to "slaves," that any such idea is conveyed; and then
+it is the word "slaves," and not the word "import," that suggests the
+idea of property. Even slave traders and slave holders attach no such
+meaning to the word "import," when it is connected with the word
+"persons;" but only when it is connected with the word "slaves."
+
+In the case of Ogden _vs._ Saunders, (12 Wheaton, 332,) Chief Justice
+Marshall said, that in construing the constitution, "the intention of
+the instrument must prevail; that this intention must be collected from
+its words; that its words are to be understood in that sense in which
+they are _generally used_ by those for whom the instrument was
+intended." On this principle of construction, there is not the least
+authority for saying that this provision for "the importation of
+persons," authorized the importation of them as slaves. To give it this
+meaning, requires the same stretching of words _towards the wrong_, that
+is applied, by the advocates of slavery, to the words "service or
+labor," and the words "free" and "all other persons."
+
+Another reason, which makes it necessary that this construction should
+be placed upon the word "_importation_," is, that the clause contains no
+other word that describes the immigration of foreigners. Yet that the
+clause related to the immigration of foreigners _generally_, and that it
+restrained congress, (up to the year 1808,) from prohibiting the
+immigration of foreigners generally, there can be no doubt.
+
+The object, and the only _legal_ object, of the clause was to restrain
+congress from so exercising their "power of regulating commerce with
+foreign nations, and among the several states, and with the Indian
+tribes"--(which power has been decided by the supreme court of the
+United States, to include a power over navigation and the transportation
+of passengers in boats and vessels[21])--as to obstruct the introduction
+of new population into such of the states as were desirous of increasing
+their population in that manner. The clause does not imply at all, that
+the population, which the states were thus to "admit," was to be a slave
+population.
+
+The word "importation," (I repeat,) is the only word in the clause, that
+applies to persons that were to _come into_ the country from foreign
+nations. The word "_migration_" applies only to those who were to _go
+out from_ one of our own states or territories into another.
+"_Migration_" is the act of _going out_ from a state or country; and
+differs from immigration in this, that immigration is the act of _coming
+into_ a state or country. It is obvious, therefore, that the
+"_migration_," which congress are here forbidden to prohibit, is simply
+the _going out_ of persons from one of our own states or territories
+into another--(for that is the only "_migration_" that could come within
+the jurisdiction of congress)--and that it has no reference to persons
+_coming in_ from foreign countries to our own.
+
+If, then, "migration," as here used, has reference only to persons
+_going out_ from one state into another, the word "_importation_" is the
+only one in the clause that is applicable to foreigners coming into our
+country. This word "importation," then, being the only word that can
+apply to persons coming into the country, it must be considered as
+substantially synonymous with immigration, and must apply equally to
+_all_ "persons," that are "imported," or brought into the country as
+passengers. And if it applies equally to all persons, that are brought
+in as passengers, it does not _imply_ that any of those persons are
+slaves; for no one will pretend that this clause ever authorized the
+state governments to treat as slaves _all_ persons that were brought
+into the country as passengers. And if it did not authorize them to
+treat all such passengers as slaves, it did not authorize them to treat
+any of them as such; for it makes no discrimination between the
+different "persons" that should be thus imported.
+
+Again. The argument, that the allowance of the "importation" of
+"persons," implies the allowance of property in such persons, would
+imply a recognition of the validity of the slave laws of other
+countries; for unless slaves were obtained by valid purchase
+abroad--which purchase implies the existence and validity of foreign
+slave laws--the importer certainly could not claim to import his slaves
+as property; but he would appear, at the custom-house, as a mere pirate,
+claiming to have his captures legalized. So that, _according to the
+slave argument_, the simple use of the word "importation," in the
+constitution, as applied to "persons," bound our government, not only to
+the sanction and toleration of slavery in our own country, but to the
+recognition of the validity of the slave laws of other countries.
+
+But farther. The allowance of the "importation" of slaves, as such,
+under this clause of the constitution, would imply that congress must
+take actual, and even the most critical cognizance of the slave laws of
+other countries; and that they should allow neither the mere word of the
+person calling himself the owner, nor any thing short of the fullest and
+clearest legal proof, according to the laws of those countries, to be
+sufficient to enable him to enter his slaves, as property, at the
+custom-house; otherwise any masters of vessels, from England or France,
+as well as from Africa, might, on their arrival here, claim their
+passengers as slaves. Did the constitution, in this clause, by simply
+using the word "importation," instead of immigration, intend to throw
+upon the national government--at the hazard of making it a party to the
+illegal enslavement of human beings--the responsibility of
+investigating and deciding upon the legality and credibility of all the
+evidence that might be offered by the piratical masters of slave ships,
+to prove their valid purchase of, and their right of property in their
+human cargoes, according to the slave laws of the countries from which
+they should bring them? Such must have been the intention of the
+constitution, if it intended, (as it must, if it intended any thing of
+this kind,) that the fact of "importation" under the commercial
+regulations of congress, should be thereafter a sufficient authority for
+holding in slavery the persons imported.
+
+But perhaps it will be said that it was not the intention of the
+constitution, that congress should take any responsibility at all in the
+matter; that it was merely intended that whoever came into the country
+with a cargo of men, whom he called his slaves, should be permitted to
+bring them in on his own responsibility, and sell them as slaves for
+life to our people; and that congress were prohibited only from
+interfering, or asking any questions as to how he obtained them, or how
+they became his slaves. Suppose such were the intention of the
+constitution--what follows? Why, that the national government, the only
+government that was to be known to foreign nations, the only government
+that was to be permitted to regulate our commerce, or make treaties with
+foreign nations, the government on whom alone was to rest the
+responsibility of war with foreign nations, was bound to permit, (until
+1808,) all masters, both of our own ships and of the ships of other
+nations, to turn pirates, and make slaves of their passengers, whether
+Englishmen, Frenchmen, or any other civilized people, (for the
+constitution makes no distinction of "persons" on this point,) bring
+them into this country, sell them as slaves for life to our people, and
+thus make our country a rendezvous and harbor for pirates, involve us
+inevitably in war with every civilized nation in the world, cause
+ourselves to be outlawed as a people, and bring certain and swift
+destruction upon the whole nation; and yet this government, that had the
+sole responsibility of all our foreign relations, was constitutionally
+prohibited from interfering in the matter, or from doing any thing but
+lifting its hands in prayer to God and these pirates, that the former
+would so far depart, and the latter so far desist from their usual
+courses, as might be necessary to save us, until 1808, (after which time
+we would take the matter into our own hands, and, by prohibiting the
+causes of the danger, save ourselves,) from the just vengeance, which
+the rest of mankind were taking upon us.
+
+This is the kind of constitution, under which, (according to the slave
+argument,) we lived until 1808.
+
+But is such the real character of the constitution? By it, did we thus
+really avow to the world that we were a nation of pirates? that our
+territory should be a harbor for pirates? that our people were
+constitutionally licensed to enslave the people of all other nations,
+without discrimination, (for the instrument makes no discrimination,)
+whom they could either kidnap in their own countries, or capture on the
+high seas? and that we had even prohibited our only government that
+could make treaties with foreign nations, from making any treaty, until
+1808, with any particular nation, to exempt the people of that nation
+from their liability to be enslaved by the people of our own? The slave
+argument says that we did avow all this. If we really did, perhaps all
+that can be said of it now is, that it is very fortunate for us that
+other nations did not take us at our word. For if they had taken us at
+our word, we should, before 1808, have been among the nations that were.
+
+Suppose that, on the organization of our government, we had been charged
+by foreign nations, with having established a piratical government--how
+could we have rebutted the charge otherwise than by denying that the
+words "importation of persons" legally implied that the persons imported
+were slaves? Suppose that European ambassadors had represented to
+president Washington that their governments considered our constitution
+as licensing our people to kidnap the people of other nations, without
+discrimination, and bring them to the United States as slaves. Would he
+not have denied that the legal meaning of the clause did any thing more
+than secure the free introduction of foreigners as passengers and
+freemen? Or would he--_he_, the world-renowned champion of human
+rights--have indeed stooped to the acknowledgment that in truth he was
+the head of a nation of pirates, whose constitution did guarantee the
+freedom of kidnapping men abroad, and importing them as slaves? And
+would he, in the event of this acknowledgment, have sought to avert the
+destruction, which such an avowal would be likely to bring upon the
+nation, by pleading that, although such was the legal meaning of the
+words of our constitution, we yet had an understanding, (an honorable
+understanding!) among ourselves, that we would not take advantage of the
+license to kidnap or make slaves of any of the citizens of those
+civilized and powerful nations of Europe, that kept ships of war, and
+knew the use of gunpowder and cannon; but only the people of poor, weak,
+barbarous and ignorant nations, who were incapable of resistance and
+retaliation?
+
+Again. Even the allowance of the simple "_importation_" of slaves--(and
+that is the most that is _literally_ provided for--and the word
+"importation" must be construed to the letter,) would not, of itself,
+give any authority for the continuance of the slavery _after_
+"importation." If a man bring either property or persons into this
+country, he brings them in to abide the constitutional laws of the
+country; and not to be held according to the customs of the country from
+which they were brought. Were it not so, the Turk might import a harem
+of Georgian slaves, and, at his option, either hold them as his own
+property, or sell them as slaves to our own people, in defiance of any
+principles of freedom that should prevail amongst us. To allow this kind
+of "importation," would be to allow not merely the importation of
+foreign "persons," but also of foreign laws to take precedence of our
+own.
+
+Finally. The conclusion, that congress were restrained, by this clause,
+only from prohibiting the immigration of a foreign population, and not
+from prohibiting the importation of slaves, to be held as slaves after
+their importation--is the more inevitable, from the fact that the power
+given to congress of naturalizing foreigners, is entirely
+unlimited--except that their laws must be uniform throughout the United
+States. They have perfect power to pass laws that shall naturalize every
+foreigner without distinction, the moment he sets foot on our soil. And
+they had this power as perfectly prior to 1808, as since. And it is a
+power entirely inconsistent with the idea that they were bound to admit,
+and forever after to acknowledge as slaves, all or any who might be
+attempted to be brought into the country as such.
+
+One other provision of the constitution, viz: the one that "the United
+States shall protect each of the States against domestic violence"--has
+sometimes been claimed as a special pledge of impunity and succor to
+that kind of "violence," which consists in one portion of the people's
+standing constantly upon the necks of another portion, and robbing them
+of all civil privileges, and trampling upon all their personal rights.
+The argument seems to take it for granted, that the only proper way of
+protecting a "_republican_" state (for the states are all to be
+"republican,") against "domestic violence," is to plant men firmly upon
+one another's necks, (about in the proportion of two upon one,) arm the
+two with whip and spur, and then keep an armed force standing by to cut
+down those that are ridden, if they dare attempt to throw the riders.
+When the ridden portion shall, by this process, have been so far subdued
+as to bear the burdens, lashings and spurrings of the other portion
+without resistance, then the state will have been secured against
+"domestic violence," and the "republican form of government" will be
+completely successful.
+
+This version of this provision of the constitution presents a fair
+illustration of those new ideas of law and language, that have been
+invented for the special purpose of bringing slavery within the pale of
+the constitution.
+
+We have thus examined all those clauses of the constitution, that have
+been relied on to prove that the instrument recognizes and sanctions
+slavery. No one would have ever dreamed that either of these clauses
+alone, or that all of them together, contained so much as an allusion to
+slavery, had it not been for circumstances extraneous to the
+constitution itself. And what are these extraneous circumstances? They
+are the existence and toleration, in one portion of the country, of a
+crime that embodies within itself nearly all the other crimes, which it
+is the principal object of all our governments to punish and suppress; a
+crime which we have therefore no more right to presume that the
+constitution of the United States intended to sanction, than we have to
+presume that it intended to sanction all the separate crimes which
+slavery embodies, and our governments prohibit. Yet we have
+_gratuitously_ presumed that the constitution intended to sanction all
+these separate crimes, as they are comprehended in the general crime of
+slavery. And acting upon this gratuitous presumption, we have sought, in
+the words of the constitution, for some hidden meaning, which we could
+imagine to have been understood, by the initiated, as referring to
+slavery; or rather we have presumed its words to have been used as a
+kind of cypher, which, among confederates in crime, (as we presume its
+authors to have been,) was meant to stand for slavery. In this way, and
+in this way only, we pretend to have discovered, in the clauses that
+have been examined, a hidden, yet legal sanction of slavery. In the name
+of all that is legal, who of us are safe, if our government, instead of
+searching our constitution to find authorities for maintaining justice,
+are to continue to busy themselves in such prying and microscopic
+investigations, after such disguised and enigmatical authorities for
+such wrongs as that of slavery, and their pretended discoveries are to
+be adopted as law, which they are sworn to carry into execution?
+
+The clauses mentioned, taken either separately or collectively, neither
+assert, imply, sanction, recognize nor acknowledge any such thing as
+slavery. They do not even speak of it. They make no allusion to it
+whatever. They do not suggest, and, of themselves, never would have
+suggested the idea of slavery. There is, in the whole instrument, no
+such word as slave or slavery; nor any language that can legally be made
+to assert or imply the existence of slavery. There is in it nothing
+about color; nothing from which a liability to slavery can be predicated
+of one person more than another; or from which such a liability can be
+predicated of any person whatever. The clauses, that have been claimed
+for slavery, are all, in themselves, honest in their language, honest in
+their legal meaning; and they can be made otherwise only by such
+gratuitous assumptions against natural right, and such straining of
+words in favor of the wrong, as, if applied to other clauses, would
+utterly destroy every principle of liberty and justice, and allow the
+whole instrument to be perverted to every conceivable purpose of tyranny
+and crime.
+
+Let us now look at the _positive_ provisions of the constitution, _in
+favor of liberty_, and see whether they are not only inconsistent with
+any legal sanction of slavery, but also whether they must not, of
+themselves, have necessarily extinguished slavery, if it had had any
+constitutional existence to be extinguished.
+
+And, first, the constitution made all "the people of the United States"
+_citizens_ under the government to be established by it; for all of
+those, by whose authority the constitution declares itself to be
+established, must of course be presumed to have been made citizens under
+it. And whether they were entitled or not to the right of suffrage, they
+were at least entitled to all the personal liberty and protection, which
+the constitution professes to secure to "the people" generally.
+
+Who, then, established the constitution?
+
+The preamble to the constitution has told us in the plainest possible
+terms, to wit, that "We, _the people_ of the United States" "do ordain
+and establish this constitution," &c.
+
+By "the people of the United States," here mentioned, the constitution
+intends _all_ "the people" then permanently inhabiting the United
+States. If it does not intend all, who were intended by "the people of
+the United States?"--The constitution itself gives no answer to such a
+question.--It does not declare that "we, the _white_ people," or "we,
+the _free_ people," or "we, a _part_ of the people"--but that "we, _the_
+people"--that is, we the _whole_ people--of the United States, "do
+ordain and establish this constitution."
+
+If the _whole_ people of the United States were not recognized as
+citizens by the constitution, then the constitution gives no information
+as to what portion of the people were to be citizens under it. And the
+consequence would then follow that the constitution established a
+government that could not know its own citizens.
+
+We cannot go out of the constitution for evidence to prove who were to
+be citizens under it. We cannot go out of a written instrument for
+evidence to prove the parties to it, nor to explain its meaning, except
+the language of the instrument on that point be ambiguous. In this case
+there is no ambiguity. The language of the instrument is perfectly
+explicit and intelligible.
+
+Because the whole people of the country were not allowed to vote on the
+ratification of the constitution, it does not follow that they were not
+made citizens under it; for women and children did not vote on its
+adoption; yet they are made citizens by it, and are entitled as citizens
+to its protection; and the state governments cannot enslave them. The
+national constitution does not limit the right of citizenship and
+protection by the right of suffrage, any more than do the state
+constitutions. Under the most, probably under all the state
+constitutions, there are persons who are denied the right of
+suffrage--but they are not therefore liable to be enslaved.
+
+Those who did take part in the actual ratification of the constitution,
+acted in behalf of, and, _in theory_, represented the authority of the
+whole people. Such is the theory in this country wherever suffrage is
+confined to a few; and such is the virtual declaration of the
+constitution itself. The declaration that "we _the people_ of the United
+States do ordain and establish this constitution," is equivalent to a
+declaration that those who actually participated in its adoption, acted
+in behalf of all others, as well as for themselves.
+
+Any private intentions or understandings, on the part of one portion of
+the people, as to who should be citizens, cannot be admitted to prove
+that such portion only were intended by the constitution, to be
+citizens; for the intentions of the other portion would be equally
+admissible to exclude the exclusives. The mass of the people can claim
+citizenship under the constitution, on no other ground than as being a
+part of "the people of the United States;" and such claim necessarily
+admits that all other "people of the United States" are equally
+citizens.
+
+That the designation, "We the people of the United States," included the
+whole people that properly belonged to the United States, is also proved
+by the fact that no exception is made in any other part of the
+instrument.
+
+If the constitution had intended that any portion of "the people of the
+United States" should be excepted from its benefits, disfranchised,
+outlawed, enslaved, it would of course have designated these exceptions
+with such particularity as to make it sure that none but the true
+persons intended would be liable to be subjected to such wrongs. Yet,
+instead of such particular designation of the exceptions, we find no
+designation whatever of the kind. But on the contrary, we _do_ find, in
+the preamble itself, a sweeping declaration to the effect that there are
+no such exceptions; that the whole people of the United States are
+citizens, and entitled to liberty, protection, and the dispensation of
+justice under the constitution.
+
+If it be admitted that the constitution designated its own citizens,
+then there is no escape from the conclusion that it designated the
+whole people of the United States as such. On the other hand, if it be
+denied that the constitution designated its own citizens, one of these
+two conclusions must follow, viz., 1st, that it has no citizens; or, 2d,
+that it has left an unrestrained power in the _state_ governments to
+determine who may, and who may not, be citizens of the _United States_
+government. If the first of these conclusions be adopted, viz., that the
+constitution has no citizens, then it follows that there is really no
+United States government, except on paper--for there would be as much
+reason in talking of an army without men, as of a government without
+citizens. If the second conclusion be adopted, viz., that the state
+governments have the right of determining who may, and who may not be
+citizens of the United States government, then it follows that the state
+governments may at pleasure destroy the government of the United States,
+by enacting that none of their respective inhabitants shall be citizens
+of the United States.
+
+This latter is really the doctrine of some of the slave states--the
+"state-rights" doctrine, so called. That doctrine holds that the general
+government is merely a confederacy or league of the several states, _as
+states_; not a government established by the people, _as people_. This
+"state-rights" doctrine has been declared unconstitutional by reiterated
+opinions of the supreme court of the United States;[22] and, what is of
+more consequence, it is denied also by the preamble to the constitution
+itself, which declares that it is "the people," (and not the state
+governments,) that ordain and establish it. It is true also that the
+constitution was ratified by conventions of the people, and not by the
+legislatures of the states. Yet because the constitution was ratified by
+conventions of the states _separately_, (as it naturally would be for
+convenience, and as it necessarily must have been for the reason that
+none but the people of the respective states could recall any portion of
+the authority they had, delegated to their state governments, so as to
+grant it to the United States government,)--yet because it was thus
+ratified, I say, some of the slave states have claimed that the general
+government was a league of states, instead of a government formed by
+"the people." The true reason why the slave states have held this
+theory, probably is, because it would give, or appear to give, to the
+states the right of determining who should, and who should not, be
+citizens of the United States. They probably saw that if it were
+admitted that the constitution of the United States had designated its
+own citizens, it had undeniably designated the whole people of the then
+United States as such; and that, as a state could not enslave a citizen
+of the United States, (on account of the supremacy of the constitution
+of the United States,) it would follow that there could be no
+constitutional slavery in the United States.
+
+Again. If the constitution was established by authority of all "the
+people of the United States," they were all legally parties to it, and
+citizens under it. And if they were parties to it, and citizens under
+it, it follows that neither they, _nor their posterity_, nor any nor
+either of them, can ever be legally enslaved within the territory of the
+United States; for the constitution declares its object to be, among
+other things, "to secure the blessings of liberty to _ourselves, and our
+posterity_." This purpose of the national constitution is a law
+paramount to all state constitutions; for it is declared that "this
+constitution, and the laws of the United States that shall be made in
+pursuance thereof, and all treaties made, or which shall be made under
+the authority of the United States, shall be the supreme law of the
+land; and the judges _in every state_ shall be bound thereby, any thing
+in the constitution or laws of any state to the contrary
+notwithstanding."
+
+No one, I suppose, doubts that if the state governments were to abolish
+slavery, the slaves would then, without further legislation, become
+citizens of the United States. Yet, in reality, if they would become
+citizens then, they are equally citizens now--else it would follow that
+the state governments had an arbitrary power of making citizens of the
+United States; or--what is equally absurd--it would follow that
+disabilities, arbitrarily imposed by the state governments, upon native
+inhabitants of the country, were, of themselves, sufficient to deprive
+such inhabitants of their citizenship, which would otherwise have been
+conferred upon them by the constitution of the United States. To suppose
+that the state governments are thus able, arbitrarily, to keep in
+abeyance, or arbitrarily to withhold from any of the inhabitants of the
+country, any of the benefits or rights which the national constitution
+intended to confer upon them, would be to suppose that the state
+constitutions were paramount to the national one. The conclusion,
+therefore, is inevitable, that the state governments have no power to
+withhold the rights of citizenship from any who are otherwise competent
+to become citizens. And as all the native born inhabitants of the
+country are at least competent to become citizens of the United States,
+(if they are not already such,) the state governments have no power, by
+slave laws or any other, to withhold the rights of citizenship from
+them.
+
+But however clear it may be, that the constitution, in reality, made
+citizens of all "the people of the United States," yet it is not
+necessary to maintain that point, in order to prove that the
+constitution gave no guaranty or sanction to slavery--for if it had not
+already given citizenship to all, it nevertheless gave to the government
+of the United States unlimited power of offering citizenship to all. The
+power given to the government of passing naturalization laws, is
+entirely unrestricted, except that the laws must be uniform throughout
+the country. And the government have undoubted power to offer
+naturalization and citizenship to every person in the country, whether
+foreigner or native, who is not already a citizen. To suppose that we
+have in the country three millions of native born inhabitants, not
+citizens, and whom the national government has no power to make
+citizens, when its power of naturalization is entirely unrestricted, is
+a palpable contradiction.
+
+But further. The constitution of the United States must be made
+consistent with itself throughout; and if any of its parts are
+irreconcilable with each other, those parts that are inconsistent with
+liberty, justice and right, must be thrown out for inconsistency.
+Besides the provisions already mentioned, there are numerous others, in
+the constitution of the United States, that are entirely and
+irreconcilably inconsistent with the idea that there either was, or
+could be, any constitutional slavery in this country.
+
+Among these provisions are the following:
+
+_First._ Congress have power to lay a capitation or poll tax upon the
+people of the country. Upon whom shall this tax be levied? and who must
+be held responsible for its payment? Suppose a poll tax were laid upon a
+man, whom the state laws should pretend to call a slave. Are the United
+States under the necessity of investigating, or taking any notice of the
+fact of slavery, either for the purpose of excusing the man himself from
+the tax, or of throwing it upon the person claiming to be his owner?
+Must the government of the United States find a man's pretended owner,
+or only the man himself, before they can tax him? Clearly the United
+States are not bound to tax any one but the individual himself, or to
+hold any other person responsible for the tax. Any other principle would
+enable the state governments to defeat any tax of this kind levied by
+the United States. Yet a man's liability to be held personally
+responsible for the payment of a tax, levied upon himself by the
+government of the United States, is inconsistent with the idea that the
+government is bound to recognize him as not having the ownership of his
+own person.
+
+   _Second._ "The congress shall have power to regulate commerce with
+   foreign nations, and among the several states, and with the Indian
+   tribes."
+
+This power is held, by the supreme court of the United States, to be an
+exclusive one in the general government; and it obviously must be so, to
+be effectual--for if the states could also interfere to regulate it, the
+states could at pleasure defeat the regulations of congress.
+
+Congress, then, having the exclusive power of regulating this commerce,
+they only (if any body) can say who may, and who may not, carry it on;
+and probably even they have no power to discriminate arbitrarily between
+individuals.--But, in no event, have the _state_ governments any right
+to say who may, or who may not, carry on "commerce with foreign
+nations," or "among the several states," or "with the Indian tribes."
+Every individual--naturally competent to make contracts--whom the state
+laws declare to be a slave, probably has, and certainly may have, under
+the regulations of congress, as perfect a right to carry on "commerce
+with foreign nations, and among the several states, and with the Indian
+tribes," as any other citizen of the United States can have--"any thing
+in the constitution or laws of any state to the contrary
+notwithstanding." Yet this right of carrying on commerce is a right
+entirely inconsistent with the idea of a man's being a slave.
+
+Again. It is a principle of law that the right of traffic is a natural
+right, and that all commerce (that is intrinsically innocent) is
+therefore lawful, except what is prohibited by positive legislation.
+Traffic with the slaves, either by people of foreign nations, or by
+people belonging to other states than the slaves, has never (so far as I
+know) been prohibited by congress, which is the only government, (if
+any,) that has power to prohibit it. Traffic with the slaves is
+therefore as lawful at this moment, under the constitution of the
+United States, as is traffic with their masters; and this fact is
+entirely inconsistent with the idea that their bondage is
+constitutional.
+
+   _Third._ "The congress shall have power to establish post offices and
+   post roads."
+
+Who, but congress, have any right to say who may send, or receive
+letters by the United States posts? Certainly no one. They have
+undoubted authority to permit any one to send and receive letters by
+their posts--"any thing in the constitutions or laws of the states to
+the contrary notwithstanding." Yet the right to send and receive letters
+by post, is a right inconsistent with the idea of a man's being a slave.
+
+   _Fourth._ "The congress shall have power to promote the progress of
+   science and useful arts, by securing for limited times to authors and
+   inventors the exclusive right to their respective writings and
+   discoveries."
+
+Suppose a man, whom a state may pretend to call a slave, should make an
+invention or discovery--congress have undoubted power to secure to such
+individual himself, by patent, the "_exclusive_"--(mark the word)--the
+"exclusive right" to his invention or discovery. But does not this
+"_exclusive right_" in the inventor himself, exclude the right of any
+man, who, under a state law, may claim to be the owner of the inventor?
+Certainly it does. Yet the slave code says that whatever is a slave's is
+his owner's. This power, then, on the part of congress, to secure to an
+individual the exclusive right to his inventions and discoveries, is a
+power inconsistent with the idea that that individual himself, and all
+he may possess, are the property of another.
+
+   _Fifth._ "The congress shall have power to declare war, grant letters
+   of marque and reprisal, and make rules concerning captures on land
+   and water;" also "to raise and support armies;" and "to provide and
+   maintain a navy."
+
+Have not congress authority, under these powers, to enlist soldiers and
+sailors, _by contract with themselves_, and to pay them their wages,
+grant them pensions, and secure their wages and pensions to their own
+use, without asking the permission either of the state governments, or
+of any individuals whom the state governments may see fit to recognize
+as the owners of such soldiers and sailors? Certainly they have, in
+defiance of all state laws and constitutions whatsoever; and they have
+already asserted that principle by enacting that pensions, paid by the
+United States to their soldiers, shall not be liable to be taken for
+debt, under the laws of the states. Have they not authority also to
+grant letters of marque and reprisal, and to secure the prizes, to a
+ship's crew of blacks, as well as of whites? To those whom the State
+governments call slaves, as well as to those whom the state governments
+call free?--Have not congress authority to make contracts, for the
+defence of the nation, with any and all the inhabitants of the nation,
+who may be willing to perform the service? Or are they obliged first to
+ask and obtain the consent of those private individuals who may pretend
+to own the inhabitants of this nation? Undoubtedly congress have the
+power to contract with whom they please, and to secure wages and
+pensions to such individuals, in contempt of all state authority. Yet
+this power is inconsistent with the idea that the constitution
+recognizes or sanctions the legality of slavery.
+
+   _Sixth._ "The congress shall have power to provide for the
+   organizing, _arming_ and disciplining the _militia_, and for
+   governing such part of them as may be employed in the service of the
+   United States, reserving to the states respectively the appointment
+   of the officers, and the authority of training the militia, according
+   to the discipline prescribed by congress." Also "to provide for
+   calling forth the militia to execute the laws of the Union, suppress
+   insurrections, and repel invasions."
+
+Have not congress, under these powers, as undoubted authority to enroll
+in the militia, and "_arm_" those whom the states call slaves, and
+authorize them always to keep their arms by them, even when not on duty,
+(that they may at all times be _ready_ to be "called forth" "to execute
+the laws of the Union, suppress insurrections, and repel invasions,")
+as they have thus to enroll and arm those whom the states call free? Can
+the state governments determine who may, and who may not compose the
+militia of the "United States?"
+
+Look, too, at this power, in connection with the second amendment to the
+constitution; which is in these words:
+
+   "A well regulated militia being necessary to the security of a free
+   state, the right of _the people_ to keep and bear arms shall not be
+   infringed."
+
+These provisions obviously recognize the natural right of all men "to
+keep and bear arms" for their personal defence; and prohibit both
+congress and the state governments from infringing the right of "the
+people"--that is, of _any_ of the people--to do so; and more especially
+of any whom congress have power to include in their militia. This right
+of a man "to keep and bear arms," is a right palpably inconsistent with
+the idea of his being a slave. Yet the right is secured as effectually
+to those whom the states presume to call slaves, as to any whom the
+states condescend to acknowledge free.
+
+Under this provision any man has a right either to give or sell arms to
+those persons whom the states call slaves; and there is no
+_constitutional_ power, in either the national or state governments,
+that can punish him for so doing; or that can take those arms from the
+slaves; or that can make it criminal for the slaves to use them, if,
+from the inefficiency of the laws, it should become necessary for them
+to do so, in defence of their own lives or liberties; for this
+constitutional right to keep arms implies the constitutional right to
+use them, if need be, for the defence of one's liberty or life.
+
+_Seventh._ The constitution of the United States declares that "no state
+shall pass _any_ law impairing the obligation of contracts."
+
+"The obligation of contracts," here spoken of, is, of necessity, the
+_natural obligation_; for that is the only real or true obligation that
+any contracts can have. It is also the only obligation, which courts
+recognize in any case, except where legislatures arbitrarily interfere
+to impair it. But the prohibition of the constitution is upon the
+states' passing any law whatever that shall impair the natural
+obligation of men's contracts. Yet, if slave laws were constitutional,
+they would effectually impair the obligation of all contracts entered
+into by those who are made slaves; for the slave laws must necessarily
+hold that all a slave's contracts are void.
+
+This prohibition upon the states to pass _any_ law impairing the natural
+obligation of men's contracts, implies that all men have a
+constitutional right to enter into all contracts that have a natural
+obligation. It therefore _secures_ the constitutional right of all men
+to enter into such contracts, and to have them respected by the state
+governments. Yet this constitutional right of all men to enter into all
+contracts that have a natural obligation, and to have those contracts
+recognized by law as valid, is a right plainly inconsistent with the
+idea that men can constitutionally be made slaves.
+
+This provision therefore absolutely prohibits the passage of slave laws,
+because laws that make men slaves must necessarily impair the obligation
+of all their contracts.
+
+_Eighth._ Persons, whom some of the state governments recognize as
+slaves, are made eligible, by the constitution of the United States, to
+the office of president of the United States. The constitutional
+provision on this subject is this:
+
+   "No person, except a natural born citizen, or a citizen of the United
+   States at the time of the adoption of this constitution, shall be
+   eligible to the office of president; neither shall any person be
+   eligible to that office, who shall not have attained the age of
+   thirty-five years, and been fourteen years a resident of the United
+   States."
+
+According to this provision, _all_ "persons",[23] who have resided
+within the United States fourteen years, have attained the age of
+thirty-five years, and are either _natural born citizens, or were
+citizens of the United States at the time of the adoption of the
+constitution_, are eligible to the office of president. No other
+qualifications than these being required by the constitution, no others
+can be legally demanded. The only question, then, that can arise, is as
+to the word "citizen." Who are the persons that come within this
+definition, as here used? The clause itself divides them into two
+classes, to wit, the "natural born," and those who were "citizens of the
+United States at the time of the adoption of the constitution." In
+regard to this latter class, it has before been shown, from the preamble
+to the constitution, that all who were "people of the United States,"
+(that is, permanent inhabitants,) at the time the constitution was
+adopted, were made citizens by it. And this clause, describing those
+eligible to the office of president, implies the same thing. This is
+evident; for it speaks of those who were "citizens of the _United
+States_ at the time of the adoption of the constitution." Now there
+clearly could have been no "citizens of the United States, at the time
+of the adoption of the constitution," unless they were made so by the
+constitution itself; for there were _no_ "citizens of the _United
+States_" _before_ the adoption of the constitution. The Confederation
+had no citizens. It was a mere league between the state governments. The
+separate states belonging to the confederacy had each their own citizens
+respectively. But the confederation itself, as such, had no citizens.
+There were, therefore, no "citizens of the United States," (but only
+citizens of the respective states,) before the adoption of the
+constitution.--Yet this clause asserts that immediately on the adoption,
+or "at the time of the adoption of this constitution," there _were_
+"citizens of the United States." Those, then, who were "citizens of the
+United States at the time of the adoption of the constitution," were
+necessarily those, and only those, who had been made so by the adoption
+of the constitution; because they could have become citizens at that
+precise "time" in no other way. If, then, any persons were made
+citizens by the adoption of the constitution, who were the _individuals_
+that were thus made citizens? They were "the people of the United
+States," of course--as the preamble to the constitution virtually
+asserts. And if "the people of the United States" were made citizens by
+the adoption of the constitution, then _all_ "the people of the United
+States" were necessarily made citizens by it--for no discrimination is
+made by the constitution between different individuals, "people of the
+United States"--and there is therefore no means of determining who were
+made citizens by the adoption of the constitution, unless _all_ "the
+people of the United States" were so made. Any "person," then, who was
+one of "the people of the United States" "at the time of the adoption of
+this constitution," and who is thirty-five years old, and has resided
+fourteen years within the United States, is eligible to the office of
+president of the United States. And if every such person be eligible,
+under the constitution, to the office of president of the United States,
+the constitution certainly does not recognize them as slaves.
+
+The other class of citizens, mentioned as being eligible to the office
+of president, consists of the "natural born citizens." Here is an
+implied assertion that _natural birth_ in the country gives the right of
+citizenship. And if it gives it to one, it necessarily gives it to
+all--for no discrimination is made; and if all persons, born in the
+country, are not entitled to citizenship, the constitution has given us
+no test by which to determine who of them are entitled to it.
+
+Every person, then, born in the country, and that shall have attained
+the age of thirty-five years, and been fourteen years a resident within
+the United States, is eligible to the office of president. And if
+eligible to that office, the constitution certainly does not recognize
+him as a slave.
+
+Persons, who are "citizens" of the United States, according to the
+foregoing definitions, are also eligible to the offices of
+representative and senator of the United States; and therefore cannot be
+slaves.
+
+   _Ninth._ The constitution declares that "the trial of all crimes,
+   except in cases of impeachment, shall be _by jury_."--Also that
+   "Treason against the United States shall consist only in levying war
+   against them, or in adhering to their enemies, giving them aid and
+   comfort."
+
+It is obvious that slaves, if we had any, might "levy war against the
+United States," and might also "adhere to their enemies, giving them aid
+and comfort." It may, however, be doubted whether they could commit the
+crime of treason--for treason implies a breach of fidelity, trust or
+allegiance, where fidelity, trust or allegiance is due. And it is very
+clear that slaves could owe allegiance, trust or fidelity, neither to
+the United States, nor to the state governments; for allegiance is due
+to a government only from those who are protected by it. Slaves could
+owe to our governments nothing but resistance and destruction. If
+therefore they were to levy war against the United States, they might
+not perhaps be liable to the technical charge of treason; although there
+would, in reality, be as much treason in their act, as there would of
+any other crime--for there would, in truth, be neither legal nor moral
+crime of any kind in it. Still, the government would be compelled, in
+order to protect itself against them, to charge them with some crime or
+other--treason, murder, or something else. And this charge, whatever it
+might be, would have to be tried by a jury. And what (in criminal
+cases,) is the "trial by jury?" It is a trial, both of the law and the
+fact, by the "peers," or equals, of the person tried. Who are the
+"peers" of a slave? None, evidently, but slaves. If, then, the
+constitution recognizes any such class of persons, in this country, as
+slaves, it would follow that for any crime committed by them against the
+United States, they must be tried, both on the law and the facts, by a
+jury of slaves. The result of such trials we can readily imagine.
+
+Does this look as if the constitution guarantied, or even recognized the
+legality of slavery?
+
+   _Tenth._ The constitution declares that "The privilege of the writ of
+   _habeas corpus_ shall not be suspended, unless when, in cases of
+   rebellion or invasion, the public safety may require it."
+
+The privilege of this writ, wherever it is allowed, is of itself
+sufficient to make slavery impossible and illegal. The object and
+prerogative of this writ are to secure to all persons their natural
+right to personal liberty, against all restraint except from the
+government; and even against restraints by the government itself, unless
+they are imposed in conformity with established general laws, and upon
+the charge of some legal offence or liability. It accordingly liberates
+all who are held in custody against their will, (whether by individuals
+or the government,) unless they are held _on some formal writ or
+process, authorized by law, issued by the government, according to
+established principles, and charging the person held by it with some
+legal offence or liability_. The principle of the writ seems to be, that
+no one shall be restrained of his natural liberty, unless these three
+things conspire; 1st, that the restraint be imposed by _special command
+of the government_; 2d, that there be a general law authorizing
+restraints for specific causes; and, 3d, that the government, previously
+to issuing process for restraining any particular individual, shall
+itself, by its proper authorities, take express cognizance of, and
+inquire cautiously into the facts of each case, and ascertain, by
+reasonable evidence, that the individual has brought himself within the
+liabilities of the general law. All these things the writ of _habeas
+corpus_ secures to be done, before it will suffer a man to be restrained
+of his liberty; for the writ is a mandate to the person holding another
+in custody, commanding him to bring his prisoner before the court, and
+show the authority by which it holds him. Unless he then exhibit a legal
+precept, warrant or writ, issued by, and bearing the seal of the
+government, specifying a legal ground for restraining the prisoner, and
+authorizing or requiring him to hold him in custody, he will be ordered
+to let him go free. Hence all the keepers of prisons, in order to hold
+their prisoners against the authority of this writ, are required, in the
+case of each prisoner, to have a written precept or order, bearing the
+seal of the government, and issued by the proper authority, particularly
+describing the prisoner by name or otherwise, and setting forth the
+legal grounds of his imprisonment, and requiring the keeper of the
+prison to hold him in his custody.
+
+Now the master does not hold his slave in custody by virtue of any
+formal or legal writ or process, either authorized by law, or issued by
+the government, or that charges the slave with any legal offence or
+liability. A slave is incapable of incurring any legal liability, or
+obligation to his master. And the government could, with no more
+consistency, grant a writ or process to the master, to enable him to
+hold his slave, than it could to enable him to hold his horse. It simply
+recognizes his right of property in his slave, and then leaves him at
+liberty to hold him by brute force, if he can, as he holds his ox, or
+his horse--and not otherwise. If the slave escape, or refuse to labor,
+the slave code no more authorizes the government to issue legal process
+against the slave, to authorize the master to catch him, or compel him
+to labor, than it does against a horse for the same purpose.--The slave
+is held simply as property, by individual force, without legal process.
+But the writ of _habeas corpus_ acknowledges no such principle as the
+right of property in man. If it did, it would be perfectly impotent in
+all cases whatsoever; because it is a principle of law, in regard to
+property, that simple possession is _prima facie_ evidence of ownership;
+and therefore any man, who was holding another in custody, could defeat
+the writ by pleading that he owned his prisoner, and by giving, as proof
+of ownership, the simple fact that he was in possession of him. If,
+therefore, the writ of _habeas corpus_ did not, of itself, involve a
+denial of the right of property in man, the fact stated in it, that one
+man was holding another in custody, would be _prima facie_ evidence
+that he owned him, and had a right to hold him; and the writ would
+therefore carry an absurdity in its face.
+
+The writ of _habeas corpus_, then, _necessarily_ denies the right of
+property in man. And the constitution, by declaring, without any
+discrimination of persons, that "the privilege of this writ shall not be
+suspended,"--that is, shall not be denied to any human being--has
+declared that, under the constitution, there can be no right of property
+in man.
+
+This writ was unquestionably intended as a great constitutional guaranty
+of personal liberty. But unless it denies the right of property in man,
+it in reality affords no protection to any of us against being made
+slaves. If it does deny the right of property in man, the slave is
+entitled to the privilege of the writ; for he is held in custody by his
+master, simply on the ground of property.
+
+Mr. Christian, one of Blackstone's editors, says that it is this writ
+that makes slavery impossible in England. It was on this writ, that
+Somerset was liberated. The writ, in fact, asserts, as a great
+constitutional principle, the natural right of personal liberty. And the
+privilege of the writ is not confined to citizens, but extends to all
+human beings.[24] And it is probably the only absolute guaranty, that
+our national constitution gives to foreigners and aliens, that they
+shall not, on their arrival here, be enslaved by those of our state
+governments that exhibit such propensities for enslaving their
+fellow-men. For this purpose, it is a perfect guaranty to people who
+come here from any part of the world. And if it be such a guaranty to
+foreigners and aliens, is it no guaranty to those born under the
+constitution? Especially when the constitution makes no discrimination
+of persons?
+
+   _Eleventh._ "The United States shall guaranty to every state in this
+   union a republican form of government, and shall protect each of
+   them against invasion; and, on application of the legislature, or of
+   the executive, (when the legislature cannot be convened,) against
+   domestic violence."
+
+Mark the strength and explicitness of the first clause of this section,
+to wit, "The United States _shall guarantee_ to every state in this
+union a republican form of government." Mark also especially that this
+guaranty is one of liberty, and not of slavery.
+
+We have all of us heretofore been compelled to hear, from individuals of
+slaveholding principles, many arrogant and bombastic assertions,
+touching the constitutional "_guaranties_" given to _slavery_; and
+persons, who are in the habit of taking their constitutional law from
+other men's mouths, instead of looking at the constitution for
+themselves, have probably been led to imagine that the constitution had
+really given such guaranties in some explicit and tangible form. We
+have, nevertheless, seen that all those pretended guaranties are at most
+nothing but certain vague hints, insinuations, ciphers and innuendoes,
+that are imagined to be covered up under language which legally means
+nothing of the kind. But, in the clause now cited, we do have an
+explicit and peremptory "guaranty," depending upon no implications,
+inferences or conjectures, and couched in no uncertain or ambiguous
+terms. And what is this guaranty? Is it a guaranty of slavery? No. It is
+a guaranty of something flatly incompatible with slavery: a guaranty of
+"a republican form of government to every state in this union."
+
+And what is "a republican form of government?" It is where the
+government is a commonwealth--the property of the public, of the mass of
+the people, or of the entire people. It is where the government is made
+up of, and controlled by the combined will and power of the public, or
+the mass of the people--and where, of natural consequence, it will have,
+for its object, the protection of the rights of all. It is indispensable
+to a republican form of government, that the public, the mass of the
+people, if not the entire people, participate in the grant of powers to
+the government, and in the protection afforded by the government. It is
+impossible, therefore, that a government, under which any considerable
+number of the people, (if indeed any number of the people,) are
+disfranchised and enslaved, can be a republic. A slave government is an
+oligarchy; and one too of the most arbitrary and criminal character.
+
+Strange that men, who have eyes capable of discovering in the
+constitution so many covert, implied and insinuated guaranties of crime
+and slavery, should be blind to the legal import of so open, explicit
+and peremptory a guaranty of freedom, equality and right.
+
+Even if there had really been, in the constitution, two such
+contradictory guaranties, as one of liberty or republicanism in every
+state of the Union, and another of slavery in every state where one
+portion of the people might succeed in enslaving the rest, one of these
+guaranties must have given way to the other--for, being plainly
+inconsistent with each other, they could not have stood together. And it
+might safely have been left either to legal or to moral rules to
+determine which of the two should prevail--whether a provision to
+perpetuate slavery should triumph over a guaranty of freedom.
+
+But it is constantly asserted, in substance, that there is "_no
+propriety_" in the general government's interfering in the local
+governments of the states. Those who make this assertion appear to
+regard a state as a single individual, capable of managing his own
+affairs, and of course unwilling to tolerate the intermeddling of
+others. But a state is not an individual. It is made up of large numbers
+of individuals, each and all of whom, amid the intestine mutations and
+strifes to which states are subject, are liable, at some time or other,
+to be trampled upon by the strongest party, and may therefore reasonably
+choose to secure, in advance, some external protection against such
+emergencies, by making reciprocal contracts with other people similarly
+exposed in the neighboring states. Such contracts for mutual succor and
+protection, are perfectly fit and proper for any people who are so
+situated as to be able to contribute to each other's security. They are
+as fit and proper as any other political contracts whatever; and are
+founded on precisely the same principle of combination for mutual
+defence--for what are any of our political contracts and forms of
+government, but contracts between man and man for mutual protection
+against those who may conspire to injure either or all of them? But
+these contracts, fit and proper between all men, are peculiarly
+appropriate to those, who, while they are members of various local and
+subordinate associations, are, at the same time, united for specific
+purposes, under one general government. Such a mutual contract, between
+the people of all the states, is contained in this clause of the
+constitution. And it gives to them all an additional guaranty for their
+liberties.
+
+Those who object to this guaranty, however, choose to overlook all these
+considerations, and then appear to imagine that their notions of
+"propriety" on this point, can effectually expunge the guaranty itself
+from the constitution. In indulging this fancy, however, they
+undoubtedly overrate the legal, and perhaps also the moral effect of
+such superlative fastidiousness; for even if there were "_no propriety_"
+in the interference of the general government to maintain a republican
+form of government in the states, still, the unequivocal pledge to that
+effect, given in the constitution, would nevertheless remain an
+irresistible rebutter to the allegation that the constitution intended
+to guaranty its opposite, slavery, an oligarchy, or a despotism. It
+would, therefore, entirely forbid all those inferences and implications,
+drawn by slaveholders, from those other phrases, which they quote as
+guaranties of slavery.[25]
+
+But the "propriety," and not only the propriety, but the necessity of
+this guaranty, may be maintained on still other grounds.
+
+One of these grounds is, that it would be impossible, consistently with
+the other provisions of the constitution, that the general government
+itself could be republican, unless the state governments were republican
+also. For example. The constitution provides, in regard to the choice of
+congressional representatives, that "the electors in each state shall
+have the qualifications requisite for electors of the most numerous
+branch of the state legislature." It was indispensable to the internal
+quiet of each state, that the same body of electors, who should
+participate in the suffrage of the state governments, should participate
+also in the suffrage of the national one--and _vice versa_, that those
+who should participate in the national suffrage, should also participate
+in that of the state. If the general and state constitutions had each a
+different body of electors within each state, it would obviously give
+rise at once to implacable and irreconcilable feuds, that would result
+in the overthrow of one or the other of the governments within the
+state. Harmony or inveterate conflict was the only alternative. As
+conflict would necessarily result in the destruction of one of the
+governments, harmony was the only mode by which both could be preserved.
+And this harmony could be secured only by giving to the same body of
+electors, suffrage in both the governments.
+
+If, then, it was indispensable to the existence and authority of both
+governments, within the territory of each state, that the same body, and
+only the same body of electors, that were represented in one of the
+governments, should be represented in the other, it was clearly
+indispensable, in order that the national one should be republican, that
+the state governments should be republican also. Hence the interest
+which the nation at large have in the republicanism of each of the state
+governments.
+
+It being necessary that the suffrage under the national government,
+within each state, should be the same as for the state government, it is
+apparent that unless the several state governments were all formed on
+one general plan, or unless the electors of all the states were united
+in the acknowledgement of some general controlling principle, applicable
+to both governments, it would be impossible that they could unite in the
+maintenance of a general government that should act in harmony with the
+state governments; because the same body of electors, that should
+support a despotic government in the state, could not consistently or
+cordially unite, or even unite at all, in the support of a republican
+government for the nation. If one portion of the state governments
+should be republican, like Vermont, where suffrage is open to all--and
+another portion should be oligarchies, like South Carolina, and the
+other slave states--another portion limited monarchies, like
+England--another portion ecclesiastical, like that of the Pope of Rome,
+or that of the ancient Jews--and another portion absolute despotisms,
+like that of Nicholas, in Russia, or that of Francia, in Paraguay,--and
+the same body, and only the same body, of electors, that sustained each
+of these governments at home, should be represented in the national
+government, each state would send into the national legislature the
+representatives of its own peculiar system of government; and the
+national legislature, instead of being composed of the representatives
+of any one theory, or principle of government, would be made up of the
+representatives of all the various theories of government that prevailed
+in the different states--from the extreme of democracy to the extreme of
+despotism. And each of these various representatives would be obliged to
+carry his local principles into the national legislature, else he could
+not retain the confidence of his peculiar constituents. The consequence
+would be, that the national legislature would present the spectacle of a
+perfect Babel of discordant tongues, elements, passions, interests and
+purposes, instead of an assembly united for the accomplishment of any
+agreed or distinct object.
+
+Without some distinct and agreed object as a bond of union, it would
+obviously be impracticable for any general union of the whole people to
+subsist; and that bond of union, whatever it be, must also harmonize
+with the principles of each of the state governments, else there would
+be a collision between the general and state governments.
+
+Now the great bond of union, agreed upon in the general government, was
+"the rights of man"--expressed in the national constitution by the terms
+"liberty and justice." What other bond could have been agreed upon? On
+what other principle of government could they all have united? Could
+they have united to sustain the divine right of kings? The feudal
+privileges of nobles? Or the supremacy of the Christian, Mahometan, or
+any other church? No. They all denied the divine right of kings, and the
+feudal rights of nobles; and they were of all creeds in religion. But
+they were agreed that all men had certain natural, inherent, essential
+and inalienable rights, among which were life, liberty and the pursuit
+of happiness; and that the preservation of these rights was the
+legitimate purpose of governments among men. They had avowed this
+principle before the world, had fought for it, and successfully defended
+it, against the mightiest power in the world. They had filled the world
+with its glory; and it, in turn, had filled the world with theirs. It
+had also gathered, and was then gathering, choice spirits, and large
+numbers of the oppressed from other nations unto them. And this
+principle--in which were involved the safety, interests and rights of
+each and every one of "the people," who were to unite for the formation
+of the government--now furnished a bond of union, that was at once
+sufficient, legitimate, consistent, honorable, of universal application,
+and having more general power over the hearts and heads of all of them,
+than any other that could be found to hold them together. It comported
+with their theory of the true objects of government. This principle,
+therefore, they adopted as the corner-stone of their national
+government; and, as a matter of necessity, all other things, on which
+this new government was in any degree to depend, or which was to depend
+in any degree upon this government, were then made to conform to this
+principle. Hence the propriety of the power given to the general
+government, of "guaranteeing to every state in the Union a republican
+form of government." Had not this power been given to the general
+government, the majorities in each state might have converted the state
+governments into oligarchies, aristocracies, monarchies or despotisms,
+that should not only have trampled upon the minorities, and defeated
+their enjoyment of the national constitution, but also introduced such
+factions and feuds into the national governments, as would have
+distracted its councils, and prostrated its power.
+
+But there were also motives of a pecuniary and social, as well as
+political nature, that made it proper that the nation should guarantee
+to the states a republican form of government.
+
+Commerce was to be established between the people of the different
+states. The commerce of a free people is many times more valuable than
+that of slaves. Freemen produce and consume vastly more than slaves.
+They have therefore more to buy and more to sell. Hence the free states
+have a direct pecuniary interest in the civil freedom of all the other
+states. Commerce between free and slave states is not reciprocal or
+equal. Who can measure the increase that would have been made to the
+industry and prosperity of the free states, if all the slaves in the
+country had been freemen, with all the wants and energies of freemen?
+And their masters had had all the thrift, industry, frugality and
+enterprise of men who depend upon their own labor, instead of the labor
+of slaves, for their prosperity? Great Britain thought it policy to
+carry on a seven years' war against us principally to secure to herself
+the control and benefits of the commerce of three millions of people and
+their posterity. But we now have nearly or quite the same number of
+slaves within our borders, and yet we think that commerce with them and
+their posterity is a matter with which we have no concern; that there is
+"_no propriety_" in that provision of the national constitution, which
+requires that the general government--which we have invested with the
+exclusive control of all commerce among the several states--should
+secure to these three millions the right of traffic with their fellow
+men, and to their fellow men the right of traffic with them, against the
+impertinent usurpations and tyranny of subordinate governments, that
+have no constitutional right to interfere in the matter.
+
+Again. The slave states, in proportion to their population, contribute
+nothing like an equal or equitable share to the aggregate of national
+wealth. It would probably be within the truth to say that, in proportion
+to numbers, the people of the free states have contributed ten times as
+much to the national wealth as the people of the slave states. Even for
+such wealth as the culture of their great staple, cotton, has added to
+the nation, the south are indebted principally, if not entirely, to the
+inventive genius of a single northern man.[26] The agriculture of the
+slave states is carried on with rude and clumsy implements; by listless,
+spiritless and thriftless laborers; and in a manner speedily to wear out
+the natural fertility of the soil, which fertility slave cultivation
+seldom or never replaces. The mechanic arts are comparatively dead among
+them. Invention is utterly dormant. It is doubtful whether either a
+slave or a slave holder has ever invented a single important article of
+labor-saving machinery since the foundation of the government. And they
+have hardly had the skill or enterprise to apply any of those invented
+by others. Who can estimate the loss of wealth to the nation from these
+causes alone? Yet we of the free states give to the south a share in the
+incalculable wealth produced by our inventions and labor-saving
+machinery, our steam engines, and cotton gins, and manufacturing
+machinery of all sorts, and yet say at the same time that we have no
+interest, and that there is "no propriety" in the constitutional
+guaranty of that personal freedom to the people of the south, which
+would enable them to return us some equivalent in kind.
+
+For the want, too, of an enforcement of this guaranty of a republican
+form of government to each of the states, the population of the country,
+by the immigration of foreigners, has no doubt been greatly hindered.
+Multitudes almost innumerable, who would have come here, either from a
+love of liberty, or to better their conditions, and given the country
+the benefit of their talents, industry and wealth, have no doubt been
+dissuaded or deterred by the hideous tyranny that rides triumphant in
+one half of the nation, and extends its pestiferous and detested
+influence over the other half.
+
+_Socially_, also, we have an interest in the freedom of all the states.
+We have an interest in free personal intercourse with all the people
+living under a common government with ourselves. We wish to be free to
+discuss, with any and all of them, all the principles of liberty and all
+the interests of humanity. We wish, when we meet a fellow man, to be at
+liberty to speak freely with him of his and our condition; to be at
+liberty to do him a service; to advise with him as to the means of
+improving his condition; and, if need be, to ask a kindness at his
+hands. But all these things are incompatible with slavery. Is this such
+an union as we bargained for? Was it "nominated in the bond," that we
+should be cut off from these the common rights of human nature? If so,
+point to the line and letter, where it is so written. Neither of them
+are to be found. But the contrary is expressly guarantied against the
+power of both the governments, state and national; for the national
+government is prohibited from passing any law abridging the freedom of
+speech and the press, and the state governments are prohibited from
+maintaining any other than a republican form of government, which of
+course implies the same freedom.
+
+The nation at large have still another interest in the republicanism of
+each of the states; an interest, too, that is indicated in the same
+section in which this republicanism is guarantied. This interest results
+from the fact that the nation are pledged to "protect" each of the
+states "against domestic violence." Was there no account taken--in
+reference either to the cost or the principle of this undertaking--as to
+what might be the character of the state governments, which we are thus
+pledged to defend against the risings of the people? Did we covenant, in
+this clause, to wage war against the rights of man? Did we pledge
+ourselves that those, however few, who might ever succeed in getting the
+government of a state into their hands, should thenceforth be recognized
+as the legitimate power of the state, and be entitled to the whole force
+of the general government to aid them in subjecting the remainder of the
+people to the degradation and injustice of slavery? Or did the nation
+undertake only to guarantee the preservation of "a republican form of
+government" against the violence of those who might prove its enemies?
+The reason of the thing, and the connexion, in which the two provisions
+stand in the constitution, give the answer.
+
+We have yet another interest still, and that no trivial one, in the
+republicanism of the state governments; an interest indicated, too, like
+the one last mentioned, in the very section in which this republicanism
+is assured. It relates to the defence against invasion. The general
+government is pledged to defend each of the states against invasion. Is
+it a thing of no moment, whether we have given such a pledge to free or
+to slave states? Is there no difference in the cost and hazard of
+defending one or the other? Is it of no consequence to the expense of
+life and money, involved in this undertaking, whether the people of the
+state invaded shall be united, as freemen naturally will be, as one man
+against the enemy? Or whether, as in slave states, half of them shall be
+burning to join the enemy, with the purpose of satisfying with blood the
+long account of wrong that shall have accrued against their oppressors?
+Did Massachusetts--who during the war of the revolution furnished more
+men for the common defence, than all the six southern states
+together--did she, immediately on the close of that war, pledge herself,
+as the slave holders would have it, that she would lavish her life in
+like manner again, for the defence of those whose wickedness and tyranny
+in peace should necessarily multiply their enemies and make them
+defenceless in war? If so, on what principle, or for what equivalent,
+did she do it? Did she not rather take care that the guaranty for a
+republican government should be inserted in the same paragraph with that
+for protection against invasion, in order that both the principle and
+the extent of the liability she incurred, might distinctly appear?
+
+The nation at large, then, as a political community under the
+constitution, have both interests and rights, and both of the most vital
+character, in the republicanism of each of the state governments. The
+guaranty given by the national constitution, securing such a government
+to each of the states, is therefore neither officious nor impertinent.
+On the contrary, this guaranty was a _sine qua non_ to any national
+contract of union; and the enforcement of it is equally indispensable,
+if not to the continuance of the union at all, certainly to its
+continuance on any terms that are either safe, honorable or equitable
+for the north.
+
+This guaranty, then, is not idle verbiage. It is full of meaning. And
+that meaning is not only fatal to slavery itself, but it is fatal also
+to all those pretences, constructions, surmises and implications, by
+which it is claimed that the national constitution sanctions, legalizes,
+or even tolerates slavery.
+
+[Footnote 18: 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.]
+
+[Footnote 19: "Laws are construed strictly to save a right."--_Whitney
+et al._ vs. _Emmett et al., 1 Baldwin, C.C.R._ 316.
+
+"No law will make a construction 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._]
+
+[Footnote 20: In the convention that framed the constitution, when this
+clause was under discussion, "servants" were spoken of as a distinct
+class from "slaves." For instance, "Mr. Butler and Mr. Pickney moved to
+require 'fugitive slaves and servants to be delivered up like
+criminals.'" Mr. Sherman objected to delivering up either slaves or
+servants. He said he "saw no more propriety in the public seizing and
+surrendering a slave or servant, than a horse."--_Madison Papers, p.
+1447-8._
+
+The language finally adopted shows that they at last agreed to deliver
+up "_servants_," but _not "slaves"_--for as the word "servant" does not
+mean "slave," the word "service" does not mean slavery.
+
+These remarks in the convention are quoted, not because the intentions
+of the convention are of the least legal consequence whatever; but to
+rebut the silly arguments of those who pretend that the convention, and
+not the people, adopted the constitution--and that the convention did
+not understand the legal difference between the word "servant" and
+"slave," and therefore used the word "service," in this clause, as
+meaning slavery.]
+
+[Footnote 21: Gibbons _vs._ Ogden.--(9 Wheaton, 1.)]
+
+[Footnote 22: "The government (of the U.S.) proceeds directly from the
+people; is 'ordained and established' in the name of the
+people."--_M'Culloch_ vs. _Maryland_, 4 _Wheaton_, 403.
+
+"The government of the Union is emphatically and truly, a government of
+the people; and in form and in substance it emanates from them. Its
+powers are granted by them, and are to be exercised directly on them,
+and for their benefit."--_Same_, pages 404, 405.
+
+"The constitution of the United States was ordained and established, not
+by the United States in their sovereign capacities, but emphatically, as
+the preamble of the constitution declares, by 'the people of the United
+States.'"--_Martin_ vs. _Hunter's lessee_, 1 _Wheaton_, 324.]
+
+[Footnote 23: That is, male persons. The constitution, whenever it uses
+the pronoun, in speaking of the president, uniformly uses the masculine
+gender--from which it may be inferred that male persons only were
+intended to be made eligible to the office.]
+
+[Footnote 24: Somerset was not a citizen of England, or entitled, as
+such, to the protection of the English law. The privilege of the writ of
+_habeas corpus_ was granted to him on the ground simply of his being a
+man.]
+
+[Footnote 25: From whom come these objections to the "propriety" of the
+general government's interfering to maintain republicanism in the
+states? Do they not come from those who have ever hitherto claimed that
+the general government was bound to interfere to _put down
+republicanism_? And that those who were _republicans_ at the north,
+might with perfect "propriety" and consistency, pledge their assistance
+to the despots of the south, to sustain the worst, the meanest and most
+atrocious of tyrannies? Yes, from the very same. To interfere to assist
+one half of the people of a state in the cowardly, cruel and fiendish
+work of crushing the other half into the earth, corresponds precisely
+with their chivalrous notions of "propriety;" but it is insufferable
+officiousness for them to form any political compacts that will require
+them to interfere to protect the weak against the tyranny of the strong,
+or to maintain justice, liberty, peace and freedom.]
+
+[Footnote 26: Eli Whitney.]
+
+
+
+
+CHAPTER IX.
+
+THE INTENTIONS OF THE CONVENTION.
+
+
+The intentions of the framers of the constitution, (if we could have, as
+we cannot, any _legal_ knowledge of them, except from the words of the
+constitution,) have nothing to do with fixing the legal meaning of the
+constitution. That convention were not delegated to adopt or establish a
+constitution; but only to consult, devise and recommend. The instrument,
+when it came from their hands, was a mere proposal, having no legal
+force or authority. It finally derived all its validity and obligation,
+as a frame of government, from its adoption by the people at large.[27]
+Of course the intentions of the people at large are the only ones, that
+are of any importance to be regarded in determining the legal meaning of
+the instrument. And their intentions are to be gathered entirely from
+the words, which they adopted to express them. And their intentions must
+be presumed to be just what, and only what the words of the instrument
+_legally_ express. In adopting the constitution, the people acted as
+legislators, in the highest sense in which that word can be applied to
+human lawgivers. They were establishing a law that was to govern both
+themselves and their government. And their intentions, like those of
+other legislators, are to be gathered from the words of their
+enactments. Such is the dictate of both law and common sense.[28] The
+instrument had been reported by their committee, the convention. But the
+people did not ask this committee what was the legal meaning of the
+instrument reported. They adopted it, judging for themselves of its
+legal meaning, as any other legislative body would have done. The people
+at large had not even an opportunity of consultation with the members of
+the convention, to ascertain their opinions. And even if they had
+consulted them, they would not have been bound at all by their opinions.
+But being unable to consult them, they were compelled to adopt or reject
+the instrument, on their own judgment of its meaning, without any
+reference to the opinions of the convention. The instrument, therefore,
+is now to be regarded as expressing the intentions of the people at
+large; and not the intentions of the convention, if the convention had
+any intentions differing from the meaning which the law gives to the
+words of the instrument.
+
+But why do the partizans of slavery resort to the debates of the
+convention for evidence that the constitution sanctions slavery? Plainly
+for no other reason than because the words of the instrument do not
+sanction it. But can the intentions of that convention, attested only by
+a mere skeleton of its debates, and not by any impress upon the
+instrument itself, add any thing to the words, or to the legal meaning
+of the words of the constitution? Plainly not. Their intentions are of
+no more consequence, in a legal point of view, than the intentions of
+any other equal number of the then voters of the country. Besides, as
+members of the convention, they were not even parties to the instrument;
+and no evidence of their intentions, at _that_ time, is applicable to
+the case. They became parties to it only by joining with the rest of the
+people in its subsequent adoption; and they themselves, equally with
+the rest of the people, must then be presumed to have adopted its legal
+meaning, and that alone--notwithstanding any thing they may have
+previously said. What absurdity then is it to set up the opinions
+expressed in the convention, and by a few only of its members, in
+opposition to the opinions expressed by the whole people of the country,
+in the constitution itself.
+
+But notwithstanding the opinions expressed in the convention by some of
+the members, we are bound, as a matter of law, to presume that the
+convention itself, in the aggregate, had no intention of sanctioning
+slavery--and why? Because, after all their debates, they agreed upon an
+instrument that did not sanction it. This was confessedly the result in
+which all their debates terminated. This instrument is also the _only_
+authentic evidence of their intentions. It is subsequent in its date to
+all the other evidence. It comes to us, also, as none of the other
+evidence does, _signed with their own hands_. And is this to be set
+aside, and the constitution itself to be impeached and destroyed, and
+free government overturned, on the authority of a few meagre snatches of
+argument, intent or opinion, uttered by a few only of the members;
+jotted down by one of them, (Mr. Madison,) merely for his own
+convenience, or from the suggestions of his own mind; and only reported
+to us fifty years afterwards by a posthumous publication of his papers?
+If any thing could excite the utter contempt of the people of this
+nation for the miserable subterfuges, to which the advocates of slavery
+resort, it would seem that their offering such evidence as this in
+support of their cause, must do it. And yet these, and such as these
+mere fragments of evidence, all utterly inadmissible and worthless in
+their kind, for any legal purpose, constitute the warp and the woof, the
+very _sine qua non_ of the whole argument for slavery.
+
+Did Mr. Madison, when he took his oath of office, as president of the
+United States, swear to support these scraps of debate, which he had
+filed away among his private papers?--Or did he swear to support that
+written instrument, which the people of the country had agreed to, and
+which was known to them, and to all the world, as the constitution of
+the United States.[29]
+
+But even if the unexpressed intentions, which these notes of debate
+ascribe to certain members, had been participated in by the whole
+convention, we should have had no right to hold the people of the
+country at large responsible for them. _This convention sat with closed
+doors_, and it was not until near fifty years after the people had
+adopted the constitution itself, that these private intentions of the
+framers authentically transpired. And even now all the evidence
+disclosed implicates, _directly and absolutely_, but few of the
+members--not even all from the slaveholding states. The intentions of
+all the rest, we have a right to presume, concurred with their votes and
+the words of the instrument; and they had therefore no occasion to
+express contrary ones in debate.
+
+But suppose that _all_ the members of the convention had participated in
+these intentions--what then? Any forty or fifty men, like those who
+framed the constitution, may now secretly concoct another, that is
+honest in its terms, and yet in secret conclave confess to each other
+the criminal objects they intend to accomplish by it, if its honest
+character should enable them to secure for it the adoption of the
+people.--But if the people should adopt such constitution, would they
+thereby adopt any of the criminal and secret purposes of its authors? Or
+if the guilty confessions of these conspirators should be revealed fifty
+years afterwards, would judicial tribunals look to them as giving the
+government any authority for violating the legal meaning of the words of
+such constitution, and for so construing them as to subserve the
+criminal and shameless purposes of its originators?
+
+The members of the convention, as such, were the mere scriveners of the
+constitution; and their individual purposes, opinions or expressions,
+then uttered in secret cabal, though now revealed, can no more be
+evidence of the intentions of the people who adopted the constitution,
+than the secret opinions or expressions of the scriveners of any other
+contract can be offered to prove the intentions of the true parties to
+such contract. As framers of the constitution, the members of the
+convention gave to it no validity, meaning, or legal force. They simply
+drafted it, and offered it, such as it legally might be, to the people
+for their adoption or rejection. The people, therefore, in adopting it,
+had no reference whatever to the opinions of the convention. They had no
+authentic evidence of what those opinions were. They looked simply at
+the instrument. And they adopted even its legal meaning by a bare
+majority. If the instrument had contained any tangible sanction of
+slavery, the people would sooner have had it burned by the hands of the
+common hangman, than they would have adopted it, and thus sold
+themselves as pimps to slavery, covered as they were with the scars they
+had received in fighting the battles of freedom. And the members of the
+convention knew that such was the feeling of a large portion of the
+people; and for that reason, if for no other, they dared insert in the
+instrument no legal sanction of slavery. They chose rather to trust to
+their craft and influence to corrupt the government, (of which they
+themselves expected to be important members,) after the constitution
+should have been adopted, rather than ask the necessary authority
+directly from the people. And the success they have had in corrupting
+the government, proves that they judged rightly in presuming that the
+government would be more flexible than the people.
+
+For other reasons, too, the people should not be charged with designing
+to sanction any of the secret intentions of the convention. When the
+states sent delegates to the convention, no avowal was made of any
+intention to give any national sanction to slavery. The articles of
+confederation had given none; the then existing state constitutions gave
+none; and it could not have been reasonably anticipated by the people
+that any would have been either asked for or granted in the new
+constitution. If such a purpose had been avowed by those who were at the
+bottom of the movement, the convention would doubtless never have been
+held. The avowed objects of the convention were of a totally different
+character. Commercial, industrial and defensive motives were the
+prominent ones avowed. When, then, the constitution came from the hands
+of such a convention, unstained with any legal or tangible sanction of
+slavery, were the people--who, from the nature of the case, could not
+assemble to draft one for themselves--bound either to discard it, or
+hold themselves responsible for all the secret intentions of those who
+had drafted it? Had they no power to adopt its legal meaning, and that
+alone! Unquestionably they had the power; and, as matter of law, as well
+as fact, it is equally unquestionable that they exercised it. Nothing
+else than the constitution, as a legal instrument, was offered to them
+for their adoption. Nothing else was legally before them that they could
+adopt. Nothing else, therefore, did they adopt.
+
+This alleged design, on the part of the convention, to sanction slavery,
+is obviously of no consequence whatever, unless it can be transferred to
+the people who adopted the constitution. Has any such transfer ever been
+shown? Nothing of the kind. It may have been known among politicians;
+and may have found its way into some of the state conventions. But there
+probably is not a little of evidence in existence, that it was generally
+known among the mass of the people. And, in the nature of things, it was
+nearly impossible that it should have been known by them. The national
+convention had sat with closed doors. Nothing was known of their
+discussions, except what was personally reported by the members. Even
+the discussions in the _state_ conventions could not have been known to
+the people at large; certainly not until after the constitution had been
+ratified by those conventions. The ratification of the instrument, by
+those conventions, followed close on the heels of their
+discussions.--The population meanwhile was thinly scattered over the
+country. The public papers were few, and small, and far between. They
+could not even make such reports of the discussions of public bodies, as
+newspapers now do. The consequence must have been that the people at
+large knew nothing of the intentions of the framers of the constitution,
+but from its words, until after it was adopted. Nevertheless, it is to
+be constantly borne in mind, that even if the people had been fully
+cognizant of those intentions, they would not therefore have adopted
+them, or become at all responsible for them, so long as the intentions
+themselves were not incorporated in the instrument. Many selfish,
+ambitious and criminal purposes, not expressed in the constitution, were
+undoubtedly intended to be accomplished by one and another of the
+thousands of unprincipled politicians, that would naturally swarm around
+the birth-place, and assist at the nativity of a new and splendid
+government. But the people are not therefore responsible for those
+purposes; nor are those purposes, therefore, a part of the constitution;
+nor is its language to be construed with any view to aid their
+accomplishment.
+
+But even if the people intended to sanction slavery by adopting the
+intentions of the convention, it is obvious that they, like the
+convention, intended to use no language that should legally convey that
+meaning, or that should necessarily convict them of that intention in
+the eyes of the world.--They, at least, had enough of virtuous shame to
+induce them to conceal this intention under the cover of language, whose
+legal meaning would enable them always to aver,
+
+   "Thou canst not say I did it."
+
+The intention, therefore, that the judiciary should construe certain
+language into an authority for slavery, when such is not the legal
+meaning of the language itself, cannot be ascribed to the people, except
+upon the supposition that the people presumed their judicial tribunals
+would have so much less of shame than they themselves, as to _volunteer_
+to carry out these their secret wishes, by going beyond the words of the
+constitution they should be sworn to support, and violating all legal
+rules of construction, and all the free principles of the instrument. It
+is true that the judiciary, (whether the people intended it or not,)
+have proved themselves to be thus much, at least, more shameless than
+the people, or the convention. Yet that is not what ought to have been
+expected of judicial tribunals. And whether such were really the
+intention of the convention, or the people, is, at least a matter of
+conjecture and history, and not of law, nor of any evidence cognizable
+by any judicial tribunal.
+
+Why should we search at all for the intentions, either of the
+convention, or of the people, beyond the words which both the convention
+and the people have agreed upon to express them? What is the object of
+written constitutions, and written statutes, and written contracts? Is
+it not that the meaning of those who make them may be known with the
+most absolute precision of which language is capable? Is it not to get
+rid of all the fraud, and uncertainty, and disagreements of oral
+testimony? Where would be our constitution, if, instead of its being a
+written instrument, it had been merely agreed upon orally by the members
+of the convention? And by them only orally reported to the people? And
+only this oral report of it had been adopted by the people? And all our
+evidence of what it really was, had rested upon reports of what Mr. A,
+and Mr. B, members of the convention, had been heard to say? Or upon Mr.
+Madison's notes of the debates of the convention? Or upon the oral
+reports made by the several members to their respective constituents, or
+to the respective state conventions? Or upon flying reports of the
+opinions which a few individuals, out of the whole body of the people,
+had formed of it when they adopted it? No two of the members of the
+convention would probably have agreed in their representations of what
+the constitution really was. No two of the people would have agreed in
+their understanding of the constitution when they adopted it. And the
+consequence would have been that we should really have had no
+constitution at all. Yet there is as much ground, both in reason and in
+law, for thus throwing aside the _whole_ of the written instrument, and
+trusting entirely to these other sources for evidence of what any part
+of the constitution really is, as there is for throwing aside those
+particular portions of the written instrument, which bear on slavery,
+and attempting to supply their place from such evidence as these other
+sources may chance to furnish. And yet, to throw aside the written
+instrument, so far as its provisions are prohibitory of slavery, and
+make a new constitution on that point, out of other testimony, is the
+only means, confessedly the only means, by which slavery can be made
+constitutional.
+
+And what is the object of resorting to these flying reports for
+evidence, on which to change the meaning of the constitution? Is it to
+change the instrument from a dishonest to an honest one? from an unjust
+to a just one? No. But directly the reverse--and solely that dishonesty
+and injustice may be carried into effect. A purpose, for which no
+evidence of any kind whatever could be admitted in a court of justice.
+
+Again. If the principle be admitted, that the meaning of the
+constitution can be changed, on proof being made that the scriveners or
+framers of it had secret and knavish intentions, which do not appear on
+the face of the instrument, then perfect license is given to the
+scriveners of constitutions to contrive any secret scheme of villainy
+they may please, and impose it upon the people as a system of
+government, under cover of a written instrument that is so plainly
+honest and just in its terms, that the people readily agree to it. Is
+such a principle to be admitted in a country where the people claim the
+prerogative of establishing their own government, and deny the right of
+any body to impose a government upon them, either by force, or fraud, or
+against their will?
+
+Finally. The constitution is a contract; a written contract, consisting
+of a certain number of precise words, to which, and to which only, all
+the parties to it have, in theory, agreed. Manifestly neither this
+contract, nor the meaning of its words, can be changed, without the
+consent of all the parties to it. Nor can it be changed on a
+representation, to be made by any number of them less than the whole,
+that they intended any thing different from what they have said. To
+change it, on the representation of a part, without the consent of the
+rest, would be a breach of contract as to all the rest. And to change
+its _legal meaning_, without their consent, would be as much a breach of
+the contract as to change its words. If there were a single honest man
+in the nation, who assented, in good faith, to the honest and legal
+meaning of the constitution, it would be unjust and unlawful to change
+the meaning of the instrument so as to sanction slavery, even though
+every other man in the nation should testify that, in agreeing to the
+constitution, he intended that slavery should be sanctioned. If there
+were _not_ a single honest man in the nation, who adopted the
+constitution in good faith, and with the intent that its legal meaning
+should be carried into effect, its legal meaning would nevertheless
+remain the same; for no judicial tribunal could lawfully allow the
+parties to it to come into court and allege their dishonest intentions,
+and claim that they be substituted for the legal meaning of the words of
+the instrument.
+
+[Footnote 27: The Supreme Court say, "The instrument, when it came from
+their hands, (that is, the hands of the convention,) was a mere
+proposal, without obligation or pretension to it." "The people were at
+perfect liberty to accept or reject it; and their act was
+final."--_M'Cullock_ vs. _Maryland_,--4 _Wheaton_ 403-4.]
+
+[Footnote 28: The Supreme Court of the United States say:
+
+"The intention of the instrument must prevail: _this intention must be
+collected from its words_."--_Ogden_ vs. _Saunders_,--12 _Wheaton_, 332.
+
+"The intention of the legislature is to be searched for in the words
+which the legislature has employed to convey it."--_Schr. Paulina's
+Cargo_ vs. _United States_,--7 _Cranch_, 60.]
+
+[Footnote 29: "Elliot's Debates," so often referred to, are, if
+possible, a more miserable authority than Mr. Madison's notes. He seems
+to have picked up the most of them from the newspapers of the day, in
+which they were reported by nobody now probably knows whom. In his
+preface to his first volume, containing the debates in the Massachusetts
+and New York conventions, he says:
+
+"In the compilation of this volume, care has been taken to search into
+contemporary publications, in order to make the work as perfect as
+possible; still, however, the editor is sensible, from the daily
+experience of newspaper reports, of the present time, that the
+sentiments they contain may, in some instances, have been inaccurately
+taken down, and in others, probably too faintly sketched, fully to
+gratify the inquisitive politician." He also speaks of them as "rescued
+from the ephemeral prints of that day, and now, for the first time,
+presented in a uniform and durable form."
+
+In the preface to his second volume, which is devoted to the Virginia
+convention, he says the debates were reported by an able stenographer,
+David Robertson; and then quotes the following from Mr. Wirt, in a note
+to the life of Patrick Henry:
+
+"From the skill and ability of the reporter, there can be no doubt that
+the substance of the debates, as well as their general course, are
+accurately preserved."
+
+In his preface to the third volume, embracing the North Carolina and
+Pennsylvania conventions, he says:
+
+"The _first_ of the two North Carolina conventions is contained in this
+volume; the _second_ convention, it is believed, _was neither
+systematically reported nor printed_." "The debates in the Pennsylvania
+convention, that have been preserved, it appears, _are on one side
+only_; a search into the contemporary publications of the day, has been
+unsuccessful to furnish us with the other side of the question."
+
+In his preface to the fourth volume, he says:
+
+"In compiling the opinions, on constitutional questions, delivered in
+congress, by some of the most enlightened senators and representatives,
+the files of the New York and Philadelphia newspapers, from 1789 to
+1800, had to be relied on; from the latter period to the present, the
+National Intelligencer is the authority consulted for the desired
+information."
+
+It is from such stuff as this, collected and published thirty-five and
+forty years after the constitution was adopted--stuff very suitable for
+constitutional dreams to be made of--that our courts and people now make
+their constitutional law, in preference to adopting the law of the
+constitution itself. In this way they manufacture law strong enough to
+bind three millions of men in slavery.]
+
+
+
+
+CHAPTER X.
+
+THE PRACTICE OF THE GOVERNMENT.
+
+
+The practice of the government, under the constitution, has not altered
+the legal meaning of the instrument. It means now what it did before it
+was ratified, when it was first offered to the people for their adoption
+or rejection. One of the advantages of a written constitution is, that
+it enables the people to see what its character is before they adopt it;
+and another is, that it enables them to see, after they have adopted it,
+whether the government adheres to it, or departs from it. Both these
+advantages, each of which is indispensable to liberty, would be entirely
+forfeited, if the legal meaning of a written constitution were one thing
+when the instrument was offered to the people for their adoption, and
+could then be made another thing by the government after the people had
+adopted it.
+
+It is of no consequence, therefore, what meaning the government _have_
+placed upon the instrument; but only what meaning they were _bound to
+place upon it_ from the beginning.
+
+The only question, then, to be decided, is, what was the meaning of the
+constitution, _as a legal instrument_, when it was first drawn up, and
+presented to the people, and before it was adopted by them?
+
+To this question there certainly can be but one answer.--There is not
+room for a doubt or an argument, on that point, in favor of slavery. The
+instrument itself is palpably a free one throughout, in its language,
+its principles, and all its provisions. As a legal instrument, there is
+no trace of slavery in it. It not only does not sanction slavery, but it
+does not even recognize its existence. More than this, it is palpably
+and wholly incompatible with slavery. It is also the supreme law of the
+land, in contempt of any state constitution or law that should attempt
+to establish slavery.
+
+Such was the character of the constitution when it was offered to the
+people, and before it was adopted. And if such was its character then,
+such is its character still. It cannot have been changed by all the
+errors and perversions, intentional or unintentional, of which the
+government may have since been guilty.
+
+
+
+
+CHAPTER XI.
+
+THE UNDERSTANDING OF THE PEOPLE.
+
+
+Although the inquiry may be of no legal importance, it may nevertheless
+be one pertinent to the subject, whether it be matter of _history_
+even--to say nothing of legal proof--that the _people_ of the country
+did really understand or believe that the constitution sanctioned
+slavery? Those who make the assertion, are bound to prove it. The
+presumption is against them. Where is their contrary history?
+
+They will say that a part of the people were actually slaveholders, and
+that it is unreasonable to suppose they would have agreed to the
+constitution, if they had understood it to be a free one.
+
+The answer to this argument is, that the actual slaveholders were few in
+number compared with the whole people; comprising probably not more than
+one-eighth or one-sixth of the voters, and one-fortieth or one-thirtieth
+of the whole population. They were so few as to be manifestly incapable
+of maintaining any separate political organization; or even of holding
+their slave property, except under the sufferance, toleration and
+protection of the non-slaveholders. They were compelled, therefore, to
+agree to any political organization, which the non-slaveholders should
+determine on. This was at that time the case even in the strongest of
+the slaveholding states themselves. In all of them, without exception,
+the slaveholders were either obliged to live, or from choice did live,
+under free constitutions. They, of course, held their slave property in
+defiance of their constitutions. They were enabled to do this through
+the corrupting influence of their wealth and union. Controlling a large
+proportion of the wealth of their states, their social and political
+influence was entirely disproportionate to their numbers. They could act
+in concert. They could purchase talent by honors, offices and money.
+Being always united, while the non-slaveholders were divided, they could
+turn the scale in elections, and fill most of the offices with
+slaveholders. Many of the non-slaveholders doubtless were poor,
+dependent and subservient, (as large portions of the non-slaveholders
+are now in the slaveholding states,) and lent themselves to the support
+of slavery almost from necessity. By these, and probably by many other
+influences that we cannot now understand, they were enabled to maintain
+their hold upon their slave property in defiance of their constitutions.
+It is even possible that the slaveholders themselves did not choose to
+have the subject of slavery mentioned in their constitutions; that they
+were so fully conscious of their power to corrupt and control their
+governments, that they did not regard any constitutional provision
+necessary for their security; and that out of mere shame at the
+criminality of the thing, and its inconsistency with all the principles
+the country had been fighting for and proclaiming, they did not wish it
+to be named.
+
+But whatever may have been the cause of the fact, the fact itself is
+conspicuous, that from some cause or other, either with the consent of
+the slaveholders, or in defiance of their power, the constitutions of
+every one of the thirteen states were at that time free ones.
+
+Now is it not idle and useless to pretend, when even the strongest
+slaveholding states had free constitutions--when not one of the separate
+states, acting for itself, would have any but a free constitution--that
+the whole thirteen, when acting in unison, should concur in establishing
+a slaveholding one? The idea is preposterous. The single fact that all
+the state constitutions were at that time free ones, scatters for ever
+the pretence that the majority of the people of all the states either
+intended to establish, _or could have been induced to establish_, any
+other than a free one for the nation. Of course it scatters also the
+pretence that they believed or understood that they were establishing
+any but a free one.
+
+There very probably may have been a general belief among the people,
+that slavery would for a while live on, on sufferance; that the
+government, until the nation should have become attached to the
+constitution, and cemented and consolidated by the habit of union, would
+be too weak, and too easily corrupted by the innumerable and powerful
+appliances of slaveholders, to wrestle with and strangle slavery. But to
+suppose that the nation at large did not look upon the constitution as
+designed to destroy slavery, whenever its principles should be carried
+into full effect, is obviously to suppose an intellectual impossibility;
+for the instrument was plain, and the people had common sense; and those
+two facts cannot stand together consistently with the idea that there
+was any general, or even any considerable misunderstanding of its
+meaning.
+
+
+
+
+CHAPTER XII.
+
+THE STATE CONSTITUTIONS OF 1845.
+
+
+Of all the existing state constitutions, (excepting that of Florida,
+which I have not seen,) not one of them contains provisions that are
+sufficient, (or that would be sufficient if not restrained by the
+constitution of the United States,) to authorize the slavery that exists
+in the states. The material deficiency in all of them is, that they
+neither designate, nor give the legislatures any authority to designate
+the persons, who may be made slaves. Without such a provision, all their
+other provisions in regard to slaves are nugatory, simply because their
+application is legally unknown. They would apply as well to whites as to
+blacks, and would as much authorize the enslavement of whites as of
+blacks.
+
+We have before seen that none of the state constitutions, that were in
+existence in 1789, recognized slavery at all. Since that time, four of
+the old thirteen states, viz., Maryland, North Carolina, South Carolina
+and Georgia, have altered their constitutions so as to make them
+recognize slavery; yet not so as to provide for any legal designation of
+the persons to be made slaves.
+
+The constitution of South Carolina has a provision that implies that
+_some_ of the slaves, at least, are "negroes;" but not that all slaves
+are negroes, nor that all negroes are slaves. The provision, therefore,
+amounts to nothing for the purposes of a constitutional designation of
+the persons who may be made slaves.
+
+The constitutions of Tennessee and Louisiana make no direct mention of
+slaves; and have no provisions in favor of slavery, unless the general
+one for continuing existing laws in force, be such a one. But both have
+specific provisions inconsistent with slavery. Both purport to be
+established by "the people;" both have provisions for the writ of
+_habeas corpus_. Indeed, the constitutions of most of the slave states
+have provisions for this writ, which, as has been before shown, denies
+the right of property in man. That of Tennessee declares also "that all
+courts shall be open, and _every man_, for an injury done him in his
+lands, goods, person or reputation, shall have remedy by due course of
+law, and right and justice administered without sale, denial or delay."
+Tennessee also was formerly a part of North Carolina; was set off from
+her while the constitution of North Carolina was a free one. Of course
+there has never been any legal slavery in Tennessee.
+
+The constitutions of the states of Kentucky, Missouri, Arkansas,
+Mississippi, and Alabama, all have provisions about slaves; yet none of
+them tell us who may be slaves. Some of them indeed provide for the
+admission into their state of such persons as are slaves under the laws,
+(which of course means only the _constitutional_ laws,) _of other
+states_. But when we go to those other states, we find that their
+constitutions have made no designation of the persons who may be made
+slaves; and therefore we are as far from finding the actual persons of
+the slaves as we were before.
+
+The principal provision, in the several state constitutions, recognizing
+slavery, is, in substance, this, that the legislature shall have no
+power to _emancipate_ slaves without the consent of their owners, or
+without making compensation. But this provision is of no avail to
+legalize slavery, for slavery must be _constitutionally established_,
+before there can be any legal slaves to be emancipated; and it cannot be
+established without describing the persons who may be made slaves.
+
+Kentucky was originally a part of Virginia, and derived her slaves from
+Virginia. As the constitution of Virginia was always a free one, it gave
+no authority for slavery in that part of the state which is now
+Kentucky. Of course Kentucky never had any legal slavery.
+
+Slavery was positively prohibited in all the states included in the
+Louisiana purchase, by the third article of the treaty of cession--which
+is in these words:--
+
+   Art. 3. "The _inhabitants_" (that is, _all_ the inhabitants,) "of the
+   ceded territory shall be incorporated in the union of the United
+   States, and admitted as soon as possible, _according to the
+   principles of the federal constitution_, to the enjoyment of all the
+   rights, advantages, and immunities of _citizens_ of the United
+   States; and, in the mean time, they shall be maintained and protected
+   in the free enjoyment of their liberty, property, and the religion
+   which they profess."
+
+The cession of Florida to the United States was made on the same terms.
+The words of the treaty, on this point, are as follows:--
+
+   "Art. 6. The _inhabitants_ of the territories, which his Catholic
+   majesty cedes to the United States by this treaty, shall be
+   incorporated in the Union of the United States, as soon as may be
+   consistent with the principles of the federal constitution, and
+   admitted to the enjoyment of all the privileges, rights and
+   immunities of the _citizens_ of the United States."
+
+To allow _any_ of the "inhabitants," included in those treaties, to be
+held as slaves, or denied the rights of citizenship under the United
+States' constitution, is a plain breach of the treaties.
+
+The constitutions of some of the slave states have provisions like this,
+viz., that all laws previously in force, shall remain in force until
+repealed, unless repugnant to this constitution. But I think there is no
+instance, in which the slave acts, then on their statute books, could be
+perpetuated by this provision--and for two reasons; 1st. These slave
+acts were previously unconstitutional, and therefore were not, legally
+speaking, "laws in force."[30] 2d. Every constitution, I think, that has
+this provision, has one or more other provisions that _are_ "repugnant"
+to the slave acts.
+
+[Footnote 30: This principle would apply, as we have before seen, where
+the change was from the _colonial_ to a state government. It would also
+apply to all cases where the change took place, under the constitution
+of the United States, from a _territorial_ to a state government. It
+needs no argument to prove that all our territorial statutes, that have
+purported to authorize slavery, were unconstitutional.]
+
+
+
+
+CHAPTER XIII.
+
+THE CHILDREN OF SLAVES ARE BORN FREE.
+
+
+The idea that the children of slaves are necessarily born slaves, or
+that they necessarily follow that _natural law_ of property, which gives
+the natural increase of property to the owner of the original stock, is
+an erroneous one.
+
+It is a principle of natural law in regard to property, that a calf
+belongs to the owner of the cow that bore it; fruit to the owner of the
+tree or vine on which it grew; and so on. But the principle of _natural
+law_, which makes a calf belong to the owner of the cow, does not make
+the child of a slave belong to the owner of the slave--and why? Simply
+because both cow and calf are _naturally_ subjects of property; while
+neither men nor children are _naturally_ subjects of property. The law
+of nature gives no aid to any thing inconsistent with itself. It
+therefore gives no aid to the transmission of property in man--while it
+does give aid to the transmission of property in other animals and in
+things.
+
+Brute animals and things being _naturally_ subjects of property, there
+are obvious reasons why the natural increase should belong to the owner
+of the original stock. But men, not being _naturally_ subjects of
+property, the law of nature will not transmit any right of property
+acquired in violation of her own authority. The law of nature denies all
+rights not derived from herself. Of course she cannot perpetuate or
+transmit such rights--if rights they can be called.
+
+One important reason why a calf belongs to the owner of the cow that
+bore it, is, _that there is no principle of natural law that can be
+opposed to that ownership_. For the calf is naturally a subject of
+property, and if it were not given to the owner of the cow, it would be
+lawful for any other person to assume the ownership. No wrong would be
+done to the animal by so doing. But as man is not naturally a subject of
+property, and as each separate individual is, on principles of natural
+law, entitled to the control of his own person, it is as much a wrong,
+and as much a violation of natural law, to make a slave of the child of
+a slave, as to make a slave of any other person. The natural rights of
+the child to the control of his own person, rise up, from the moment of
+his birth, in opposition to the transmission to him of any ownership,
+which, in violation of natural law, has been asserted to the parent.
+
+Natural law may be overborne by arbitrary institutions; but she will
+never aid, or perpetuate them. For her to do so, would be to resist, and
+even deny her own authority. It would present the case of a principle
+warring against and overcoming itself. Instead of this, she asserts her
+own authority on the first opportunity. The moment the arbitrary law
+expires by its own limitation, natural law resumes her reign. If,
+therefore, the government declare A to be a slave, natural law may be
+practically overborne by this arbitrary authority; but she will not
+herself perpetuate it beyond the person of A--for that would be acting
+in contradiction to herself.--She will therefore suffer this arbitrary
+authority to expend itself on the person of A, according to the _letter_
+of the arbitrary law; but she will assert her own authority in favor of
+the child of A, to whom the letter of the law enslaving A, does not
+apply.
+
+Slavery is a wrong to each individual enslaved; and not merely to the
+first of a series. Natural law, therefore, as much forbids the enslaving
+of the child, as if the wrong of enslaving the parent had never been
+perpetrated.
+
+Slavery, then, is an arbitrary institution throughout. It depends, from
+first to last, upon the letter of the arbitrary law. Natural law gives
+it no aid, no extension, no new application, under any circumstances
+whatever. Unless, therefore, the letter of the arbitrary law explicitly
+authorize the enslavement of the child, the child is born free, though
+the parent were a slave.
+
+If the views that have already been taken of our written constitutions,
+be correct, no parent has ever yet been legally enslaved in this
+country; and of course no child. If, however, any one thinks he can
+place his finger upon any _constitutional_ law, that has enslaved a
+parent, let him follow that law, and see whether it also expressly
+authorized the enslavement of the child. If it did not, then the child
+would be free.
+
+It is no new principle that the child of a slave would be born free, but
+for an express law to the contrary. Some of the slave codes admit the
+principle--for they have special provisions that the child shall follow
+the condition of the mother; thus virtually admitting that, but for such
+a provision, the child would be free, though the mother were a slave.
+
+Under the constitutions of the states and the United States, it requires
+as explicit and plenary _constitutional_ authority, to make slaves of
+the children of slaves, as it would to make slaves of any body else. Is
+there, in any of the constitutions of this country, any general
+authority given to the governments, to make slaves of whom they please?
+No one will pretend it. Is there, then, any particular authority for
+making slaves of the children of those, who have previously been held in
+slavery? If there be, let the advocates of slavery point it out. If
+there be no such authority, all their statutes declaring that the
+children of slaves shall follow the condition of their mothers, are
+void; and those children are free by force of the law of nature.
+
+This law of nature, that all men are born free, was recognized by this
+country in the Declaration of Independence.--But it was no new principle
+then. Justinian says, "Captivity and servitude are both contrary to the
+law of nature; for by that law all men are born free." But the principle
+was not new with Justinian; it exists in the nature of man, and is as
+old as man--and the race of man generally has acknowledged it. The
+exceptions have been special; the rule general.
+
+The constitution of the United States recognizes the principle that all
+men are born free; for it recognizes the principle that natural birth in
+the country gives citizenship[31]--which of course implies freedom. And
+no exception is made to the rule. Of course all born in the country
+since the adoption of the constitution of the United States, have been
+born free, whether there were, or were not any legal slaves in the
+country before that time.
+
+Even the provisions, in the several state constitutions, that the
+legislatures shall not _emancipate_ slaves, would, if allowed their full
+effect, unrestrained by the constitution of the United States, hold in
+slavery only those who were then slaves; it would do nothing towards
+enslaving their children, and would give the legislatures no authority
+to enslave them.
+
+It is clear, therefore, that, on this principle alone, slavery would now
+be extinct in this country, unless there should be an exception of a few
+aged persons.
+
+[Footnote 31: Art. 2, Sec. 1, Clause 5, "No person, except a _natural
+born_ citizen,* * * * shall be eligible to the office of President."]
+
+
+
+
+
+End of the Project Gutenberg EBook of The Unconstitutionality of Slavery, by 
+Lysander Spooner
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+    <meta http-equiv="Content-Type" content="text/html;charset=iso-8859-1" />
+    <title>
+      The Project Gutenberg eBook of The Unconstitutionality of Slavery, by Lysander Spooner.
+    </title>
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+<pre>
+
+Project Gutenberg's The Unconstitutionality of Slavery, by Lysander Spooner
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: The Unconstitutionality of Slavery
+
+Author: Lysander Spooner
+
+Release Date: March 31, 2010 [EBook #31844]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK THE UNCONSTITUTIONALITY OF SLAVERY ***
+
+
+
+
+Produced by Curtis Weyant, Graeme Mackreth and the Online
+Distributed Proofreading Team at https://www.pgdp.net (This
+book was produced from scanned images of public domain
+material from the Google Print project.)
+
+
+
+
+
+
+</pre>
+
+
+
+
+
+
+
+<h4>
+THE</h4>
+
+<h3>UNCONSTITUTIONALITY</h3>
+
+<h4>OF</h4>
+
+<h1>SLAVERY.</h1>
+
+<h3>BY LYSANDER SPOONER.</h3>
+
+<p style="margin-top: 10em;" class='center'>BOSTON:<br />
+
+PUBLISHED BY BELA MARSH,<br />
+
+<small><span class="smcap">No. 25 Cornhill.</span><br />
+
+1845.</small>
+</p>
+
+<p class='center' style="margin-top: 10em;"><small><span class="smcap">Entered</span> according to Act of Congress, in the year 1845, by
+<span class="smcap">Lysander Spooner</span>,<br /> in the Clerk's Office of the District Court
+of Massachusetts.</small></p>
+
+
+<p class='center'><small><span class="smcap">Dow &amp; Jackson's Anti-Slavery Press.</span></small></p>
+
+
+
+<hr style="width: 65%;" />
+<h2>CONTENTS.</h2>
+
+
+
+
+
+
+
+<ul class="TOC">
+
+<li><a href="#CHAPTER_I">&mdash;WHAT IS LAW?</a></li>
+
+<li><a href="#CHAPTER_II">&mdash;WRITTEN CONSTITUTIONS,</a></li>
+
+<li><a href="#CHAPTER_III">&mdash;THE COLONIAL CHARTERS,</a></li>
+
+<li><a href="#CHAPTER_IV">&mdash;COLONIAL STATUTES,</a></li>
+
+<li><a href="#CHAPTER_V">&mdash;THE DECLARATION OF INDEPENDENCE,</a></li>
+
+<li><a href="#CHAPTER_VI">&mdash;THE STATE CONSTITUTIONS OF 1789.</a><br />
+<span style="margin-left: 7em;">(<span class="smcap">Meaning of the word "Free,"</span>)</span></li>
+
+<li><a href="#CHAPTER_VII">&mdash;THE ARTICLES OF CONFEDERATION,</a></li>
+
+<li><a href="#CHAPTER_VIII">&mdash;THE CONSTITUTION OF THE UNITED STATES,</a></li>
+
+<li><a href="#CHAPTER_IX">&mdash;THE INTENTIONS OF THE CONVENTION,</a></li>
+
+<li><a href="#CHAPTER_X">&mdash;THE PRACTICE OF THE GOVERNMENT,</a></li>
+
+<li><a href="#CHAPTER_XI">&mdash;THE UNDERSTANDING OF THE PEOPLE,</a></li>
+
+<li><a href="#CHAPTER_XII">&mdash;THE STATE CONSTITUTIONS OF 1845,</a></li>
+
+<li><a href="#CHAPTER_XIII">&mdash;THE CHILDREN OF SLAVES ARE BORN FREE,</a></li>
+</ul>
+
+
+
+<h2>
+THE<br />
+UNCONSTITUTIONALITY OF SLAVERY.
+</h2>
+<hr style="width: 65%;" />
+
+
+<h2><a name="CHAPTER_I" id="CHAPTER_I"></a>CHAPTER I.</h2>
+
+<p class='center'>WHAT IS LAW?</p>
+
+
+<p>Before examining the language of the Constitution, in regard to Slavery,
+let us obtain a view of the principles, by virtue of which <i>law</i> arises
+out of those constitutions and compacts, by which people agree to
+establish government.</p>
+
+<p>To do this it is necessary to define the term <i>law</i>. 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.</p>
+
+<p>What then is <span class="smcap">Law</span>? That law, I mean, which, and which only,
+judicial tribunals are morally bound, under all circumstances, to
+declare and sustain?</p>
+
+<p>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.</p>
+
+<p>To determine whether this proposition be correct, we must look at the
+<i>general</i> signification of the term <i>law</i>.</p>
+
+<p>The true and general meaning of it, is that <i>natural</i>, permanent,
+unalterable principle, which governs any particular thing or class of
+things. The principle is strictly a <i>natural</i> one; and the term applies
+to every <i>natural</i> principle, whether mental, moral or physical. Thus
+we speak of the laws of mind; meaning thereby those <i>natural</i>, 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 other, and to other things&mdash;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, &amp;c., &amp;c.&mdash;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.</p>
+
+<p>Law, then, applied to any object or thing whatever, signifies a
+<i>natural</i>, 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.</p>
+
+<p>What, then, is that <i>natural</i>, universal, impartial and inflexible
+principle, which, under all circumstances, <i>necessarily</i> fixes,
+determines, defines and governs the civil rights of men? Those rights of
+person, property, &amp;c., which one human being has, as against other human
+beings?</p>
+
+<p>I shall define it to be simply <i>the rule, principle, obligation or
+requirement of natural justice</i>.</p>
+
+<p>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
+<i>natural</i> right to make by labor and contract.</p>
+
+<p>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 <i>natural law</i>. Natural law, in
+fact, constitutes the great body of the law that is <i>professedly</i>
+administered by judicial tribunals: and it always necessarily must
+be&mdash;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 not been thus anticipated, the natural law prevails. We thus
+politically and judicially <i>recognize</i> 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.</p>
+
+<p>If, then, law be a natural principle&mdash;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&mdash;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.</p>
+
+<p>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, <i>no law but
+natural law</i>. 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 <i>natural</i> right to make, or from
+such contracts as they have a <i>natural</i> right to enter into.</p>
+
+<p>Natural law recognizes the validity of all contracts which men have a
+<i>natural</i> 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, &amp;c., which men have a
+natural right to acquire by labor and contract.</p>
+
+<p>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 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&mdash;which is but
+an association of individuals&mdash;than to a single individual. They are a
+necessary attribute of man's nature; and he can no more part with
+them&mdash;to government or any body else&mdash;than with his nature itself. But
+the contract of government may lawfully authorize the adoption of
+means&mdash;not inconsistent with natural justice&mdash;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.<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[1]</a></p>
+
+<p>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 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&mdash;and for the same reason
+that a treaty between two nations for a similar purpose, or a contract
+of the same nature between two individuals, is unlawful and void. Such a
+contract of government has no moral sanction. It confers no rightful
+authority upon those appointed to administer it. It confers no legal or
+moral rights, and imposes no legal or moral obligation upon the people
+who are parties to it. The only duties, which any one can owe to it, or
+to the government established under color of its authority, are
+disobedience, resistance, destruction.</p>
+
+<p>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 any thing, 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.</p>
+
+<p>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.</p>
+
+<p>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 authorize, (if any of them do authorize,) any
+thing in violation of natural justice, or the natural 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.</p>
+
+<p>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 every where 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&mdash;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.</p>
+
+<p>The injustice of these rules, however palpable and atrocious it may be,
+has not deterred their authors from dignifying them with the name of
+<i>law</i>. 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
+obedience, 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.</p>
+
+<p>But I am aware that other definitions of law, widely different from that
+I have given, have been attempted&mdash;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.</p>
+
+<p>For example. One of these definitions&mdash;one that probably embraces the
+essence of all the rest&mdash;is this:</p>
+
+<p>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." <i>Noah Webster.</i></p>
+
+<p>In this definition, hardly any thing, that is essential to the idea of
+law, is made certain. Let us see. It says that,</p>
+
+<p>"Law is a rule of civil conduct, prescribed by the <i>supreme power</i> of a
+state."</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>Are we prepared to admit the principle, that there is no real
+distinction between law and force? If not, we must reject this
+definition.</p>
+
+<p>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?</p>
+
+<p>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.</p>
+
+<p>Again. If mere will and power are sufficient, of themselves, to
+establish law&mdash;legitimate law&mdash;such law as judicial tribunals are
+morally bound, or even have a moral right to enforce&mdash;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.</p>
+
+<p>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.&mdash;The numbers concerned do not alter
+the rule&mdash;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.</p>
+
+<p>On this principle, then&mdash;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 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.</p>
+
+<p>But, perhaps it will be said that the soundness of this definition
+depends upon the use of the word "state"&mdash;and that it therefore makes a
+distinction between "the supreme power of <i>a state</i>," over a particular
+act, and the power of an individual over the same act.</p>
+
+<p>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.</p>
+
+<p>There is nothing <i>fixed</i> in the nature, character or boundaries of "a
+state." Will and power may alter them at pleasure. The will and power of
+Nicholas, and that will and power, which he has concentrated around, or
+rather within himself, establishes all Russia, both in Europe and Asia,
+as "a state." By the same rule, the will and power of the owner of an
+acre of ground, may establish that acre as a state, and make his will
+and power, for the time being, supreme and lawful within it.</p>
+
+<p>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.</p>
+
+<p>"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, <i>for
+the time being</i>.</p>
+
+<p>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, <i>for the time being</i>, supreme, or
+irresistible, are, for all <i>legal</i> purposes, "a state"&mdash;and his will and
+power constitute, for the time being, the law within those limits; and
+his acts are, therefore, for the time being, 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.</p>
+
+<p>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"&mdash;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.</p>
+
+<p>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. <i>that law is the rule, principle,
+obligation or requirement of natural justice</i>?</p>
+
+<p>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.</p>
+
+<p>If, then, law really be nothing other than the rule, principle,
+obligation or requirement of natural justice, it follows that government
+can have no powers except such as individuals may <i>rightfully</i> delegate
+to it: that no law, inconsistent with men's natural rights, can arise
+out of any contract or compact of government: <i>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</i>; 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.</p>
+
+<p>Though this doctrine may make sad havoc with constitutions and statute
+books, it is nevertheless law. It fixes and determines the real rights
+of all men; and its demands are as imperious as any that can exist under
+the name of law.</p>
+
+<p>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.<a name="FNanchor_2_2" id="FNanchor_2_2"></a><a href="#Footnote_2_2" class="fnanchor">[2]</a></p>
+
+<div class="footnote"><p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[1]</span></a> 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 <i>inherent</i> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_2_2" id="Footnote_2_2"></a><a href="#FNanchor_2_2"><span class="label">[2]</span></a> 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 <i>natural</i>, 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.
+</p><p>
+"Jurisprudence is the science of what is just and unjust."&mdash;<i>Justinian.</i>
+</p><p>
+"The primary and principal objects of the law are rights and
+wrongs."&mdash;<i>Blackstone.</i>
+</p><p>
+"Justice is the constant and perpetual disposition to render to every
+man his due."&mdash;<i>Justinian.</i>
+</p><p>
+"The precepts of the law are to live honestly; to hurt no one; to give
+to every one his due."&mdash;<i>Justinian &amp; Blackstone.</i>
+</p><p>
+"<span class="smcap">Law.</span> 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."&mdash;<i>Jacob's Law Dictionary.</i>
+</p><p>
+"Laws are arbitrary or positive, and natural; the last of which are
+essentially just and good, and bind every where, 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."&mdash;<i>Selden on Fortescue, C. 17, also Jacob's Law
+Dictionary.</i>
+</p><p>
+"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."&mdash;<i>2 Shep. Abr. 356, also Jac. Law Dict.</i>
+</p><p>
+"All laws derive their force from the law of nature; and those which do
+not, are accounted as no laws."&mdash;<i>Fortescue. Jac. Law Dict.</i>
+</p><p>
+"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."&mdash;<i>1 Inst. 183, 197.&mdash;Jac. Law
+Dict.</i>
+</p><p>
+"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."&mdash;<i>Hooker.</i>
+</p><p>
+"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."&mdash;<i>Blackstone, Vol. 1, p. 41.</i>
+</p><p>
+Mr. Christian, one of Blackstone's editors, in a note to the above
+passage, says:
+</p><p>
+"Lord Chief Justice Hobart has also advanced, that even an act of
+Parliament made against natural justice, as to make a man judge in his
+own cause, is void in itself, for <i>jura natur&aelig; sunt immutabilia</i>, and
+they are <i>leges legum</i>"&mdash;(the laws of nature are immutable&mdash;they are the
+laws of laws.)&mdash;<i>Hob. 87.</i>
+</p><p>
+Mr. Christian then adds:
+</p><p>
+"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.
+</p><p>
+"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."
+</p><p>
+It will be seen from this note of Mr. Christian, that he concurs in the
+opinion that an enactment contrary to natural justice is <i>intrinsically</i>
+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 reason why Blackstone admitted
+that he knew of no power in the ordinary forms of the (British)
+constitution, that was vested with authority to control an act of
+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.
+</p><p>
+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.&mdash;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 State's 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.
+</p><p>
+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.
+</p><p>
+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&mdash;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.
+</p><p>
+To proceed with our authorities:&mdash;
+</p><p>
+"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."&mdash;<i>Blackstone, Vol. 1, p. 42, 43.</i>
+</p><p>
+"The law of nations depends entirely upon the rules of <i>natural law</i>, 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, but the law of nature: (that) being the only
+one to which all the communities are equally subject."&mdash;<i>Blackstone,
+Vol. 1, p. 43.</i>
+</p><p>
+"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."&mdash;<i>Blackstone,
+Vol. 1, p. 54.</i>
+</p><p>
+"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."&mdash;<i>Blackstone, Vol. 1, p. 123.</i>
+</p><p>
+"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 laws
+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."&mdash;<i>Blackstone, Vol. 1, p. 124.</i>
+</p><p>
+"The absolute rights of man, considered as a free agent, endowed with
+discernment to 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."&mdash;<i>Blackstone, Vol. 1, p. 125.</i>
+</p><p>
+"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."&mdash;<i>Christian's note, Blackstone, Vol. 1, p. 126.</i>
+</p><p>
+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; and that therefore the
+acknowledgment and security of the natural rights of individuals
+constitute the whole basis of law as a science, and a <i>sine qua non</i> of
+government as a legitimate institution.
+</p><p>
+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 particular cases; and the
+guardian principle being once broken down, nothing can then stay the
+irruption of the whole horde of pretexts for doing injustice; and
+government and legislation thenceforth become contests between factions
+for power and plunder, instead of instruments for the preservation of
+liberty and justice equally to all.
+</p><p>
+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.
+</p><p>
+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&mdash;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 his rights
+in order that government may protect the remainder. Let a man have the
+use of both 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.
+</p><p>
+If individuals choose to form an association or government, for the
+mutual protection of each other's rights, why bargain for the protection
+of an <i>indefinite</i> 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 every thing, 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
+<i>voluntarily</i> 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 members of
+the association, he thereby acquires a claim upon the association to
+have his own rights protected without diminution.
+</p><p>
+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
+develope 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 developement
+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&mdash;an
+extremity, that would probably never occur but for some antecedent
+injustice.</p></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_II" id="CHAPTER_II"></a>CHAPTER II.</h2>
+
+<p class='center'>WRITTEN CONSTITUTIONS.</p>
+
+
+<p>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&mdash;let us now
+proceed to test the legality of slavery by those written constitutions
+of government, which judicial tribunals actually recognize as
+authoritative.</p>
+
+<p>In making this examination, however, I shall not insist upon the
+principle of the preceding chapter, that there can be no law 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 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 of natural right.&mdash;The rule is laid
+down by the Supreme Court of the United States in these words, to wit:</p>
+
+<p>"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 <i>irresistible clearness</i>,
+to induce a court of justice to suppose a design to effect such
+objects."<a name="FNanchor_3_3" id="FNanchor_3_3"></a><a href="#Footnote_3_3" class="fnanchor">[3]</a></p>
+
+<p>It will probably appear from this examination of the written
+constitutions, that slavery neither has, <i>nor ever had</i> 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.</p>
+
+<p>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.</p>
+
+<p>Let us now consider the first period; that is, from the settlement of
+the country, to the Declaration of Independence.</p>
+
+<div class="footnote"><p><a name="Footnote_3_3" id="Footnote_3_3"></a><a href="#FNanchor_3_3"><span class="label">[3]</span></a> United States <i>vs.</i> Fisher, 2 Cranch, 390.</p></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_III" id="CHAPTER_III"></a>CHAPTER III.</h2>
+
+<p class='center'>THE COLONIAL CHARTERS.</p>
+
+
+<p>When our ancestors came to this country, they brought with them the
+common law of England, including the writ of <i>habeas corpus</i>, (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 prevailed in England, and which have made
+it impossible that her soil should be trod by the foot of a slave.</p>
+
+<p>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.)&mdash;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."<a name="FNanchor_4_4" id="FNanchor_4_4"></a><a href="#Footnote_4_4" class="fnanchor">[4]</a></p>
+
+<p>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 state constitutions are now the fundamental laws of
+our governments.</p>
+
+<p>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.<a name="FNanchor_5_5" id="FNanchor_5_5"></a><a href="#Footnote_5_5" class="fnanchor">[5]</a></p>
+
+<p>No one of all these charters that I have examined&mdash;and I have examined
+nearly all of them&mdash;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.</p>
+
+<p>It was decided by the Court of King's Bench in England&mdash;Lord Mansfield
+being Chief Justice&mdash;before our revolution, and while the English
+Charters were the fundamental law of the colonies&mdash;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&mdash;though only for a temporary purpose, and with no intention of
+remaining&mdash;he nevertheless thereby gave the slave his liberty.</p>
+
+<p>Previous to this decision, the privilege of bringing slaves into
+England, for temporary purposes, and of carrying them away, had long
+been tolerated.</p>
+
+<p>This decision was given in the year 1772.<a name="FNanchor_6_6" id="FNanchor_6_6"></a><a href="#Footnote_6_6" class="fnanchor">[6]</a> And for aught I see, it 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.</p>
+
+<p>The fact, that slavery was <i>tolerated</i> 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&mdash;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.</p>
+
+<p>The fact, that England <i>tolerated</i>, (i.e. did not punish criminally,)
+the African <i>slave-trade</i> at that time, could not legally establish
+slavery in the colonies, <i>any more than it did in England</i>&mdash;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.</p>
+
+<p>Besides, the mere toleration of the slave <i>trade</i> could not make slavery
+itself&mdash;<i>the right of property in man</i>&mdash;lawful any where; 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.</p>
+
+<p>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,
+<i>in any of the thirteen North American colonies</i>. It is doubtful whether
+they ever attempted to do it any where else. It is also doubtful whether
+Parliament had the power&mdash;or perhaps rather it is certain that they had
+not the power&mdash;to legalize it any where, if they had attempted to do
+so.<a name="FNanchor_7_7" id="FNanchor_7_7"></a><a href="#Footnote_7_7" class="fnanchor">[7]</a> 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 "<i>so odious that nothing can be
+suffered to support it, but positive law</i>."&mdash;No such positive law (I
+presume) was ever passed by parliament&mdash;certainly not with reference to
+any of these thirteen colonies.</p>
+
+<p>The statute of 1788, (which I have not seen,) in regard to the slave
+<i>trade</i>, 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.</p>
+
+<p>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,) <i>on
+that coast of Africa</i>, to allow slavery under certain circumstances,
+<i>and within the "settlements" on that coast</i>. 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 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.</p>
+
+<p>But the presumption is, that, even after this statute was passed in
+1750, if the slave trader's <i>right of property</i> 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 decision 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.<a name="FNanchor_8_8" id="FNanchor_8_8"></a><a href="#Footnote_8_8" class="fnanchor">[8]</a></p>
+
+<p>The conclusion of the whole matter is, that until some reason appears
+against them, we are bound by the decision of the King's bench in 1772,
+and the colonial charters. That decision declared that there was, at
+that time, in England, no right of property in man, (notwithstanding
+the English government had for a long time connived at the slave
+trade.)&mdash;The colonial charters required the legislation of the colonies
+to be consonant to reason, and not repugnant or contrary, but
+conformable, or agreeable, as nearly as circumstances would allow, to
+the laws, statutes and rights of the realm of England. That decision,
+then, if correct, settled the law both for England and the colonies. And
+if so, there was no <i>constitutional</i> slavery in the colonies up to the
+time of the revolution.</p>
+
+<div class="footnote"><p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">[4]</span></a> 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."
+</p><p>
+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."
+</p><p>
+The first charter to Carolina, (including both North and South
+Carolina,) dated 1663, authorized the making of laws under this
+proviso&mdash;"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."
+</p><p>
+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."
+</p><p>
+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."
+</p><p>
+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."
+</p><p>
+The charter granted to Sir Edward Plowden had this proviso. "So,
+nevertheless, that the laws aforesaid be 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."
+</p><p>
+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."
+</p><p>
+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, &amp;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."
+</p><p>
+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."
+</p><p>
+The charter to the Massachusetts Bay Colony, (granted by William and
+Mary,) gave "full power and authority, from time to time, to make,
+ordain 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."
+</p><p>
+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."
+</p><p>
+Several other charters, patents, &amp;c. that had a temporary existence,
+might be named, that contained substantially the same provision.</p></div>
+
+<div class="footnote"><p><a name="Footnote_5_5" id="Footnote_5_5"></a><a href="#FNanchor_5_5"><span class="label">[5]</span></a> In the case of the town of Pawlet <i>v.</i> Clark and others,
+the court say&mdash;
+</p><p>
+"Let us now see how far these principles were applicable to New
+Hampshire, at the time of issuing the charter to Pawlet.
+</p><p>
+"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.' <i>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 and privileges.</i> <i>A fortiori</i> the principle applies
+to a royal province."&mdash;(9 Cranch's U. State's Reports, 332-3.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_6_6" id="Footnote_6_6"></a><a href="#FNanchor_6_6"><span class="label">[6]</span></a> Somerset <i>v.</i> Stewart.&mdash;Lofft's Reports, p. 1 to 19, of
+Easter Term, 1772. In the Dublin edition the case is not entered in the
+Index.</p></div>
+
+<div class="footnote"><p><a name="Footnote_7_7" id="Footnote_7_7"></a><a href="#FNanchor_7_7"><span class="label">[7]</span></a> Have parliament the constitutional prerogative of
+abolishing the writ of <i>habeas corpus</i>? 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?</p></div>
+
+<div class="footnote"><p><a name="Footnote_8_8" id="Footnote_8_8"></a><a href="#FNanchor_8_8"><span class="label">[8]</span></a> Mr. Bancroft, in the third volume of his history, (pp. 413,
+14,) says:
+</p><p>
+"And the statute book of England soon declared the opinion of its king
+and its parliament, that 'the trade,'" (by which he 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
+"1795, 8 and 10 Wm. 3, ch. 26." (Should be 1797, 8-9 and 10 Wm. 3, ch.
+26.)
+</p><p>
+Now the truth is that, although this statute may have been, and very
+probably was designed to <i>insinuate</i> 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."
+</p><p>
+The statute does not declare, as Mr. Bancroft asserts, that "the (slave)
+trade is highly beneficial and advantageous to the kingdom and the
+colonies;" but that "<i>the trade to Africa</i> is highly beneficial and
+advantageous," &amp;c. It is an <i>inference</i> of Mr. Bancroft's that "the
+trade to Africa" was the <i>slave</i> trade. Even this inference 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.
+</p><p>
+It is true that the statute assumes that "<i>negroes</i>" 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" <i>slaves</i>, nor assumes that they are slaves. For aught
+that appears from the statute, they were free men and passengers,
+voluntary emigrants, going to "England" and "the plantations and
+colonies" as laborers, as such persons are now going to the British West
+Indies.
+</p><p>
+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 necessary
+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 render any account of them at
+the custom houses.
+</p><p>
+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 <i>slaves</i> in
+"the plantations and colonies" than in "England," where we know they
+could not be slaves; when these things are considered, it is perfectly
+clear, as a <i>legal</i> proposition, that the statute legalized neither
+slavery in the plantations and colonies, nor the slave trade from Africa
+to America&mdash;however we may suppose it to have been designed to hint a
+personal approbation, on the part of parliament, of the actual traffic.
+</p><p>
+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
+<i>all</i> 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.
+</p><p>
+The act is entitled, "<i>An Act to settle the Trade to Africa.</i>" Sec. 1
+recites as follows:&mdash;
+</p><p>
+"Whereas, the Trade to Africa is highly beneficial and advantageous to
+this kingdom and to the Plantations and Colonies thereunto belonging."
+</p><p>
+The act contains <i>twenty-one</i> sections, regulating trade, duties. &amp;.,
+like any other navigation act. "Negroes" are mentioned only in the
+following instances and connexions, to wit:
+</p><p>
+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 be lawful to and for any of the
+subjects of his majesty's realms of England, as well as the said
+Company,(The Royal African Company) to trade from England or any of his
+majesty's plantations or colonies 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 merchandizes to be exported from
+England or any of his majesty's plantations 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, redwood 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.
+</p><p>
+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&mdash;&mdash;, during her stay and
+continuing on the coast of Africa between Cape Blanco and Cape Mount,
+whereof I, A.B. am master."
+</p><p>
+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," &amp;c.
+</p><p>
+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."
+</p><p>
+Sec. 20. "And be it further enacted by the authority aforesaid, that no
+governor, or deputy-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,(The Royal African 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 be allowed, nor any more
+than one imparlance."
+</p><p>
+Sec. 21. "Provided that this act shall continue and be in force
+<i>thirteen years</i>, and from thence to the end of the next sessions of
+parliament, and no longer."
+</p><p>
+Even if this act had legalized, (as in reality it did not legalize,) the
+slave trade during those thirteen years, it would be impossible now to
+distinguish the descendants 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 towards making the existing slavery in this country legal.
+</p><p>
+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.)
+</p><p>
+Mr. Bancroft has committed another still more serious error in his
+statement of the <i>words</i>, (for he professes to quote precise words,) of
+this statute. He says, (vol. 3, p. 414,)
+</p><p>
+"At last, in 1749, to give the highest activity to the trade, (meaning
+the slave trade,) every obstruction to private enterprize was removed,
+and the ports of Africa were laid open to English competition, for 'the
+<i>slave</i> trade,'&mdash;such" (says Mr. Bancroft,) "are the words of the
+statute&mdash;'the <i>slave</i> trade is very advantageous to Great Britain.'"
+</p><p>
+As words are, in this case, things&mdash;and things of the highest <i>legal</i>
+consequence&mdash;and as this history is so extensively read and received as
+authority&mdash;it becomes important, in a legal, if not historical, point of
+view, to correct so important an error as that of the word <i>slave</i> in
+this statement. "The <i>words</i> of the statute" are <i>not</i> that "the <i>slave</i>
+trade," but that "<i>the trade to and from Africa</i> is very advantageous to
+Great Britain." "The trade to and from Africa" no more means, <i>in law</i>,
+"the <i>slave</i> trade," than does the trade to and from China. From aught
+that appears, then, from <i>so much</i> 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."
+</p><p>
+From the words immediately <i>succeeding</i> those quoted by Mr. Bancroft
+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:
+</p><p>
+"<i>An Act for extending and improving the trade to Africa.</i>"
+</p><p>
+"Whereas, the trade to and from Africa is very advantageous to Great
+Britain, <i>and necessary for supplying the plantations and colonies
+thereunto belonging, with a sufficient number of</i> <span class="smcap">NEGROES</span> <i>at
+reasonable rates</i>; 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," &amp;c.
+</p><p>
+"Negroes" were not slaves by the English law, and therefore the word
+"negroes," in this preamble, does not <i>legally</i> mean slaves. For aught
+that appears from the words of the preamble, <i>or even from any part of
+the statute itself</i>, 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 <i>legal</i> 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 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.
+</p><p>
+We are obliged to put this construction upon this preamble, for the
+further reason that it corresponds with the enacting clauses of the
+statute&mdash;not one of which mentions such a thing <i>as the transportation
+of slaves to, or the sale of slaves in</i> "the plantations and colonies."
+The first section of the act is in these words, to wit.
+</p><p>
+"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 <i>goods</i>, <i>wares and
+merchandizes</i>, as he or they shall think fit, without any restraint
+whatsoever, save as is herein after expressed."
+</p><p>
+Here plainly is no authority given "to trade and traffic" in any thing
+except what is known either to the English law, or the law of nature, as
+"goods, wares or merchandizes"&mdash;among which <i>men</i> were <i>not</i> known,
+either to the English law, or the law of nature.
+</p><p>
+The second section of the act is in these words:
+</p><p>
+"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."
+</p><p>
+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.
+</p><p>
+The 20th section of the act is in these words:
+</p><p>
+"And be it further enacted by the authority aforesaid, that no commander
+or master of any ship trading to Africa, shall by <i>fraud</i>, <i>force or
+violence</i>, 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."
+</p><p>
+Now, although there is perhaps no good reason to doubt that the <i>secret</i>
+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
+<i>practically</i> 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 29th section contains a special
+prohibition to individuals, under penalty, to do so, no one can pretend
+that the trade was legalized. If the penalty had been but one pound,
+instead of one hundred pounds, it would have been sufficient, <i>in law</i>,
+to have 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.
+</p><p>
+The only possible <i>legal</i> inference from the statute, <i>so far as it
+concerns the "supplying the plantations and colonies with negroes at
+reasonable rates</i>," 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.
+</p><p>
+But although there is, in this statute, no authority given for&mdash;but, on
+the contrary, a special prohibition upon&mdash;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
+<i>on the coast of Africa</i>, 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, <i>on the coast of
+Africa</i>, 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.
+</p><p>
+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:
+</p><p>
+The third section of the act refers to another act of parliament
+"divesting the Royal African Company of their <i>charter</i>, forts, castles
+and military stores, canoe-men and <i>castle-slaves</i>;" 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
+soldiers therein, and also the state and condition of the military
+stores, castles, <i>slaves</i>, canoes and other vessels and things,
+belonging to the said company, <i>and necessary for the use and defence of
+the said forts and settlements</i>, and shall with all possible despatch
+report how they find the same."
+</p><p>
+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.
+</p><p>
+But the most distinct approbation given to slavery by the act, is
+implied in the 28th section, in these words:
+</p><p>
+"That it shall and may be lawful for any of his majesty's subjects
+trading to Africa, for the security of their goods and <i>slaves</i>, to
+erect houses and warehouses, under the protection of the said forts,"
+&amp;c.
+</p><p>
+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 <i>on
+the coast of Africa</i>, 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
+<i>toleration</i> even of slavery any where, except upon the coast of Africa.
+Had slavery been positively and explicitly legalized on the coast of
+Africa, it would still have been a local institution.
+</p><p>
+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.
+</p><p>
+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.
+</p><p>
+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, <i>in general</i>, 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&mdash;(a thing, by the way, that
+could now be proved in no case whatever.) This act was passed in
+1749-50, and could therefore do nothing towards legalizing the slavery
+of all those who had, for an hundred and thirty years previous, been
+held in bondage in Virginia and elsewhere. And as no distinction can now
+be traced between the descendants of those who were 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.</p></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_IV" id="CHAPTER_IV"></a>CHAPTER IV.</h2>
+
+<p class='center'>COLONIAL STATUTES.</p>
+
+
+<p>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: <i>that it did not
+sufficiently define the persons who might be made slaves</i>.</p>
+
+<p>Slavery, if it can be legalized at all, can be legalized only by
+positive legislation. Natural law gives it no aid. Custom imparts to it
+no legal sanction. This was the doctrine of the King's Bench in
+Somerset's case, as it is the doctrine of common sense. Lord Mansfield
+said, "So high an act of dominion must be recognized by the law of the
+country where it is used.* * * * The state of slavery is of such a
+nature, that it is incapable of being introduced on any reasons, moral
+or political&mdash;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."</p>
+
+<p>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 <i>letter</i> of the law, as to the
+persons to be made slaves, the efficacy of all other slave legislation
+is defeated simply by that uncertainty.</p>
+
+<p>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&mdash;<i>under the United States
+constitution</i>&mdash;and indeed under the state constitutions also&mdash;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.</p>
+
+<p>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.&mdash;At
+length slaves had in this way become so numerous, that some regulations
+became necessary, and the colonial governments began to pass statutes,
+which <i>assumed</i> 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 baptise their slaves,<a name="FNanchor_9_9" id="FNanchor_9_9"></a><a href="#Footnote_9_9" class="fnanchor">[9]</a>
+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 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.</p>
+
+<p><i>Virginia.</i> 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 <i>servants</i>, not being Christians, imported into this
+country by shipping, shall be slaves for their lives."<a name="FNanchor_10_10" id="FNanchor_10_10"></a><a href="#Footnote_10_10" class="fnanchor">[10]</a></p>
+
+<p>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," &amp;c., imported, should be slaves. And it was not until 1748,
+<i>after slavery had existed an hundred and twenty-eight years</i>, that this
+description was changed for the following:</p>
+
+<p>"That all <i>persons</i>, who have been or shall be imported into this
+colony," &amp;c., &amp;c., shall be slaves.<a name="FNanchor_11_11" id="FNanchor_11_11"></a><a href="#Footnote_11_11" class="fnanchor">[11]</a></p>
+
+<p>In 1776, the only statute in Virginia, under which the slaveholders
+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.<a name="FNanchor_12_12" id="FNanchor_12_12"></a><a href="#Footnote_12_12" class="fnanchor">[12]</a></p>
+
+<p>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 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&mdash;furnished by the
+constitution of the United States&mdash;that all are free, few or no
+exceptions could now be proved.</p>
+
+<p>In North Carolina no general law at all was passed, prior to the
+revolution, declaring who might be slaves,&mdash;(See Iredell's statutes,
+revised by Martin.)</p>
+
+<p>In South Carolina, the only statutes, prior to the revolution, that
+attempted to designate the slaves, was passed in 1740&mdash;after slavery had
+for a long time existed. And even this statute, in reality, defined
+nothing; for the whole purport of it was, to declare that all negroes,
+Indians, mulattoes and mestizoes, <i>except those who were then free</i>,
+should be slaves. Inasmuch as no prior statute had ever been passed,
+declaring who should be slaves, <i>all were legally free</i>; and therefore
+all came within the exception in favor of free persons.<a name="FNanchor_13_13" id="FNanchor_13_13"></a><a href="#Footnote_13_13" class="fnanchor">[13]</a></p>
+
+<p>The same law, in nearly the same words, was passed in Georgia, in 1770.</p>
+
+<p>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.</p>
+
+<div class="footnote"><p><a name="Footnote_9_9" id="Footnote_9_9"></a><a href="#FNanchor_9_9"><span class="label">[9]</span></a> "<i>Chastised.</i>" 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."
+</p><p>
+<i>Brevard's Digest, vol. 2, p. 130.</i>
+</p><p>
+"<i>Baptised.</i>" In 1712 South Carolina passed this act:
+</p><p>
+"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:
+<i>Be it therefore enacted</i>, 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
+baptised. But that notwithstanding such slave or slaves shall receive
+and profess the Christian religion, and be baptised, 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."&mdash;<i>Grimke, p. 18. Brevard, vol. 2, p. 229.</i>
+</p><p>
+In 1667, the following statute was passed in Virginia:
+</p><p>
+"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; <i>It is enacted and declared by this grand assembly, and the
+authority thereof</i>, that the confering 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 endeavor the
+propagation of Christianity by permitting children, though slaves, or
+those of greater growth, if capable to be admitted to that
+sacrament."&mdash;<i>Hening's Statutes, vol. 2, p. 260.</i></p></div>
+
+<div class="footnote"><p><a name="Footnote_10_10" id="Footnote_10_10"></a><a href="#FNanchor_10_10"><span class="label">[10]</span></a> Hening, vol. 2, p. 283.</p></div>
+
+<div class="footnote"><p><a name="Footnote_11_11" id="Footnote_11_11"></a><a href="#FNanchor_11_11"><span class="label">[11]</span></a> Hening, vol. 5, p. 547-8.</p></div>
+
+<div class="footnote"><p><a name="Footnote_12_12" id="Footnote_12_12"></a><a href="#FNanchor_12_12"><span class="label">[12]</span></a> 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:
+</p><p>
+"That all and every other act and acts, clause and clauses, heretofore
+made, for or concerning any matter or thing within the provision of this
+act, shall be and are hereby repealed."&mdash;<i>Hening's Statutes, vol. 6, p.
+369.</i>
+</p><p>
+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, <i>as against all prior legislation</i>. 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:
+</p><p>
+"That all persons <i>who have been</i>, 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."&mdash;<i>Hening, vol. 6, p. 356-7.</i>
+</p><p>
+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."</p></div>
+
+<div class="footnote"><p><a name="Footnote_13_13" id="Footnote_13_13"></a><a href="#FNanchor_13_13"><span class="label">[13]</span></a> The following is the preamble and the important enacting
+clause of this statute of 1740:
+</p><p>
+"Whereas, in his majesty's plantations in America, slavery has been
+introduced 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 vigor and cruelty
+over them; and that the public peace and order of this province may be
+preserved: <i>Be it enacted</i>, That all negroes, Indians, (<i>free</i> Indians
+in amity with this government, and negroes, mulattos and mestizoes, <i>who
+are now free, excepted</i>,) mulattos and mestizoes, who now are or shall
+hereafter be in this province, and all their issue and offspring born or
+to be born, shall be and they are hereby declared to be and remain
+forever hereafter absolute slaves, and shall follow the condition of the
+mother," &amp;c.&mdash;<i>Grimke, p. 163-4. Brevard, vol. 2, p. 229.</i></p></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_V" id="CHAPTER_V"></a>CHAPTER V.</h2>
+
+<p class='center'>THE DECLARATION OF INDEPENDENCE.</p>
+
+
+<p>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?</p>
+
+<p>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 themselves from their allegiance to
+the crown, was avowed by the people of the country&mdash;and that too in the
+same instrument that declared the absolution&mdash;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?</p>
+
+<p>It is sufficient for our purpose, if it be admitted that this principle
+was the law of the country at that particular time, (1776)&mdash;even though
+it had continued to be the law only for 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&mdash;(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 <i>since</i> been <i>constitutionally</i> established. And
+to show this, he must show an express <i>constitutional</i> 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.</p>
+
+<p>But again. The people of this country&mdash;in the very instrument by which
+they first announced their independent political existence, and first
+asserted their right to establish governments of their own&mdash;declared
+that the natural and inalienable right of all men to life, liberty and
+the pursuit of happiness, was a "<i>self-evident truth</i>."</p>
+
+<p>Now, all "<i>self-evident truths</i>," 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, and constitute an
+essential part of all constitutions, compacts and systems of government
+whatsoever.&mdash;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 the "self-evident truths" which must be acted upon in the
+administration of law. And therefore they are <i>all</i> taken for granted,
+unless particular ones be plainly denied.</p>
+
+<p>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.</p>
+
+<p>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, <i>that
+truth</i> constitutes a part of all our laws and all our constitutions,
+unless it have been unequivocally and authoritatively denied.</p>
+
+<p>It will hereafter be shown that this "self-evident truth" has <i>never
+been denied</i> 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
+re-asserted the same truth in nearly every state constitution since
+adopted. We have virtually re-asserted 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.&mdash;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, <i>as a truth</i>, has never been denied by us, <i>as a
+people</i>, in any authentic form, or otherwise than impliedly 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.</p>
+
+<p>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. <i>But it is simply
+because they will not.</i> 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&mdash;all our authentic,
+avowed, open and fundamental law.</p>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_VI" id="CHAPTER_VI"></a>CHAPTER VI.</h2>
+
+<p class='center'>THE STATE CONSTITUTIONS OF 1789.</p>
+
+
+<p>Of all the state constitutions, that were in force at the adoption of
+the constitution of the United States, in 1789, <i>not one of them
+established, or recognized slavery</i>.</p>
+
+<p>All those parts of the state constitutions, (i.e. of the old thirteen
+states,) that recognize and attempt to sanction slavery, <i>have been
+inserted, by amendments, since the adoption of the constitution of the
+United States</i>.</p>
+
+<p>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.<a name="FNanchor_14_14" id="FNanchor_14_14"></a><a href="#Footnote_14_14" class="fnanchor">[14]</a></p>
+
+<p>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.</p>
+
+<p>The only provisions or words in any of them, that could be claimed by
+any body as recognitions of slavery, are the following, viz.</p>
+
+<p>1. The use of the words "our negroes" in the preamble to the
+constitution of Virginia.</p>
+
+<p>2. The mention of "slaves" in the preamble to the constitution of
+Pennsylvania.</p>
+
+<p>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.</p>
+
+<p>4. The use, in several of the constitutions, of the words "free" and
+"freemen."</p>
+
+<p>As each of these terms and clauses may be claimed by some persons as
+recognitions of slavery, they are worthy of particular notice.</p>
+
+<p>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 <i>our negroes</i> 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."</p>
+
+<p>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, <i>in any capacity</i>&mdash;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
+<i>legal</i> existence, this reference to "negroes" authorizes no legal
+inference whatever in regard to slavery.</p>
+
+<p>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."</p>
+
+<p>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."</p>
+
+<p>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 <i>all</i> the
+inhabitants) "of the state of Pennsylvania."</p>
+
+<p>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."</p>
+
+<p>The 46th section of the frame of government is in these words.</p>
+
+<p>"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."</p>
+
+<p>Slavery was clearly impossible under these two constitutional
+provisions, to say nothing of others.</p>
+
+<p>2. Several of the constitutions provide that all the laws of the
+colonies, previously "<i>in force</i>," should continue in force until
+repealed, <i>unless repugnant to some of the principles of the
+constitutions themselves</i>.</p>
+
+<p>Maryland, New-York, New-Jersey, South Carolina, and perhaps one or two
+others had provisions of this character. <i>North Carolina had none,
+Georgia none, Virginia none</i>. The slave laws of these three latter
+states, then, necessarily fell to the ground on this change of
+government.</p>
+
+<p>Maryland, New-York, New-Jersey and South-Carolina had acts upon their
+statute books, <i>assuming</i> the existence of slavery, and 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"&mdash;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 <i>legally</i> "in force," however they might have been
+actually carried into execution as a matter of might, or of pretended
+law, by the white race.</p>
+
+<p>This objection applies to the slave acts of all the colonies. None of
+them could be continued under this provision.&mdash;None of them, legally
+speaking, were "laws in force."</p>
+
+<p>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 <i>legally</i> "in force."</p>
+
+<p>New-Jersey also was in the same situation. She had slave statutes; but
+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 * * * * <i>shall remain in force</i>, until altered by a future law
+of the legislature; such parts only as are repugnant to the rights and
+privileges contained in this charter." (Sec. 22.)</p>
+
+<p>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:</p>
+
+<p>"Sec. 3. That the <i>inhabitants</i>"&mdash;mark the word, for it includes <i>all</i>
+the inhabitants&mdash;"that the <i>inhabitants</i> of Maryland are entitled to the
+common law of England, and the trial by jury, according to the course of
+that law," &amp;c.</p>
+
+<p>This guaranty, of "the common law of England" to <i>all</i> "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.</p>
+
+<p>4. Several of these state constitutions have used the words "free" and
+"freemen."</p>
+
+<p>For instance. That of South Carolina provided, (Sec. 13,) that the
+electors of that state should be "<i>free</i> white men." That of Georgia
+(Art. 11,) and that of North Carolina (Art. 40,) use the term "free
+citizen." That of Pennsylvania (Sec. 42,) has the term "free denizen."</p>
+
+<p>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.</p>
+
+<p>Several of the constitutions, to wit, those of Georgia, South Carolina,
+North Carolina, Maryland, Delaware, Pennsylvania, New-York&mdash;but not
+Virginia, New-Jersey, Massachusetts or New-Hampshire&mdash;repeatedly use the
+word "freeman" or "freemen," when describing the electors, or other
+members of the state.</p>
+
+<p>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?</p>
+
+<p>If it be answered, that they are used in the sense first mentioned, to
+wit, as the correlatives or opposites of slavery&mdash;then it would be
+argued that they involved a recognition, at least, of the existence of
+slavery.</p>
+
+<p>But this argument&mdash;whatever it might be worth to support an implied
+admission of the <i>actual</i> existence of slavery&mdash;would be entirely
+insufficient to support an implied admission either of its <i>legal</i>, or
+its <i>continued</i> 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
+making 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.</p>
+
+<p>It is a rule of law, in the construction of all statutes, contracts and
+legal instruments whatsoever&mdash;<i>that is, those which courts design, not
+to invalidate, but to enforce</i>&mdash;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 any
+thing 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.</p>
+
+<p>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 <i>could</i>
+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 <i>lawfully</i> pervert to some purpose of injustice.
+There would obviously be no security for the honest administration of
+any honest law or contract whatsoever.</p>
+
+<p>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.</p>
+
+<p>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?</p>
+
+<p>Among the definitions given by Noah Webster are these:</p>
+
+<p>"<i>Freeman.</i> One who enjoys, or is entitled to a franchise or peculiar
+privilege; as the freemen of a city or state."</p>
+
+<p>"<i>Free.</i> Invested with franchises; enjoying certain immunities; with
+of&mdash;as a man <i>free</i> of the city of London."</p>
+
+<p>"Possessing without vassalage, or slavish conditions; as a man <i>free</i> of
+his farm&mdash;"</p>
+
+<p>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"&mdash;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.</p>
+
+<p>Again. A man was said to be "free of a particular trade in the city of
+London"&mdash;meaning thereby, that by the bye-laws of the city of London, he
+was permitted to follow that trade&mdash;a privilege which others could not
+have without having served an apprenticeship in the city, or having
+purchased the privilege of the city government.</p>
+
+<p>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
+"<i>freemen</i> of the company," or "<i>free</i> members of the company;" and were
+said to be "<i>free</i> of the said company." The citizens of an incorporated
+city were called "the freemen of the city," as "freemen of the city of
+London."</p>
+
+<p>In Jacob's Law Dictionary the following definitions, among others, are
+given of the word "freemen."</p>
+
+<p>"<i>Freeman&mdash;liber homo.</i>"* * * * "In the distinction of a freeman from a
+vassal under the feudal policy, <i>liber homo</i> was commonly opposed to
+<i>vassus</i>, or <i>vassalus</i>; the former denoting an <i>allodial</i> proprietor;
+the latter one who held of a superior."</p>
+
+<p>"The title of a <i>freeman</i> 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 <i>freemen</i>."</p>
+
+<p>"There are three ways to be a <i>freeman</i> of London; by servitude of an
+apprenticeship; by birthright, as being the son of a <i>freeman</i>; and by
+redemption, i.e. by purchase, under an order of the court of aldermen."</p>
+
+<p>"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 <i>free
+of one trade</i> may use another."</p>
+
+<p>"Elections of aldermen and common-councilmen are to be by <i>freemen</i>
+householders."</p>
+
+<p>"An agreement on marriage, that the husband shall take up the freedom of
+London, binds the distribution of the effects."</p>
+
+<p>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, &amp;c.</p>
+
+<p>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
+Victoria, 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."</p>
+
+<p>But the more common and important signification of the words is to
+designate the <i>citizens</i>, 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"&mdash;"freeman of the realm," &amp;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
+<i>citizen</i>.</p>
+
+<p>But throughout the English law, and among all the variety of ways, in
+which the words "free" and "freemen" are used, as <i>legal</i> terms, they
+are <i>never used as the correlatives, or opposites of slaves or
+slavery</i>&mdash;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.</p>
+
+<p>This use of the words "free" and "freemen," which is common to the
+English law, was introduced into this country at its first settlement,
+in all, or very nearly all the colonial charters, patents, &amp;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.<a name="FNanchor_15_15" id="FNanchor_15_15"></a><a href="#Footnote_15_15" class="fnanchor">[15]</a></p>
+
+<p>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,"
+"freeman of said company," "freemen of the said company and body
+politick," &amp;c. (See charter of Rhode Island.)</p>
+
+<p>Many, if not all the charters had a provision similar in substance to
+the following in the charter to Rhode Island, viz:</p>
+
+<div class="blockquot"><p>"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 <i>free</i> 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."</p></div>
+
+<p>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&mdash;that is, as distinguishing
+a native born citizen, and one capable of holding real estate, &amp;c. from
+a foreigner, <i>not naturalized</i>, and on that account subject to certain
+disabilities, such as being incompetent to hold real estate.</p>
+
+<div class="blockquot"><p>"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, <i>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</i>, and so
+injurious to the prosperity of this province and territories thereof.
+<i>Be it enacted</i>, by the proprietary and governor of the province and
+counties aforesaid, by and with the advice and consent of the
+deputies of the <i>freemen</i> thereof, in assembly met, <i>That all persons
+who are strangers and foreigners</i>, that do now inhabit this province
+and counties aforesaid, <i>that hold land in fee in the same, according
+to the law of a freeman</i>, 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, <i>shall
+be held and reputed freemen of the province and counties aforesaid,
+in as ample and full a manner as any person residing therein</i>. 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, <i>for the aforesaid freedom</i>, the said person shall be
+admitted on the conditions herein expressed, paying at his admission
+twenty shillings sterling, and no more, any thing in this law, or any
+other law, act or thing in this province, to the contrary in any wise
+notwithstanding."</p>
+
+<p>"Given at Chester," &amp;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. <span class="smcap">W. Penn.</span>"<a name="FNanchor_16_16" id="FNanchor_16_16"></a><a href="#Footnote_16_16" class="fnanchor">[16]</a></p></div>
+
+<p>Up to the time of our revolution, the <i>only</i> meaning which the words
+"free" and "freemen" had, in the English law, <i>in the charters granted
+to the colonies</i>, 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&mdash;for the very sufficient reason that all
+these <i>fundamental</i> laws presumed that there were no slaves.</p>
+
+<p>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?</p>
+
+<p>The legal rule of interpretation before mentioned, viz: that an
+innocent meaning must be given to all words that are susceptible of
+it&mdash;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:&mdash;Several of these constitutions have themselves explicitly
+given to the words this meaning. While not one of them have 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.</p>
+
+<p>The constitution of Georgia (adopted in 1777) evidently uses the word
+"free" in this sense, in the following article:</p>
+
+<div class="blockquot"><p>"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; <i>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</i>, in the manner as may be
+directed by any future legislature, <i>then, and in such case</i>, he
+shall be entitled to a <i>vote, and represent</i>, as before directed, and
+enjoy all the other benefits of a <span class="smcap">FREE</span> citizen."</p></div>
+
+<p>The constitution of North Carolina, (adopted in 1776), used the word in
+a similar sense, as follows:</p>
+
+<div class="blockquot"><p>"40. That every <i>foreigner</i>, 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, <i>and after one year's residence</i> be deemed a
+<span class="smcap">FREE</span> citizen."</p></div>
+
+<p>This constitution also repeatedly uses the word "freeman;" meaning
+thereby "a free citizen," as thus defined.</p>
+
+<p>The constitution of Pennsylvania, (adopted in 1776,) uses the word in
+the same sense:</p>
+
+<div class="blockquot"><p>"Sec. 42. Every <i>foreigner</i>, 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; <i>and after one year's
+residence, shall be deemed a</i> <span class="smcap">FREE</span> <i>denizen thereof</i>, 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 year's residence."</p></div>
+
+<p>The constitution of New York, (adopted in 1777,) uses the word in the
+same manner:</p>
+
+<div class="blockquot"><p>"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 assembly,
+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.
+<i>Provided always</i>, That every person who now is a <i>freeman of the
+city of Albany, or who was made a freeman of the city of New York</i>,
+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."</p></div>
+
+<p>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:</p>
+
+<div class="blockquot"><p>Sec. 13. The qualification of electors shall be that "every <i>free
+white man</i>, and no other person," &amp;c., "shall be deemed a person
+qualified to vote for, and shall be capable of being elected a
+representative."</p></div>
+
+<p>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 clearly is, that <i>some</i> "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 <i>all</i> "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 <i>some</i> "white" persons were, or might be
+slaves. There is therefore no alternative but to give to the word
+"free," in this instance, the same meaning that it has in the
+constitutions of Georgia, North Carolina and Pennsylvania.</p>
+
+<p>In 1704 South Carolina passed an act entitled, "<i>An act for making
+aliens <span class="smcap">FREE</span> of this part of the Province.</i>"&mdash;This statute
+remained in force until 1784, when it was repealed by an act entitled
+"<i>An act to confer the right of citizenship on aliens</i>"<a name="FNanchor_17_17" id="FNanchor_17_17"></a><a href="#Footnote_17_17" class="fnanchor">[17]</a></p>
+
+<p>One more example of this use of the word "<i>freeman</i>." The constitution
+of Connecticut, adopted as late as 1818, has this provision:</p>
+
+<div class="blockquot"><p>"Art. 6. Sec. 1. All persons who have been, or <i>shall hereafter</i>,
+previous to the ratification of this constitution, <i>be admitted
+freemen</i>, according to the existing laws of this State, shall be
+electors."</p></div>
+
+<p>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.</p>
+
+<p>I have found, in <i>none</i> 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 <i>constitutional</i> slavery in the
+country up to the adoption of the constitution of the United States.</p>
+
+<div class="footnote"><p><a name="Footnote_14_14" id="Footnote_14_14"></a><a href="#FNanchor_14_14"><span class="label">[14]</span></a> 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.
+</p><p>
+These early Constitutions ought to be collected and published with
+appropriate notes.</p></div>
+
+<div class="footnote"><p><a name="Footnote_15_15" id="Footnote_15_15"></a><a href="#FNanchor_15_15"><span class="label">[15]</span></a> Since that time the words "free" and "freemen" have been
+gradually falling into disuse, and the word citizen been
+substituted&mdash;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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_16_16" id="Footnote_16_16"></a><a href="#FNanchor_16_16"><span class="label">[16]</span></a> Dallas's edition of the Laws of Pennsylvania, vol. 1,
+Appendix, page 25.</p></div>
+
+<div class="footnote"><p><a name="Footnote_17_17" id="Footnote_17_17"></a><a href="#FNanchor_17_17"><span class="label">[17]</span></a> Cooper's edition of the Laws of South Carolina, vols. 2
+and 4. "Aliens,"</p></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_VII" id="CHAPTER_VII"></a>CHAPTER VII.</h2>
+
+<p class='center'>THE ARTICLES OF CONFEDERATION.</p>
+
+
+<p>The Articles of Confederation, (formed in 1778,) contained no
+recognition of slavery. The only words in them, that could be claimed by
+any body as recognizing slavery, are the following, in Art. 4, Sec. 1.</p>
+
+<div class="blockquot"><p>"The better to secure and perpetuate mutual friendship and
+intercourse among the people of the different States in this Union,
+<i>the free inhabitants</i> of each of these States, paupers, vagabonds
+and fugitives from justice excepted, shall be entitled to all the
+privileges and immunities of <i>free citizens</i> in the several States;
+and <i>the people</i> of each State shall have free ingress and regress to
+and from any other State, and shall enjoy therein all the privileges
+of trade and commerce, subject to the same duties, impositions and
+restrictions, as the inhabitants thereof respectively."</p></div>
+
+<p>There are several reasons why this provision contains no legal
+recognition of slavery.</p>
+
+<p>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.</p>
+
+<p>2. The rules of law require that an innocent meaning should be given to
+all words that will bear an innocent meaning.</p>
+
+<p>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.</p>
+
+<p>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,&mdash;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 <i>some</i> of the
+"citizens" were, or might be slaves&mdash;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, &amp;c.,
+&amp;c., and in these respects were distinguished from aliens.&mdash;Yet a
+property qualification was necessary, in some, if not all the States, to
+entitle even such to the franchises of suffrage, and of eligibility to
+office.</p>
+
+<p>The terms "free inhabitants" and "people" were probably used as
+synonymous either with "free citizens," or with "citizens" not
+"free"&mdash;that is, not possessing the franchises of suffrage and
+eligibility to office.</p>
+
+<p>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&mdash;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.&mdash;Even the privilege of
+residence he assumes to be a franchise entitling one to the denomination
+of "free."</p>
+
+<div class="blockquot"><p>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 <i>free
+inhabitants</i> of each of these states, paupers, vagabonds, and
+fugitives from justice excepted, shall be entitled to all the
+privileges and immunities of <i>free citizens</i> in the several states;
+and <i>the people</i> of each state shall, in every other, enjoy all the
+privileges of trade and commerce,' &amp;c. There is a confusion of
+language here, which is remarkable. Why the terms <i>free inhabitants</i>
+are used in one part of the article, <i>free citizens</i> in another, and
+<i>people</i> 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 <i>free inhabitants</i> of a state, although not
+citizens of such state, are entitled, in every other state, to all
+the privileges of <i>free citizens</i> 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 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.</p>
+
+<p>"We owe it to mere casualty, that very serious embarrassments on this
+subject have been hitherto escaped. By the laws of several states,
+certain description of aliens, who had rendered themselves obnoxious,
+were laid under interdicts inconsistent, not only with the rights of
+citizenship, but with the privileges of residence. What would have
+been the consequence, if such persons, by residence, or otherwise,
+had acquired the character of citizens under the laws of another
+state, and then asserted their rights as such, both to residence and
+citizenship, within the state proscribing them? Whatever the legal
+consequences might have been, other consequences would probably have
+resulted of too serious a nature, not to be provided against. The new
+constitution has accordingly, with great propriety, made provision
+against them, and all others proceeding from the defect of the
+confederation on this head, by authorizing the general government to
+establish an uniform rule of naturalization throughout the United
+States."</p></div>
+
+<p>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.&mdash;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."</p>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_VIII" id="CHAPTER_VIII"></a>CHAPTER VIII.</h2>
+
+<p class='center'>THE CONSTITUTION OF THE UNITED STATES.</p>
+
+
+<p>We come now to the period commencing with the adoption of the
+constitution of the United States.</p>
+
+<p>We have already seen that slavery had not been authorized or established
+by any of the fundamental constitutions or charters that had existed
+previous to this time; that it had always been a mere abuse sustained by
+the common consent of the strongest party, in defiance of the avowed
+constitutional principles of their governments. And the question now is,
+whether it was constitutionally established, authorized or sanctioned by
+the constitution of the United States?</p>
+
+<p>It is perfectly clear, in the first place, that the constitution of the
+United States did not, <i>of itself, create or establish</i> slavery as a
+<i>new</i> institution; or even give any authority to the state governments
+to establish it as a new institution.&mdash;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 <i>did</i> thus recognize and
+sanction slavery as an <i>existing</i> institution?</p>
+
+<p>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 <i>not</i> 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.</p>
+
+<p>Even if the constitution of the United States had <i>intended</i> to
+recognize slavery, as a constitutional <i>state</i> institution, such
+intended recognition would have failed of effect, and been legally void,
+because slavery then had no constitutional existence to be recognized.</p>
+
+<p>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&mdash;derived from the <i>state</i>
+constitutions&mdash;to order arbitrarily that infant children, or that men
+without the charge of crime, should be maimed&mdash;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&mdash;would have
+been mere surplussage&mdash;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.</p>
+
+<p>We might here safely rest the whole question&mdash;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&mdash;if
+there were any such&mdash;being founded on an error as to what the state
+constitutions really did authorize, necessarily falls to the ground, a
+defunct intention.</p>
+
+<p>We make a stand, then, at this point, and insist that the main
+question&mdash;the only material question&mdash;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.</p>
+
+<p>The constitution of the United States, at its adoption, certainly took
+effect upon, and made citizens of <i>all</i> "the people of the United
+States," who were <i>not slaves</i> under the state constitutions. No one can
+deny a proposition so self-evident as that. If, then, the <i>State</i>
+constitutions, then existing, authorized no slavery at all, the
+constitution of the United States took effect upon, and made citizens of
+<i>all</i> "the people of the United States," without discrimination. And if
+<i>all</i> "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 <i>state</i> governments to reduce any of them to
+slavery. They were thenceforth citizens of a higher government, under a
+constitution that was "the supreme law of the land," "any thing in the
+constitution or laws of the states to the contrary notwithstanding." If
+the state governments could enslave citizens of the United States, the
+state constitutions, and not the constitution of the United States,
+would be the "supreme law of the land"&mdash;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.</p>
+
+
+<p class='center'>SECONDLY.</p>
+
+<p>Although we might stop&mdash;we yet do not choose to stop&mdash;at the point last
+suggested. We will now go further, and attempt to show, specifically
+from its provisions, that the constitution of the United States, not
+only does not recognize or sanction slavery, as a legal institution, but
+that, on the contrary, it presumes all men to be free; that it
+positively denies the right of property in man; and that it, <i>of
+itself</i>, makes it impossible for slavery to have a legal existence in
+any of the United States.</p>
+
+<p>In the first place&mdash;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 <i>intended</i> to sanction
+it; for if it <i>intended</i> to sanction it, it <i>did</i> thereby necessarily
+sanction it, (that is, if slavery then had any constitutional existence
+to be sanctioned.) The <i>intentions</i> of the constitution are the only
+means whereby it sanctions any thing. And its intentions necessarily
+sanction everything to which they apply, and which, in the nature of
+things, they are competent to sanction. To say, therefore, that the
+constitution <i>intended</i> to sanction slavery, is the same as to say that
+it <i>did</i> sanction it; which is begging the whole question, and
+substituting mere assertion for proof.</p>
+
+<p>Why, then, do not men say distinctly, that the constitution <i>did</i>
+sanction slavery, instead of saying that it <i>intended</i> to sanction it?
+We are not accustomed to use the word "<i>intention</i>," when speaking of
+the other grants and sanctions of the constitution. We do not say, for
+example, that the constitution <i>intended</i> to authorize congress "to coin
+money," but that it <i>did</i> 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 <i>intended</i> 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 <i>intended</i> to sanction it, instead of
+saying distinctly, as we do in the other cases, that it <i>did</i> sanction
+it? The reason is obvious. If they were to say unequivocally that it
+<i>did</i> sanction it, they would lay themselves under the necessity of
+pointing to the <i>words</i> that sanction it; and they are aware that the
+<i>words alone</i> of the constitution do not come up to that point. They,
+therefore, assert simply that the constitution <i>intended</i> to sanction
+it; and they then attempt to support the assertion by quoting certain
+words and phrases, which they say are <i>capable</i> of covering, or rather
+of concealing such an intention; and then by the aid of exterior,
+circumstantial and historical evidence, they attempt to enforce upon the
+mind the conclusion that, as matter of fact, such was the intention of
+those who <i>drafted</i> the constitution; and thence they finally infer that
+such was the intention of the constitution itself.</p>
+
+<p>The error and fraud of this whole procedure&mdash;and it is one purely of
+error and fraud&mdash;consists in this&mdash;that it artfully substitutes the
+supposed intentions of those who drafted the constitution, for the
+intentions of the constitution itself; and, secondly, it personifies the
+constitution as a crafty individual; capable of both open and secret
+intentions; capable of legally participating in, and giving effect to
+all the subtleties and double dealing of knavish men; and as actually
+intending to secure slavery, while openly professing to "secure and
+establish liberty and justice." It personifies the constitution as an
+individual capable of having private and criminal intentions, which it
+dare not distinctly avow, but only darkly hint at, by the use of words
+of an indefinite, uncertain and double meaning, whose application is to
+be gathered from external circumstances.</p>
+
+<p>The falsehood of all these imaginings is apparent, the moment it is
+considered that the constitution is not a <i>person</i>, 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 <i>men</i> 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 <i>can</i> have, no soul, no "<i>intentions</i>," 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&mdash;as the advocates of slavery all assume; but its legal meaning
+is the sole guide to its intentions. This distinction is all important
+to be observed; for if we can gratuitously assume the intentions of a
+legal instrument to be what we may wish them to be, and can then strain
+or pervert the ordinary meaning of its words, in order to make them
+utter those intentions, we can make any thing we choose of any legal
+instrument whatever. The legal meaning of the words of an instrument is,
+therefore, necessarily our only guide to its intentions.</p>
+
+<p>In ascertaining the legal meaning of the words of the constitution,
+these rules of law, (the reasons of which will be more fully explained
+hereafter,) are vital to be borne constantly in mind, viz: 1st, that no
+intention in violation of natural justice and natural right, (like that
+to sanction slavery,) can be ascribed to the constitution, unless that
+intention be expressed in terms that are <i>legally competent</i> to express
+such an intention; and, 2d, that no terms, except those that are
+plenary, express, explicit, distinct, unequivocal, <i>and to which no
+other meaning can be given, are legally competent</i> to authorize or
+sanction any thing contrary to natural right. The rule of law is
+materially different as to the terms necessary to legalize and sanction
+any thing contrary to natural right, and those necessary to legalize
+things that are consistent with natural right. The latter may be
+sanctioned by implication and inference; the former only by inevitable
+implication, or by language that is full, definite, express, explicit,
+unequivocal, and whose <i>unavoidable</i> import is to sanction the <i>specific
+wrong</i> intended.</p>
+
+<p>To assert, therefore, that the constitution <i>intended</i> to sanction
+slavery, is, in reality, equivalent to asserting that the <i>necessary</i>
+meaning, the <i>unavoidable</i> import of the <i>words alone</i> 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, <i>human slavery, property in man</i>. If the <i>necessary</i>
+import of its <i>words alone</i> 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 <i>words
+alone</i> of the constitution come up to this point? No one, who knows any
+thing of law, and the meaning of words. Not even the name of the thing,
+alleged to be sanctioned, is given. The constitution itself contains no
+designation, description, or necessary admission of the existence of
+such a thing as slavery, servitude, or the right of property in man. We
+are obliged to go out of the instrument, and grope among the records of
+oppression, lawlessness and crime&mdash;records unmentioned, and of course
+unsanctioned by the constitution&mdash;to <i>find</i> the thing, to which it is
+said that the words of the constitution apply. And when we have found
+this thing, which the constitution dare not name, we find that the
+constitution has sanctioned it, (if at all,) only by enigmatical words,
+by unnecessary implication and inference, by inuendo and double
+entendre, and under a name that entirely fails of describing the thing.
+Every body must admit that the constitution itself contains no language,
+from which <i>alone</i> any court, that were either strangers to the prior
+existence of slavery, or that did not assume its prior existence to be
+legal, could legally decide that the constitution sanctioned it. And
+this is the true test for determining whether the constitution does, or
+does not, sanction slavery, viz: whether a court of law, strangers to
+the prior existence of slavery, or not assuming its prior existence to
+be legal&mdash;looking only at the naked language of the instrument&mdash;could,
+consistently with legal rules, judicially determine that it sanctioned
+slavery. Every lawyer, who at all deserves that name, knows that the
+claim for slavery could stand no such test. The fact is palpable, that
+the constitution contains no such legal sanction; that it is only by
+unnecessary implication and inference, by inuendo and double-entendre,
+by the aid of exterior evidence, the assumption of the prior legality of
+slavery, and the gratuitous imputation of criminal intentions that are
+not avowed in legal terms, that any sanction of slavery, (as a legal
+institution,) can be extorted from it.</p>
+
+<p>But legal rules of interpretation entirely forbid and disallow all such
+implications, inferences, inuendos and double-entendre, all aid of
+exterior evidence, all assumptions of the prior legality of slavery, and
+all gratuitous imputations of criminal unexpressed intentions; and
+consequently compel us to come back to the <i>letter</i> of the instrument,
+and find <i>there</i> a distinct, clear, necessary, peremptory sanction for
+slavery, or to surrender the point.</p>
+
+<p>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.</p>
+
+<p>But before giving the reasons of this rule, let us offer a few remarks
+in regard to <i>legal</i> 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&mdash;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 <i>law</i> fixes, and
+necessarily must fix their meaning; and for the obvious reason, that
+otherwise their meaning could not be fixed at all. The parties to the
+simplest contract may disagree, or pretend to disagree, as to its
+meaning, and of course as to their respective rights under it. The
+different members of a legislative body, who vote for a particular
+statute, may have different intentions in voting for it, and may
+therefore differ, or pretend to differ, as to its meaning. The people
+of a nation may establish a compact of government. The motives of one
+portion may be to establish liberty, equality and justice; and they may
+think, or pretend to think that the words used in the instrument convey
+that idea. The motives of another portion may be to establish the
+slavery or subordination of one part of the people, and the superiority
+or arbitrary power of the other part; and they may think, or pretend to
+think, that the language agreed upon by the whole authorizes such a
+government. In all these cases, unless there were some rules of law,
+applicable alike to all instruments, and competent to settle their
+meaning, their meaning could not be settled; and individuals would of
+necessity lose their rights under them. <i>The law, therefore, fixes their
+meaning</i>; and the rules by which it does so, are founded in the same
+justice, reason, necessity and truth, as are other legal principles, and
+are for that reason as inflexible as any other legal principles
+whatever. They are also simple, intelligible, natural, obvious. Every
+body are presumed to know them, as they are presumed to know any other
+legal principles. No one is allowed to plead ignorance of them, any more
+than of any other principle of law. All persons and people are presumed
+to have framed their contracts, statutes and constitutions with
+reference to them. And if they have not done so&mdash;if they have said black
+when they meant white, and one thing when they meant another, they must
+abide the consequences. The law will presume that they meant what they
+said. No one, in a court of justice, can claim any rights founded on a
+construction different from that which these rules would give to the
+contract, statute, or constitution, under which he claims. The judiciary
+cannot depart from these rules, for two reasons. First, because the
+rules embody in themselves principles of justice, reason and truth; and
+are therefore as necessarily law as any other principles of justice,
+reason and truth; and, secondly, because if they could lawfully depart
+from them in one case, they might in another, at their own caprice.
+Courts could thus at pleasure become despotic; all certainty as to the
+legal meaning of instruments would be destroyed; and the administration
+of justice, according to the true meaning of contracts, statutes and
+constitutions, would be rendered impossible.</p>
+
+<p>What, then, are some of these rules of interpretation?</p>
+
+<p>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 <i>only that</i> meaning,
+which is consistent with right, shall be attributed to them&mdash;unless
+other parts of the instrument overrule that interpretation.</p>
+
+<p>Another rule, (if indeed it be not the same,) is, that no language,
+except that which is peremptory, and no implication, except one that is
+inevitable, shall be held to authorize or sanction any thing contrary to
+natural right.</p>
+
+<p>Another rule is, that no <i>extraneous or historical evidence</i> 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.</p>
+
+<p>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.&mdash;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.&mdash;The consequence has been that all judges,
+(probably without exception,) though they have not dared deny, have yet
+in practice yielded the vital principle of law; and have succumbed to
+the arbitrary mandates of the other departments of the government, so
+far as to carry out their enactments, though inconsistent with natural
+right. But, as if sensible of the degradation and criminality of so
+doing, they have made a stand at the first point at which they could
+make it, without bringing themselves in a direct collision with those on
+whom they were dependent. And that point is, that they will administer,
+as law, no statute, that is contrary to natural right, unless its
+language be so explicit and peremptory, that there is no way of evading
+its authority, but by flatly denying the authority of those who enacted
+it. They (the court) will themselves add nothing to the language of the
+statute, to help out its supposed meaning. They will imply nothing,
+infer nothing, and assume nothing, except what is inevitable; they will
+not go out of the letter of the statute in search of any <i>historical</i>
+evidence as to the meaning of the legislature, to enable them to
+effectuate any <i>unjust</i> intentions not fully expressed by the statute
+itself. Wherever a statute is supposed to have in view the
+accomplishment of any unjust end, they will apply the most stringent
+principles of construction to prevent that object's being effected. They
+will not go a hair's breadth beyond the literal or inevitable import <i>of
+the words</i> 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:</p>
+
+<p>"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 <i>irresistible clearness</i>,
+to induce a court of justice to suppose a design to effect such
+objects."&mdash;(<i>United States</i> vs. <i>Fisher et al., 2 Cranch</i>, 390.)<a name="FNanchor_18_18" id="FNanchor_18_18"></a><a href="#Footnote_18_18" class="fnanchor">[18]</a></p>
+
+<p>Such has become the settled doctrine of courts. And although it does not
+come up to the true standard of law, yet it is good in itself, so far as
+it goes, and ought to be unflinchingly adhered to, not merely for its
+own sake, but also as a scaffolding, from which to erect that higher
+standard of law, to wit, that no language or authority whatever can
+legalize any thing inconsistent with natural justice.<a name="FNanchor_19_19" id="FNanchor_19_19"></a><a href="#Footnote_19_19" class="fnanchor">[19]</a></p>
+
+<p>Another reason for the rules before given, against all constructions,
+implications and inferences&mdash;except inevitable ones&mdash;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. <i>The law therefore excludes them</i>; that is, the ends of
+justice&mdash;the security of men's rights under their honest contracts, and
+under honest legislative enactments&mdash;make it imperative upon courts of
+justice to ascribe an innocent and honest meaning to all language that
+will possibly bear an innocent and honest meaning. If courts of justice
+could depart from this rule for the purpose of upholding what was
+contrary to natural right, and could employ their ingenuity in spying
+out some implied or inferred authority, for sanctioning what was in
+itself dishonest or unjust, when such was not the <i>necessary</i> 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.</p>
+
+<p>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.</p>
+
+<p>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 <i>extraneous or historical</i>
+evidence to prove that the intentions of the legislature were to
+sanction or authorize a wrong.</p>
+
+<p>The same rules of construction, that apply to statutes, apply also to
+all those private contracts between man and man, <i>which courts actually
+enforce</i>. 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, <i>if offered
+by a defendant for the purpose of invalidating them</i>. 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&mdash;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.</p>
+
+<p>I think no one&mdash;no lawyer, certainly&mdash;will now deny that it is a legal
+rule of interpretation&mdash;that must be applied to all statutes, and also
+to all private contracts <i>that are to be enforced</i>&mdash;that an innocent
+meaning, <i>and nothing beyond an innocent meaning</i>, 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
+<i>irresistible clearness</i>, to induce a court of justice to suppose a
+design to effect such objects."</p>
+
+<p>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.</p>
+
+<p>Besides, is it not as important to the safety and rights of all
+interested, that a constitution or compact of government, established by
+a whole people, should be so construed as to promote the ends of
+justice, as it is that a private contract or a legislative enactment
+should be thus construed? Is it not as necessary that some check should
+be imposed upon the judiciary to prevent them from perverting, at
+pleasure, the whole purpose and character of the government, as it is
+that they should be restrained from perverting the meaning of a private
+contract, or a legislative enactment? Obviously written compacts of
+government could not be upheld for a day, if it were understood by the
+mass of the people that the judiciary were at liberty to interpret them
+according to their own pleasure, instead of their being restrained by
+such rules as have now been laid down.</p>
+
+<p>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.</p>
+
+<p>The second amendment to the constitution declares that "the right of the
+people to keep and bear arms shall not be infringed."</p>
+
+<p>This right "to keep and bear arms," implies the right to use them&mdash;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&mdash;as, for example, in defence of life, liberty, chastity,
+&amp;c. Here is an innocent and just meaning, of which the words are
+susceptible; and such is therefore the <i>extent</i> of their legal meaning.
+If courts could go beyond the innocent and necessary meaning of the
+words, and imply or infer from them an authority for anything contrary
+to natural right, they could imply a constitutional authority in the
+people to use arms, not merely for the just and innocent purposes of
+defence, but also for the criminal purposes of aggression&mdash;for purposes
+of murder, robbery, or any other acts of wrong to which arms are capable
+of being applied. The mere <i>verbal</i> implication would as much authorize
+the people to use arms for unjust, as for just, purposes. But the
+<i>legal</i> implication gives only an authority for their innocent use. And
+why? Simply because justice is the end of all law&mdash;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.</p>
+
+<p>Take another case. The constitution declares that "Congress shall have
+power to <i>regulate commerce</i> with foreign nations, and among the several
+states, and with the Indian tribes."</p>
+
+<p>This power has been held by the supreme court to be an exclusive one in
+the general government&mdash;and one that cannot be controlled by the states.
+Yet it gives congress no constitutional authority to legalize any
+commerce inconsistent with natural justice between man and man; although
+the <i>mere</i> 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&mdash;as for the
+purposes of murder.</p>
+
+<p>At natural law, and on principles of natural right, a person, who should
+<i>sell</i> to another a weapon or a poison, knowing that it would, or
+intending that it should be used for the purpose of murder, would be
+legally an accessary to the murder that should be committed with it. And
+if the grant to congress of a "power to regulate commerce," can be
+stretched beyond the <i>innocent</i> meaning of the words&mdash;beyond the power
+of regulating and authorizing a commerce that is consistent with natural
+justice&mdash;and be made to cover every thing, intrinsically criminal, that
+can be perpetrated under the name of commerce&mdash;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.</p>
+
+<p>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 <i>only</i> an innocent
+meaning to language whose mere verbal import might be susceptible of
+both an innocent <i>and</i> criminal meaning? If this rule of interpretation
+could be departed from, there is hardly a power granted to congress,
+that might not <i>lawfully</i> be perverted into an authority for legalizing
+crimes of the highest grade.</p>
+
+<p>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.</p>
+
+<p>The one most frequently quoted is the third clause of Art. 4, Sec. 2, in
+these words:</p>
+
+<div class="blockquot"><p>"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."</p></div>
+
+<p>There are several reasons why this clause renders no sanction to
+slavery.</p>
+
+<p>1. It must be construed, if possible, as sanctioning nothing contrary to
+natural right.</p>
+
+<p>If there be any "service or labor" whatever, to which any "persons"
+whatever may be "held," <i>consistently with natural right</i>, and which any
+person may, consistently with natural right, "<i>claim</i>" as his "<i>due</i>" of
+another, such "service or labor," and <i>only</i> such, is recognized and
+sanctioned by this provision.</p>
+
+<p>It needs no argument to determine whether the "service or labor," that
+is exacted of a slave, is such as can be "<i>claimed</i>," <i>consistently with
+natural right</i>, as being "<i>due</i>" 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.</p>
+
+<p>The proper definition of the word "service," in this case, obviously is,
+the labor of a <i>servant</i>. 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&mdash;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.<a name="FNanchor_20_20" id="FNanchor_20_20"></a><a href="#Footnote_20_20" class="fnanchor">[20]</a></p>
+
+<p>2. "<i>Held to service or labor</i>," is no legal description of slavery.
+Slavery is property in man. It is not necessarily attended with either
+"service or labor." A very considerable portion of the slaves are either
+too young, too old, too sick, or too refractory to render "service or
+labor." As a matter of fact, slaves, who are able to labor, may, in
+general, be compelled by their masters to do so. Yet labor is not an
+essential or necessary condition of slavery. The essence of slavery
+consists in a person's being owned as property&mdash;without any reference to
+the circumstances of his being compelled to labor, or of his being
+permitted to live in idleness, or of his being too young, or too old, or
+too sick to labor.</p>
+
+<p>If "service or labor" were either a test, or a necessary attendant of
+slavery, that test would of itself abolish slavery; because all slaves,
+before they can render "service or labor," must have passed through the
+period of infancy, when they could render neither service nor labor, and
+when, therefore, according to this test, they were free. And if they
+were free in infancy, they could not be subsequently enslaved.</p>
+
+<p>3. "Held to service or labor in one state, <i>under the laws thereof</i>."</p>
+
+<p>The "<i>laws</i>" take no note of the fact whether a slave "labors," or not.
+They recognize no obligation, on his part, to labor. They will enforce
+no "<i>claim</i>" of a master, upon his slave, for "service or labor." If the
+slave refuse to labor, the law will not interfere to compel him. The law
+simply recognizes the master's <i>right of property</i> in the slave&mdash;just as
+it recognizes his right of property in a horse. Having done that, it
+leaves the master to compel the slave, if he please, and if he can&mdash;as
+he would compel a horse&mdash;to labor. If the master do not please, or be
+not able, to compel the slave to labor, the law takes no more cognizance
+of the case than it does of the conduct of a refractory horse. In short,
+it recognizes no obligation, on the part of the slave, to labor, if he
+can avoid doing so. It recognizes no "<i>claim</i>," on the part of the
+master, upon his slave, for "services or labor," as "<i>due</i>" from the
+latter to the former.</p>
+
+<p>4. Neither "service" nor "labor" is necessarily slavery; and not being
+necessarily slavery, the words cannot, in this case, be strained beyond
+their necessary meaning, to make them sanction a wrong. The law will
+not allow words to be strained a hair's breadth beyond their <i>necessary</i>
+meaning, to make them authorize a wrong. <i>The stretching, if there be
+any, must always be towards the right.</i> The words "service or labor" do
+not necessarily, nor in their common acceptation, so much as suggest the
+idea of slavery&mdash;that is, they do not suggest the idea of the laborer or
+servant being the property of the person for whom he labors. An indented
+apprentice serves and labors for another. He is "<i>held</i>" to do so, under
+a contract, and for a consideration, that are recognized, by the laws,
+as legitimate, and consistent with natural right. Yet he is not owned as
+property. A condemned criminal is "held to labor"&mdash;yet he is not owned
+as property. The law allows no such straining of the meaning of words
+towards the wrong, as that which would convert the words "service or
+labor" (of men) into <i>property in man</i>&mdash;and thus make a man, who serves
+or labors for another, the property of that other.</p>
+
+<p>5. "No person held to service or labor, in one state, under the <i>laws</i>
+thereof."</p>
+
+<p>The "<i>laws</i>," here mentioned, and impliedly sanctioned, are, of course,
+only <i>constitutional</i> laws&mdash;laws, that are consistent, both with the
+constitution of the state, and the constitution of the United States.
+None others are "<i>laws</i>," correctly speaking, however they may attempt
+to "hold persons to service or labor," or however they may have the
+forms of laws on the statute books.</p>
+
+<p>This word "laws," therefore, being a material word, leaves the whole
+question just where it found it&mdash;for it certainly does not, <i>of
+itself</i>&mdash;nor indeed does any other part of the clause&mdash;say that acts of
+a legislature, declaring one man to be the property of another, is a
+"<i>law</i>" within the meaning of the constitution. As far as the word
+"<i>laws</i>" says any thing on the subject, it says that such acts are <i>not</i>
+laws&mdash;for such acts are clearly inconsistent with natural law&mdash;and it
+yet remains to be shown that they are consistent with any constitution
+whatever, state or national.</p>
+
+<p>The burden of proof, then, still rests upon the advocates of slavery, to
+show that an act of a state legislature, declaring one man to be the
+property of another, is a "law," within the meaning of this clause. To
+assert simply that it is, without proving it to be so, is a mere begging
+of the question&mdash;for that is the very point in dispute.</p>
+
+<p>The question, therefore, of the <i>constitutionality</i> of the slave acts
+must first be determined, before it can be decided that they are "laws"
+within the meaning of the constitution. That is, they must be shown to
+be consistent with the constitution, before they can be said to be
+sanctioned as "laws" by the constitution. Can any proposition be plainer
+than this? And yet the reverse must be assumed, in this case, by the
+advocates of slavery.</p>
+
+<p>The simple fact, that an act purports to "hold persons to service or
+labor," clearly cannot, <i>of itself</i>, make the act constitutional. If it
+could, any act, purporting to hold "persons to service or labor," would
+necessarily be constitutional, without any regard to the "persons" so
+held, or the conditions on which they were held. It would be
+constitutional, <i>solely because it purported to hold persons to service
+or labor</i>. If this were the true doctrine, any of us, without respect of
+persons, might be held to service or labor, at the pleasure of the
+legislature. And then, if "service or labor" mean slavery, it would
+follow that any of us, without discrimination, might be made slaves. And
+thus the result would be, that the acts of a legislature would be
+constitutional, <i>solely because they made slaves of the people</i>.
+Certainly this would be a new test of the constitutionality of laws.</p>
+
+<p>All the arguments in favor of slavery, that have heretofore been drawn
+from this clause of the constitution, have been founded on the
+assumption, that if an act of a legislature did but purport to "hold
+persons to service or labor"&mdash;no matter how, on what conditions, or for
+what cause&mdash;that fact alone was sufficient to make the act
+constitutional. The entire sum of the argument, in favor of slavery, is
+but this, viz. the constitution recognizes the constitutionality of
+"laws" that "hold persons to service or labor,"&mdash;slave acts "hold
+persons to service or labor,"&mdash;therefore slave acts must be
+constitutional. This profound syllogism is the great pillar of slavery
+in this country. It has, (if we are to judge by results,) withstood the
+scrutiny of all the legal acumen of this nation for fifty years and
+more. If it should continue to withstand it for as many years as it has
+already done, it will then be time to propound the following, to wit:
+The state constitutions recognize the right of men to acquire property;
+theft, robbery, and murder are among the modes in which property may be
+acquired; therefore theft, robbery, and murder are recognized by these
+constitutions as lawful.</p>
+
+<p>No doubt the clause contemplates that there may be constitutional
+"laws," under which persons may be "held to service or labor." But it
+does not follow, therefore, that every act, that purports to hold
+"persons to service or labor," is constitutional.</p>
+
+<p>We are obliged, then, to determine whether a statute be constitutional,
+before we can determine whether the "service or labor" required by it,
+is sanctioned by the constitution as being lawfully required. The simple
+fact, that the statute would "hold persons to service or labor," is, <i>of
+itself</i>, no evidence, either for or against its constitutionality.
+Whether it be or be not constitutional, may depend upon a variety of
+contingencies&mdash;such as the kind of service or labor required, and the
+conditions on which it requires it. Any service or labor, that is
+inconsistent with the duties which the constitution requires of the
+people, is of course not sanctioned by this clause of the constitution
+as being lawfully required. Neither, of course, is the requirement of
+service or labor, <i>on any conditions, that are inconsistent with any
+rights that are secured to the people by the constitution</i>, sanctioned
+by the constitution as lawful. Slave laws, then, can obviously be held
+to be sanctioned by this clause of the constitution, only by
+gratuitously assuming, 1st, that the constitution neither confers any
+rights, nor imposes any duties, upon the people of the United States,
+inconsistent with their being made slaves; and, 2d, that it sanctions
+the general principle of holding "persons to service or labor"
+arbitrarily, without contract, without compensation, and without the
+charge of crime. If this be really the kind of constitution that has
+been in force since 1789, it is somewhat wonderful that there are so few
+slaves in the country. On the other hand, if the constitution be not of
+this kind, it is equally wonderful that we have any slaves at all&mdash;for
+the instrument offers no ground for saying that a colored man may be
+made a slave, and a white man not.</p>
+
+<p>Again. Slave acts were not "laws" according to any state constitution
+that was in existence at the time the constitution of the United States
+was adopted. And if they were not "laws" at that time, they have not
+been made so since.</p>
+
+<p>6. The constitution itself, (Art. 1. Sec. 2,) in fixing the basis of
+representation, has plainly <i>denied</i> that those described in Art. 4, as
+"persons held to service or labor," are slaves,&mdash;for it declares that
+"persons bound to service for a term of years" shall be "included" in
+the "number of <i>free</i> persons." There is no <i>legal</i> difference between
+being "bound to service," and being "held to service or labor." The
+addition, in the one instance, of the words, "for a term of years," does
+not alter the case, for it does not appear that, in the other, they are
+"held to service or labor" beyond a fixed term&mdash;and, in the absence of
+evidence from the constitution itself, the presumption must be that they
+are not&mdash;because such a presumption makes it unnecessary to go out of
+the constitution to find the persons intended, and it is also more
+consistent with the prevalent municipal, and with natural law.</p>
+
+<p>And it makes no difference to this result, whether the word "free," in
+the first article, be used in the political sense common at that day, or
+as the correlative of slavery. In either case, the persons described as
+"free," could not be made slaves.</p>
+
+<p>7. The words "service or labor" cannot be made to include slavery,
+unless by reversing the legal principle, that the greater includes the
+less, and holding that the less includes the greater; that the innocent
+includes the criminal; that a sanction of what is right, includes a
+sanction of what is wrong.</p>
+
+<p>Another clause relied on as a recognition of the constitutionality of
+slavery, is the following, (Art. 1. Sec. 2.):</p>
+
+<div class="blockquot"><p>"Representatives and direct taxes shall be apportioned among the
+several states, which may be included within this union, according to
+their respective numbers, which shall be determined by adding to the
+whole number of <i>free</i> persons, including those bound to service for
+a term of years, and excluding Indians not taxed, three-fifths of all
+other persons."</p></div>
+
+<p>The argument claimed from this clause, in support of slavery, rests
+entirely upon the word "free," and the words "all other persons." Or
+rather it rests entirely upon the meaning of the word "free," for the
+application of the words "all other persons" depends upon the meaning
+given to the word "free." The slave argument <i>assumes</i>, <i>gratuitously</i>,
+that the word "free" is used as the correlative of slavery and thence it
+infers that the words, "all other persons," mean slaves.</p>
+
+<p>It is obvious that the word "free" affords no argument for slavery,
+unless a meaning correlative with slavery be <i>arbitrarily</i> given to it,
+for the very purpose of <i>making</i> the constitution sanction or recognize
+slavery. Now it is very clear that no such meaning can be given to the
+word, <i>for such a purpose</i>. The ordinary meaning of a word cannot be
+thus arbitrarily changed, <i>for the sake of sanctioning a wrong</i>. A
+choice of meaning would be perfectly allowable, and even obligatory, if
+made for the purpose of <i>avoiding</i> any such sanction; but it is entirely
+inadmissable for the purpose of giving it. The legal rules of
+interpretation, heretofore laid down, imperatively require this
+preference of the right, over the wrong, in all cases where a word is
+susceptible of different meanings.</p>
+
+<p>The English law had for centuries used the word "free" as describing
+persons possessing citizenship, or some other franchise or peculiar
+privilege&mdash;as distinguished from aliens, and persons not possessed of
+such franchise or privilege. This law, and this use of the word "free,"
+as has already been shown, had been adopted in this country from its
+first settlement. The colonial charters all, (probably without an
+exception,) recognized it. The colonial legislation generally, if not
+universally, recognized it. The state constitutions, in existence at the
+time the constitution of the United States was formed and adopted, used
+the word in this sense, and no other. The Articles of Confederation&mdash;the
+then existing national compact of union&mdash;used the word in this sense,
+and no other. The sense is an appropriate one in itself; the most
+appropriate to, and consistent with the whole character of the
+constitution, of any of which the word is susceptible. In fact, it is
+the only one that is either appropriate to, or consistent with, the
+other parts of the instrument. Why, then, is it not the legal meaning?
+Manifestly it <i>is</i> the legal meaning. No reason whatever can be given
+against it, except that, if such be its meaning, <i>the constitution will
+not sanction slavery</i>! A very good reason&mdash;a perfectly unanswerable
+reason, in fact&mdash;in favor of this meaning; but a very futile one against
+it.</p>
+
+<p>It is evident that the word "free" is not used as the correlative of
+slavery, because "Indians not taxed" are "excluded" from its
+application&mdash;yet they are not therefore slaves.</p>
+
+<p>Again. The word "free" cannot be presumed to be used as the correlative
+of slavery&mdash;because slavery then had no <i>legal</i> existence. The word must
+obviously be presumed to be used as the correlative of something that
+did <i>legally</i> exist, rather than of something that did not legally
+exist. If it were used as the correlative of something that did not
+legally exist, the words "all other persons" would have no legal
+application. Until, then, it be shown that slavery had a legal
+existence, authorized either by the United States constitution, or by
+the then existing state constitutions&mdash;a thing that cannot be shown&mdash;the
+word "free" certainly cannot be claimed to have been used as its
+correlative.</p>
+
+<p>But even if slavery had been authorized by the <i>state</i> constitutions,
+the word "free," in the United States constitution, could not have been
+claimed to have been used as its correlative, unless it had appeared
+that the United States constitution had itself provided or suggested no
+correlative of the word "free;" for it would obviously be absurd and
+inadmissible to go out of an instrument to find the intended correlative
+of one of its own words, when it had itself suggested one. This the
+constitution of the United States has done, in the persons of aliens.
+The power of naturalization is, by the constitution, taken from the
+states, and given exclusively to the United States. The constitution of
+the United States, therefore, necessarily supposes the existence of
+aliens&mdash;and thus furnishes the correlative sought for. It furnishes a
+class both for the word "free," and the words "all other persons" to
+apply to. And yet the slave argument contends that we must overlook
+these distinctions, necessarily growing out of the laws of the United
+States, and go out of the constitution of the United States to <i>find</i>
+persons whom it describes as the "free," and "all other persons." And
+what makes the argument the more absurd is, that by going out of the
+instrument to the <i>then existing state constitutions</i>&mdash;the only
+instruments to which we can go&mdash;we can find there <i>no other</i> persons for
+the words to apply to&mdash;no other classes answering to the description of
+the "free persons" and "all other persons,"&mdash;than the very classes
+suggested by the United States constitution itself, to wit, citizens and
+aliens; (for it has previously been shown that the then existing state
+constitutions recognized no such persons as slaves.)</p>
+
+<p>If we are obliged, (as the slave argument claims we are,) to go out of
+the constitution of the United States to find the class whom it
+describes as "all other persons" than "the free," we shall, for aught I
+see, be equally obliged to go out of it to find those whom it describes
+as the "free"&mdash;for "the free," and "all other persons" than "the free,"
+must be presumed to be found described somewhere in the same instrument.
+If, then, we are obliged to go out of the constitution to find the
+persons described in it as "the free" and "all other persons," we are
+obliged to go out of it to ascertain who are the persons on whom it
+declares that the representation of the government shall be based, and
+on whom, of course, the government is founded. And thus we should have
+the absurdity of a constitution that purports to authorize a government,
+yet leaves us to go in search of the people who are to be represented in
+it. Besides, if we are obliged to go out of the constitution, to find
+the persons on whom the government rests, and those persons are
+arbitrarily prescribed by some other instrument, independent of the
+constitution, this contradiction would follow, viz., that the United
+States government would be a subordinate government&mdash;a mere appendage to
+something else&mdash;a tail to some other kite&mdash;or rather a tail to a large
+number of kites at once&mdash;instead of being, as it declares itself to be,
+the supreme government&mdash;its constitution and laws being the supreme law
+of the land.</p>
+
+<p>Again. It certainly cannot be admitted that we must go out of the United
+States constitution to find the classes whom it describes as "the free,"
+and "all other persons" than "the free," until it be shown that the
+constitution has told us where to go to find them. <i>In all other cases</i>,
+(without an exception, I think,) where the constitution makes any of its
+provisions dependent upon the state constitutions, or state
+legislatures, it has particularly described them as depending upon them.
+But it gives no intimation that it has left it with the state
+constitutions, or the state legislatures, to prescribe whom it means by
+the terms "free persons" and "all other persons," on whom it requires
+its own representation to be based. We have, therefore, no more
+authority from the constitution of the United States, for going to the
+state constitutions, to find the classes described in the former as the
+"free persons" and "all other persons," than we have for going to Turkey
+or Japan. We are compelled, therefore, to find them in the constitution
+of the United States itself, if any answering to the description can
+possibly be found there.</p>
+
+<p>Again. If we were permitted to go to the state constitutions, or to the
+state statute books, to find who were the persons intended by the
+constitution of the United States; and if, as the slave argument
+assumes, it was left to the states respectively to prescribe who should,
+and who should not, be "free" within the meaning of the constitution of
+the United States, it would follow that the terms "free" and "all other
+persons," might be applied in as many different ways, and to as many
+different classes of persons, as there were different states in the
+union. Not only so, but the application might also be varied at pleasure
+in the same state. One inevitable consequence of this state of things
+would be, that there could be neither a permanent, nor a uniform basis
+of representation throughout the country. Another possible, and even
+probable consequence would be, such inextricable confusion, as to the
+persons described by the same terms in the different states, that
+Congress could not apportion the national representation at all, in the
+manner required by the constitution. The questions of law, arising out
+of the different uses of the word "free," by the different states, might
+be made so endless and inexplicable, that the state governments might
+entirely defeat all the power of the general government to make an
+apportionment.</p>
+
+<p>If the slave construction be put upon this clause, still another
+difficulty, in the way of making an apportionment, would follow, viz.,
+that congress could have no <i>legal</i> knowledge of the persons composing
+each of the two different classes, on which its representation must be
+based; for there is no legal record&mdash;known to the laws of the United
+States, or even to the laws of the states&mdash;of those who are slaves, or
+those who are not. The information obtained by the census takers, (who
+have no legal records to go to,) must, in the nature of things, be of
+the most loose and uncertain character, on such points as these. Any
+accurate or <i>legal</i> knowledge on the subject is, therefore, obviously
+impossible. But if the other construction be adopted, this difficulty is
+avoided&mdash;for congress then have the control of the whole matter, and may
+adopt such means as may be necessary for ascertaining accurately the
+persons who belong to each of these different classes. And by their
+naturalization laws they actually do provide for a <i>legal</i> record of all
+who are made "free" by naturalization.</p>
+
+<p>And this consideration of certainty, as to the individuals and numbers
+belonging to each of these two classes, "free" and "all other persons,"
+acquires an increased and irresistible force, when it is considered that
+these different classes of persons constitute also different bases for
+taxation, as well as representation. The requirement of the constitution
+is, that "representatives and <i>direct taxes</i> shall be apportioned," &amp;c.,
+according to the number of "free persons" and "all other persons." In
+reference to so important a subject as taxation, <i>accurate</i> and <i>legal</i>
+knowledge of the persons and numbers belonging to the different classes,
+becomes indispensable. Yet under the slave construction this legal
+knowledge becomes impossible. Under the other construction it is as
+perfectly and entirely within the power of congress, as, in the nature
+of things, such a subject can be&mdash;for naturalization is a legal process;
+and legal records, prescribed by congress, may be, and actually are,
+preserved of all the persons naturalized or made "free" by their laws.</p>
+
+<p>If we adopt that meaning of the word "free," which is consistent with
+freedom&mdash;that meaning which is consistent with natural right&mdash;the
+meaning given to it by the Articles of Confederation, by the then
+existing state constitutions, by the colonial charters, and by the
+English law ever since our ancestors enjoyed the name of freemen, all
+these difficulties, inconsistencies, contradictions and absurdities,
+that must otherwise arise, vanish. The word "free" then describes the
+native and naturalized citizens of the United States, and the words "all
+other persons" describe resident aliens, "Indians not taxed," and
+possibly some others. The representation is then placed upon the best,
+most just, and most rational basis that the words used can be made to
+describe. The representation also becomes equal and uniform throughout
+the country. The principle of distinction between the two bases, becomes
+also a stable, rational and intelligible one&mdash;one too necessarily
+growing out of the exercise of one of the powers granted to
+congress;&mdash;one, too, whose operation could have been foreseen and judged
+of by the people who adopted the constitution&mdash;instead of one
+fluctuating with the ever changing and arbitrary legislation of the
+various states, whose mode and motives of action could not have been
+anticipated. Adopt this definition of the word "free," and the same
+legislature, (that is, the national one,) that is required by the
+constitution to apportion the representation according to certain
+principles, becomes invested&mdash;as it evidently ought to be, and as it
+necessarily must be, to be efficient&mdash;with the power of determining, by
+their own (naturalization) laws, who are the persons composing the
+different bases on which its apportionment is to be made; instead of
+being, as they otherwise would be, obliged to seek for these persons
+through all the statute books of all the different states of the union,
+and through all the evidences of private property, under which one of
+these classes might be held. Adopt this definition of the word "free,"
+and the United States government becomes, so far at least as its popular
+representation&mdash;which is its most important feature&mdash;is concerned, an
+independent government, subsisting by its own vigor, and pervaded
+throughout by one uniform principle. Reject this definition, and the
+popular national representation, loses at once its nationality, and
+becomes a mere dependency on the will of local corporations&mdash;a mere
+shuttlecock to be driven hither and thither by the arbitrary and
+conflicting legislation of an indefinite number of separate states.
+Adopt this meaning of the word "free," and the national government
+becomes capable of knowing its own bases of representation and power,
+and its own subjects of taxation. Reject this definition, and the
+government knows not whom it represents, or on whom to levy taxes for
+its support. Adopt this meaning of the word "free," and some three
+millions of native born, but now crushed human beings, become, with
+their posterity, men and citizens. Adopt this meaning&mdash;this <i>legal</i>
+meaning&mdash;this <i>only</i> meaning that can, in this clause, be <i>legally</i>
+given to the word "free," and our constitution becomes, instead of a
+nefarious compact of conspirators against the rights of man, a
+consistent and impartial contract of government between <i>all</i> "the
+people of the United States," for securing "to themselves and their
+posterity the blessings of liberty" and "justice."</p>
+
+<p>Again. We cannot unnecessarily place upon the constitution a meaning
+directly destructive of the government it was designed to establish. By
+giving to the word "free" the meaning universally given to it by our
+political papers of a similar character up to the time the constitution
+was adopted, we give to the government three millions of citizens, ready
+to fight and be taxed for its support. By giving to the word "free" a
+meaning correlative with slavery, we locate in our midst three millions
+of enemies; thus making a difference of six millions, (one third of our
+whole number,) in the physical strength of the nation. Certainly a
+meaning so suicidal towards the government, cannot be given to any part
+of the constitution, except the language be irresistibly explicit; much
+less can it be done, (as in this case it would be,) wantonly,
+unnecessarily, gratuitously, wickedly, and in violation of all previous
+usage.</p>
+
+<p>Again. If we look into the constitution itself for the meaning of the
+word "free," we find it to result from the distinction there recognized
+between citizens and aliens. If we look into the contemporary state
+constitutions, we still find the word "free" to express the political
+relation of the individual to the state, and not any property relation
+of one individual to another. If we look into the law of nature for the
+meaning of the word "free," we find that by that law all mankind are
+free. Whether, therefore, we look to the constitution itself, to the
+contemporary state constitutions, or to the law of nature, for the
+meaning of this word "free," the only meaning we shall find is one
+consistent with the personal liberty of all. On the other hand, if we
+are resolved to give the word a meaning correlative with slavery, we
+must go to the lawless code of the kidnapper to find such a meaning.
+Does it need any argument to prove to which of these different codes our
+judicial tribunals are bound to go, to find the meaning of the words
+used in a constitution, that is established professedly to secure
+liberty and justice?</p>
+
+<p>Once more. It is altogether a false, absurd, violent, unnatural and
+preposterous proceeding, in construing a political paper, which purports
+to establish men's relations to the state, and especially in construing
+the clause in it which fixes the basis of representation and taxation,
+to give to the words, which describe the persons to be represented and
+taxed, and which appropriately indicate those relations of men to the
+state which make them proper subjects of taxation and representation&mdash;to
+give to such words a meaning, which, instead of describing men's
+relations to the state, would describe merely a personal or property
+relation of one individual to another, which the state has nowhere else
+recognized, and which, if admitted to exist, would absolve the persons
+described from all allegiance to the state, would deny them all right to
+be represented, and discharge them from all liability to be taxed.</p>
+
+<p>But it is unnecessary to follow out this slave argument into all its
+ramifications. It sets out with nothing but assumptions, that are
+gratuitous, absurd, improbable, irrelevant, contrary to all previous
+usage, contrary to natural right, and therefore inadmissible. It
+conducts to nothing but contradictions, absurdities, impossibilities,
+indiscriminate slavery, anarchy, and the destruction of the very
+government which the constitution was designed to establish.</p>
+
+<p>The other clause relied on as a recognition and sanction, both of
+slavery and the slave trade, is the following:</p>
+
+<div class="blockquot"><p>"The migration or importation of such persons as any of the states
+now existing shall think proper to admit, shall not be prohibited by
+the congress prior to the year one thousand eight hundred and eight,
+but a tax or duty may be imposed on such importation, not exceeding
+ten dollars for each person."&mdash;(Art. 1, Sec. 9.)</p></div>
+
+<p>The slave argument, drawn from this clause, is, that the word
+"importation" applies only to property, and that it therefore implies,
+in this clause, that the persons to be imported are necessarily to be
+imported as property&mdash;that is, as slaves.</p>
+
+<p>But the idea that the word "importation" applies only to property, is
+erroneous. It applies correctly both to persons and things. The
+definition of the verb "import" is simply "to bring from a foreign
+country, or jurisdiction, or from another state, into one's own country,
+jurisdiction or state."&mdash;When we speak of "importing" things, it is true
+that we mentally associate with them the idea of property. But that is
+simply because <i>things</i> are property, and not because the word "import"
+has any control, in that particular, over the character of the things
+imported. When we speak of importing "persons," we do not associate with
+them the idea of property, simply because "persons" are not property.</p>
+
+<p>We speak daily of the "importation of foreigners into the country;" but
+no one infers therefrom that they are brought in as slaves, but as
+passengers. A vessel imports, or brings in, five hundred passengers.
+Every vessel, or master of a vessel, that "brings in" passengers,
+"imports" them. But such passengers are not therefore slaves. A man
+imports his wife and children&mdash;but they are not therefore his slaves,
+or capable of being owned or sold as his property. A man imports a gang
+of laborers, to clear lands, cut canals, or construct railroads; but not
+therefore to be held as slaves. An innocent meaning must be given to the
+word, if it will bear one. Such is the legal rule.</p>
+
+<p>Even the popular understanding of the word "import," when applied to
+"persons," does not convey the idea of property. It is only when it is
+applied distinctly to "slaves," that any such idea is conveyed; and then
+it is the word "slaves," and not the word "import," that suggests the
+idea of property. Even slave traders and slave holders attach no such
+meaning to the word "import," when it is connected with the word
+"persons;" but only when it is connected with the word "slaves."</p>
+
+<p>In the case of Ogden <i>vs.</i> Saunders, (12 Wheaton, 332,) Chief Justice
+Marshall said, that in construing the constitution, "the intention of
+the instrument must prevail; that this intention must be collected from
+its words; that its words are to be understood in that sense in which
+they are <i>generally used</i> by those for whom the instrument was
+intended." On this principle of construction, there is not the least
+authority for saying that this provision for "the importation of
+persons," authorized the importation of them as slaves. To give it this
+meaning, requires the same stretching of words <i>towards the wrong</i>, that
+is applied, by the advocates of slavery, to the words "service or
+labor," and the words "free" and "all other persons."</p>
+
+<p>Another reason, which makes it necessary that this construction should
+be placed upon the word "<i>importation</i>," is, that the clause contains no
+other word that describes the immigration of foreigners. Yet that the
+clause related to the immigration of foreigners <i>generally</i>, and that it
+restrained congress, (up to the year 1808,) from prohibiting the
+immigration of foreigners generally, there can be no doubt.</p>
+
+<p>The object, and the only <i>legal</i> object, of the clause was to restrain
+congress from so exercising their "power of regulating commerce with
+foreign nations, and among the several states, and with the Indian
+tribes"&mdash;(which power has been decided by the supreme court of the
+United States, to include a power over navigation and the transportation
+of passengers in boats and vessels<a name="FNanchor_21_21" id="FNanchor_21_21"></a><a href="#Footnote_21_21" class="fnanchor">[21]</a>)&mdash;as to obstruct the introduction
+of new population into such of the states as were desirous of increasing
+their population in that manner. The clause does not imply at all, that
+the population, which the states were thus to "admit," was to be a slave
+population.</p>
+
+<p>The word "importation," (I repeat,) is the only word in the clause, that
+applies to persons that were to <i>come into</i> the country from foreign
+nations. The word "<i>migration</i>" applies only to those who were to <i>go
+out from</i> one of our own states or territories into another.
+"<i>Migration</i>" is the act of <i>going out</i> from a state or country; and
+differs from immigration in this, that immigration is the act of <i>coming
+into</i> a state or country. It is obvious, therefore, that the
+"<i>migration</i>," which congress are here forbidden to prohibit, is simply
+the <i>going out</i> of persons from one of our own states or territories
+into another&mdash;(for that is the only "<i>migration</i>" that could come within
+the jurisdiction of congress)&mdash;and that it has no reference to persons
+<i>coming in</i> from foreign countries to our own.</p>
+
+<p>If, then, "migration," as here used, has reference only to persons
+<i>going out</i> from one state into another, the word "<i>importation</i>" is the
+only one in the clause that is applicable to foreigners coming into our
+country. This word "importation," then, being the only word that can
+apply to persons coming into the country, it must be considered as
+substantially synonymous with immigration, and must apply equally to
+<i>all</i> "persons," that are "imported," or brought into the country as
+passengers. And if it applies equally to all persons, that are brought
+in as passengers, it does not <i>imply</i> that any of those persons are
+slaves; for no one will pretend that this clause ever authorized the
+state governments to treat as slaves <i>all</i> persons that were brought
+into the country as passengers. And if it did not authorize them to
+treat all such passengers as slaves, it did not authorize them to treat
+any of them as such; for it makes no discrimination between the
+different "persons" that should be thus imported.</p>
+
+<p>Again. The argument, that the allowance of the "importation" of
+"persons," implies the allowance of property in such persons, would
+imply a recognition of the validity of the slave laws of other
+countries; for unless slaves were obtained by valid purchase
+abroad&mdash;which purchase implies the existence and validity of foreign
+slave laws&mdash;the importer certainly could not claim to import his slaves
+as property; but he would appear, at the custom-house, as a mere pirate,
+claiming to have his captures legalized. So that, <i>according to the
+slave argument</i>, the simple use of the word "importation," in the
+constitution, as applied to "persons," bound our government, not only to
+the sanction and toleration of slavery in our own country, but to the
+recognition of the validity of the slave laws of other countries.</p>
+
+<p>But farther. The allowance of the "importation" of slaves, as such,
+under this clause of the constitution, would imply that congress must
+take actual, and even the most critical cognizance of the slave laws of
+other countries; and that they should allow neither the mere word of the
+person calling himself the owner, nor any thing short of the fullest and
+clearest legal proof, according to the laws of those countries, to be
+sufficient to enable him to enter his slaves, as property, at the
+custom-house; otherwise any masters of vessels, from England or France,
+as well as from Africa, might, on their arrival here, claim their
+passengers as slaves. Did the constitution, in this clause, by simply
+using the word "importation," instead of immigration, intend to throw
+upon the national government&mdash;at the hazard of making it a party to the
+illegal enslavement of human beings&mdash;the responsibility of
+investigating and deciding upon the legality and credibility of all the
+evidence that might be offered by the piratical masters of slave ships,
+to prove their valid purchase of, and their right of property in their
+human cargoes, according to the slave laws of the countries from which
+they should bring them? Such must have been the intention of the
+constitution, if it intended, (as it must, if it intended any thing of
+this kind,) that the fact of "importation" under the commercial
+regulations of congress, should be thereafter a sufficient authority for
+holding in slavery the persons imported.</p>
+
+<p>But perhaps it will be said that it was not the intention of the
+constitution, that congress should take any responsibility at all in the
+matter; that it was merely intended that whoever came into the country
+with a cargo of men, whom he called his slaves, should be permitted to
+bring them in on his own responsibility, and sell them as slaves for
+life to our people; and that congress were prohibited only from
+interfering, or asking any questions as to how he obtained them, or how
+they became his slaves. Suppose such were the intention of the
+constitution&mdash;what follows? Why, that the national government, the only
+government that was to be known to foreign nations, the only government
+that was to be permitted to regulate our commerce, or make treaties with
+foreign nations, the government on whom alone was to rest the
+responsibility of war with foreign nations, was bound to permit, (until
+1808,) all masters, both of our own ships and of the ships of other
+nations, to turn pirates, and make slaves of their passengers, whether
+Englishmen, Frenchmen, or any other civilized people, (for the
+constitution makes no distinction of "persons" on this point,) bring
+them into this country, sell them as slaves for life to our people, and
+thus make our country a rendezvous and harbor for pirates, involve us
+inevitably in war with every civilized nation in the world, cause
+ourselves to be outlawed as a people, and bring certain and swift
+destruction upon the whole nation; and yet this government, that had the
+sole responsibility of all our foreign relations, was constitutionally
+prohibited from interfering in the matter, or from doing any thing but
+lifting its hands in prayer to God and these pirates, that the former
+would so far depart, and the latter so far desist from their usual
+courses, as might be necessary to save us, until 1808, (after which time
+we would take the matter into our own hands, and, by prohibiting the
+causes of the danger, save ourselves,) from the just vengeance, which
+the rest of mankind were taking upon us.</p>
+
+<p>This is the kind of constitution, under which, (according to the slave
+argument,) we lived until 1808.</p>
+
+<p>But is such the real character of the constitution? By it, did we thus
+really avow to the world that we were a nation of pirates? that our
+territory should be a harbor for pirates? that our people were
+constitutionally licensed to enslave the people of all other nations,
+without discrimination, (for the instrument makes no discrimination,)
+whom they could either kidnap in their own countries, or capture on the
+high seas? and that we had even prohibited our only government that
+could make treaties with foreign nations, from making any treaty, until
+1808, with any particular nation, to exempt the people of that nation
+from their liability to be enslaved by the people of our own? The slave
+argument says that we did avow all this. If we really did, perhaps all
+that can be said of it now is, that it is very fortunate for us that
+other nations did not take us at our word. For if they had taken us at
+our word, we should, before 1808, have been among the nations that were.</p>
+
+<p>Suppose that, on the organization of our government, we had been charged
+by foreign nations, with having established a piratical government&mdash;how
+could we have rebutted the charge otherwise than by denying that the
+words "importation of persons" legally implied that the persons imported
+were slaves? Suppose that European ambassadors had represented to
+president Washington that their governments considered our constitution
+as licensing our people to kidnap the people of other nations, without
+discrimination, and bring them to the United States as slaves. Would he
+not have denied that the legal meaning of the clause did any thing more
+than secure the free introduction of foreigners as passengers and
+freemen? Or would he&mdash;<i>he</i>, the world-renowned champion of human
+rights&mdash;have indeed stooped to the acknowledgment that in truth he was
+the head of a nation of pirates, whose constitution did guarantee the
+freedom of kidnapping men abroad, and importing them as slaves? And
+would he, in the event of this acknowledgment, have sought to avert the
+destruction, which such an avowal would be likely to bring upon the
+nation, by pleading that, although such was the legal meaning of the
+words of our constitution, we yet had an understanding, (an honorable
+understanding!) among ourselves, that we would not take advantage of the
+license to kidnap or make slaves of any of the citizens of those
+civilized and powerful nations of Europe, that kept ships of war, and
+knew the use of gunpowder and cannon; but only the people of poor, weak,
+barbarous and ignorant nations, who were incapable of resistance and
+retaliation?</p>
+
+<p>Again. Even the allowance of the simple "<i>importation</i>" of slaves&mdash;(and
+that is the most that is <i>literally</i> provided for&mdash;and the word
+"importation" must be construed to the letter,) would not, of itself,
+give any authority for the continuance of the slavery <i>after</i>
+"importation." If a man bring either property or persons into this
+country, he brings them in to abide the constitutional laws of the
+country; and not to be held according to the customs of the country from
+which they were brought. Were it not so, the Turk might import a harem
+of Georgian slaves, and, at his option, either hold them as his own
+property, or sell them as slaves to our own people, in defiance of any
+principles of freedom that should prevail amongst us. To allow this kind
+of "importation," would be to allow not merely the importation of
+foreign "persons," but also of foreign laws to take precedence of our
+own.</p>
+
+<p>Finally. The conclusion, that congress were restrained, by this clause,
+only from prohibiting the immigration of a foreign population, and not
+from prohibiting the importation of slaves, to be held as slaves after
+their importation&mdash;is the more inevitable, from the fact that the power
+given to congress of naturalizing foreigners, is entirely
+unlimited&mdash;except that their laws must be uniform throughout the United
+States. They have perfect power to pass laws that shall naturalize every
+foreigner without distinction, the moment he sets foot on our soil. And
+they had this power as perfectly prior to 1808, as since. And it is a
+power entirely inconsistent with the idea that they were bound to admit,
+and forever after to acknowledge as slaves, all or any who might be
+attempted to be brought into the country as such.</p>
+
+<p>One other provision of the constitution, viz: the one that "the United
+States shall protect each of the States against domestic violence"&mdash;has
+sometimes been claimed as a special pledge of impunity and succor to
+that kind of "violence," which consists in one portion of the people's
+standing constantly upon the necks of another portion, and robbing them
+of all civil privileges, and trampling upon all their personal rights.
+The argument seems to take it for granted, that the only proper way of
+protecting a "<i>republican</i>" state (for the states are all to be
+"republican,") against "domestic violence," is to plant men firmly upon
+one another's necks, (about in the proportion of two upon one,) arm the
+two with whip and spur, and then keep an armed force standing by to cut
+down those that are ridden, if they dare attempt to throw the riders.
+When the ridden portion shall, by this process, have been so far subdued
+as to bear the burdens, lashings and spurrings of the other portion
+without resistance, then the state will have been secured against
+"domestic violence," and the "republican form of government" will be
+completely successful.</p>
+
+<p>This version of this provision of the constitution presents a fair
+illustration of those new ideas of law and language, that have been
+invented for the special purpose of bringing slavery within the pale of
+the constitution.</p>
+
+<p>We have thus examined all those clauses of the constitution, that have
+been relied on to prove that the instrument recognizes and sanctions
+slavery. No one would have ever dreamed that either of these clauses
+alone, or that all of them together, contained so much as an allusion to
+slavery, had it not been for circumstances extraneous to the
+constitution itself. And what are these extraneous circumstances? They
+are the existence and toleration, in one portion of the country, of a
+crime that embodies within itself nearly all the other crimes, which it
+is the principal object of all our governments to punish and suppress; a
+crime which we have therefore no more right to presume that the
+constitution of the United States intended to sanction, than we have to
+presume that it intended to sanction all the separate crimes which
+slavery embodies, and our governments prohibit. Yet we have
+<i>gratuitously</i> presumed that the constitution intended to sanction all
+these separate crimes, as they are comprehended in the general crime of
+slavery. And acting upon this gratuitous presumption, we have sought, in
+the words of the constitution, for some hidden meaning, which we could
+imagine to have been understood, by the initiated, as referring to
+slavery; or rather we have presumed its words to have been used as a
+kind of cypher, which, among confederates in crime, (as we presume its
+authors to have been,) was meant to stand for slavery. In this way, and
+in this way only, we pretend to have discovered, in the clauses that
+have been examined, a hidden, yet legal sanction of slavery. In the name
+of all that is legal, who of us are safe, if our government, instead of
+searching our constitution to find authorities for maintaining justice,
+are to continue to busy themselves in such prying and microscopic
+investigations, after such disguised and enigmatical authorities for
+such wrongs as that of slavery, and their pretended discoveries are to
+be adopted as law, which they are sworn to carry into execution?</p>
+
+<p>The clauses mentioned, taken either separately or collectively, neither
+assert, imply, sanction, recognize nor acknowledge any such thing as
+slavery. They do not even speak of it. They make no allusion to it
+whatever. They do not suggest, and, of themselves, never would have
+suggested the idea of slavery. There is, in the whole instrument, no
+such word as slave or slavery; nor any language that can legally be made
+to assert or imply the existence of slavery. There is in it nothing
+about color; nothing from which a liability to slavery can be predicated
+of one person more than another; or from which such a liability can be
+predicated of any person whatever. The clauses, that have been claimed
+for slavery, are all, in themselves, honest in their language, honest in
+their legal meaning; and they can be made otherwise only by such
+gratuitous assumptions against natural right, and such straining of
+words in favor of the wrong, as, if applied to other clauses, would
+utterly destroy every principle of liberty and justice, and allow the
+whole instrument to be perverted to every conceivable purpose of tyranny
+and crime.</p>
+
+<p>Let us now look at the <i>positive</i> provisions of the constitution, <i>in
+favor of liberty</i>, and see whether they are not only inconsistent with
+any legal sanction of slavery, but also whether they must not, of
+themselves, have necessarily extinguished slavery, if it had had any
+constitutional existence to be extinguished.</p>
+
+<p>And, first, the constitution made all "the people of the United States"
+<i>citizens</i> under the government to be established by it; for all of
+those, by whose authority the constitution declares itself to be
+established, must of course be presumed to have been made citizens under
+it. And whether they were entitled or not to the right of suffrage, they
+were at least entitled to all the personal liberty and protection, which
+the constitution professes to secure to "the people" generally.</p>
+
+<p>Who, then, established the constitution?</p>
+
+<p>The preamble to the constitution has told us in the plainest possible
+terms, to wit, that "We, <i>the people</i> of the United States" "do ordain
+and establish this constitution," &amp;c.</p>
+
+<p>By "the people of the United States," here mentioned, the constitution
+intends <i>all</i> "the people" then permanently inhabiting the United
+States. If it does not intend all, who were intended by "the people of
+the United States?"&mdash;The constitution itself gives no answer to such a
+question.&mdash;It does not declare that "we, the <i>white</i> people," or "we,
+the <i>free</i> people," or "we, a <i>part</i> of the people"&mdash;but that "we, <i>the</i>
+people"&mdash;that is, we the <i>whole</i> people&mdash;of the United States, "do
+ordain and establish this constitution."</p>
+
+<p>If the <i>whole</i> people of the United States were not recognized as
+citizens by the constitution, then the constitution gives no information
+as to what portion of the people were to be citizens under it. And the
+consequence would then follow that the constitution established a
+government that could not know its own citizens.</p>
+
+<p>We cannot go out of the constitution for evidence to prove who were to
+be citizens under it. We cannot go out of a written instrument for
+evidence to prove the parties to it, nor to explain its meaning, except
+the language of the instrument on that point be ambiguous. In this case
+there is no ambiguity. The language of the instrument is perfectly
+explicit and intelligible.</p>
+
+<p>Because the whole people of the country were not allowed to vote on the
+ratification of the constitution, it does not follow that they were not
+made citizens under it; for women and children did not vote on its
+adoption; yet they are made citizens by it, and are entitled as citizens
+to its protection; and the state governments cannot enslave them. The
+national constitution does not limit the right of citizenship and
+protection by the right of suffrage, any more than do the state
+constitutions. Under the most, probably under all the state
+constitutions, there are persons who are denied the right of
+suffrage&mdash;but they are not therefore liable to be enslaved.</p>
+
+<p>Those who did take part in the actual ratification of the constitution,
+acted in behalf of, and, <i>in theory</i>, represented the authority of the
+whole people. Such is the theory in this country wherever suffrage is
+confined to a few; and such is the virtual declaration of the
+constitution itself. The declaration that "we <i>the people</i> of the United
+States do ordain and establish this constitution," is equivalent to a
+declaration that those who actually participated in its adoption, acted
+in behalf of all others, as well as for themselves.</p>
+
+<p>Any private intentions or understandings, on the part of one portion of
+the people, as to who should be citizens, cannot be admitted to prove
+that such portion only were intended by the constitution, to be
+citizens; for the intentions of the other portion would be equally
+admissible to exclude the exclusives. The mass of the people can claim
+citizenship under the constitution, on no other ground than as being a
+part of "the people of the United States;" and such claim necessarily
+admits that all other "people of the United States" are equally
+citizens.</p>
+
+<p>That the designation, "We the people of the United States," included the
+whole people that properly belonged to the United States, is also proved
+by the fact that no exception is made in any other part of the
+instrument.</p>
+
+<p>If the constitution had intended that any portion of "the people of the
+United States" should be excepted from its benefits, disfranchised,
+outlawed, enslaved, it would of course have designated these exceptions
+with such particularity as to make it sure that none but the true
+persons intended would be liable to be subjected to such wrongs. Yet,
+instead of such particular designation of the exceptions, we find no
+designation whatever of the kind. But on the contrary, we <i>do</i> find, in
+the preamble itself, a sweeping declaration to the effect that there are
+no such exceptions; that the whole people of the United States are
+citizens, and entitled to liberty, protection, and the dispensation of
+justice under the constitution.</p>
+
+<p>If it be admitted that the constitution designated its own citizens,
+then there is no escape from the conclusion that it designated the
+whole people of the United States as such. On the other hand, if it be
+denied that the constitution designated its own citizens, one of these
+two conclusions must follow, viz., 1st, that it has no citizens; or, 2d,
+that it has left an unrestrained power in the <i>state</i> governments to
+determine who may, and who may not, be citizens of the <i>United States</i>
+government. If the first of these conclusions be adopted, viz., that the
+constitution has no citizens, then it follows that there is really no
+United States government, except on paper&mdash;for there would be as much
+reason in talking of an army without men, as of a government without
+citizens. If the second conclusion be adopted, viz., that the state
+governments have the right of determining who may, and who may not be
+citizens of the United States government, then it follows that the state
+governments may at pleasure destroy the government of the United States,
+by enacting that none of their respective inhabitants shall be citizens
+of the United States.</p>
+
+<p>This latter is really the doctrine of some of the slave states&mdash;the
+"state-rights" doctrine, so called. That doctrine holds that the general
+government is merely a confederacy or league of the several states, <i>as
+states</i>; not a government established by the people, <i>as people</i>. This
+"state-rights" doctrine has been declared unconstitutional by reiterated
+opinions of the supreme court of the United States;<a name="FNanchor_22_22" id="FNanchor_22_22"></a><a href="#Footnote_22_22" class="fnanchor">[22]</a> and, what is of
+more consequence, it is denied also by the preamble to the constitution
+itself, which declares that it is "the people," (and not the state
+governments,) that ordain and establish it. It is true also that the
+constitution was ratified by conventions of the people, and not by the
+legislatures of the states. Yet because the constitution was ratified by
+conventions of the states <i>separately</i>, (as it naturally would be for
+convenience, and as it necessarily must have been for the reason that
+none but the people of the respective states could recall any portion of
+the authority they had, delegated to their state governments, so as to
+grant it to the United States government,)&mdash;yet because it was thus
+ratified, I say, some of the slave states have claimed that the general
+government was a league of states, instead of a government formed by
+"the people." The true reason why the slave states have held this
+theory, probably is, because it would give, or appear to give, to the
+states the right of determining who should, and who should not, be
+citizens of the United States. They probably saw that if it were
+admitted that the constitution of the United States had designated its
+own citizens, it had undeniably designated the whole people of the then
+United States as such; and that, as a state could not enslave a citizen
+of the United States, (on account of the supremacy of the constitution
+of the United States,) it would follow that there could be no
+constitutional slavery in the United States.</p>
+
+<p>Again. If the constitution was established by authority of all "the
+people of the United States," they were all legally parties to it, and
+citizens under it. And if they were parties to it, and citizens under
+it, it follows that neither they, <i>nor their posterity</i>, nor any nor
+either of them, can ever be legally enslaved within the territory of the
+United States; for the constitution declares its object to be, among
+other things, "to secure the blessings of liberty to <i>ourselves, and our
+posterity</i>." This purpose of the national constitution is a law
+paramount to all state constitutions; for it is declared that "this
+constitution, and the laws of the United States that shall be made in
+pursuance thereof, and all treaties made, or which shall be made under
+the authority of the United States, shall be the supreme law of the
+land; and the judges <i>in every state</i> shall be bound thereby, any thing
+in the constitution or laws of any state to the contrary
+notwithstanding."</p>
+
+<p>No one, I suppose, doubts that if the state governments were to abolish
+slavery, the slaves would then, without further legislation, become
+citizens of the United States. Yet, in reality, if they would become
+citizens then, they are equally citizens now&mdash;else it would follow that
+the state governments had an arbitrary power of making citizens of the
+United States; or&mdash;what is equally absurd&mdash;it would follow that
+disabilities, arbitrarily imposed by the state governments, upon native
+inhabitants of the country, were, of themselves, sufficient to deprive
+such inhabitants of their citizenship, which would otherwise have been
+conferred upon them by the constitution of the United States. To suppose
+that the state governments are thus able, arbitrarily, to keep in
+abeyance, or arbitrarily to withhold from any of the inhabitants of the
+country, any of the benefits or rights which the national constitution
+intended to confer upon them, would be to suppose that the state
+constitutions were paramount to the national one. The conclusion,
+therefore, is inevitable, that the state governments have no power to
+withhold the rights of citizenship from any who are otherwise competent
+to become citizens. And as all the native born inhabitants of the
+country are at least competent to become citizens of the United States,
+(if they are not already such,) the state governments have no power, by
+slave laws or any other, to withhold the rights of citizenship from
+them.</p>
+
+<p>But however clear it may be, that the constitution, in reality, made
+citizens of all "the people of the United States," yet it is not
+necessary to maintain that point, in order to prove that the
+constitution gave no guaranty or sanction to slavery&mdash;for if it had not
+already given citizenship to all, it nevertheless gave to the government
+of the United States unlimited power of offering citizenship to all. The
+power given to the government of passing naturalization laws, is
+entirely unrestricted, except that the laws must be uniform throughout
+the country. And the government have undoubted power to offer
+naturalization and citizenship to every person in the country, whether
+foreigner or native, who is not already a citizen. To suppose that we
+have in the country three millions of native born inhabitants, not
+citizens, and whom the national government has no power to make
+citizens, when its power of naturalization is entirely unrestricted, is
+a palpable contradiction.</p>
+
+<p>But further. The constitution of the United States must be made
+consistent with itself throughout; and if any of its parts are
+irreconcilable with each other, those parts that are inconsistent with
+liberty, justice and right, must be thrown out for inconsistency.
+Besides the provisions already mentioned, there are numerous others, in
+the constitution of the United States, that are entirely and
+irreconcilably inconsistent with the idea that there either was, or
+could be, any constitutional slavery in this country.</p>
+
+<p>Among these provisions are the following:</p>
+
+<p><i>First.</i> Congress have power to lay a capitation or poll tax upon the
+people of the country. Upon whom shall this tax be levied? and who must
+be held responsible for its payment? Suppose a poll tax were laid upon a
+man, whom the state laws should pretend to call a slave. Are the United
+States under the necessity of investigating, or taking any notice of the
+fact of slavery, either for the purpose of excusing the man himself from
+the tax, or of throwing it upon the person claiming to be his owner?
+Must the government of the United States find a man's pretended owner,
+or only the man himself, before they can tax him? Clearly the United
+States are not bound to tax any one but the individual himself, or to
+hold any other person responsible for the tax. Any other principle would
+enable the state governments to defeat any tax of this kind levied by
+the United States. Yet a man's liability to be held personally
+responsible for the payment of a tax, levied upon himself by the
+government of the United States, is inconsistent with the idea that the
+government is bound to recognize him as not having the ownership of his
+own person.</p>
+
+<div class="blockquot"><p><i>Second.</i> "The congress shall have power to regulate commerce with
+foreign nations, and among the several states, and with the Indian
+tribes."</p></div>
+
+<p>This power is held, by the supreme court of the United States, to be an
+exclusive one in the general government; and it obviously must be so, to
+be effectual&mdash;for if the states could also interfere to regulate it, the
+states could at pleasure defeat the regulations of congress.</p>
+
+<p>Congress, then, having the exclusive power of regulating this commerce,
+they only (if any body) can say who may, and who may not, carry it on;
+and probably even they have no power to discriminate arbitrarily between
+individuals.&mdash;But, in no event, have the <i>state</i> governments any right
+to say who may, or who may not, carry on "commerce with foreign
+nations," or "among the several states," or "with the Indian tribes."
+Every individual&mdash;naturally competent to make contracts&mdash;whom the state
+laws declare to be a slave, probably has, and certainly may have, under
+the regulations of congress, as perfect a right to carry on "commerce
+with foreign nations, and among the several states, and with the Indian
+tribes," as any other citizen of the United States can have&mdash;"any thing
+in the constitution or laws of any state to the contrary
+notwithstanding." Yet this right of carrying on commerce is a right
+entirely inconsistent with the idea of a man's being a slave.</p>
+
+<p>Again. It is a principle of law that the right of traffic is a natural
+right, and that all commerce (that is intrinsically innocent) is
+therefore lawful, except what is prohibited by positive legislation.
+Traffic with the slaves, either by people of foreign nations, or by
+people belonging to other states than the slaves, has never (so far as I
+know) been prohibited by congress, which is the only government, (if
+any,) that has power to prohibit it. Traffic with the slaves is
+therefore as lawful at this moment, under the constitution of the
+United States, as is traffic with their masters; and this fact is
+entirely inconsistent with the idea that their bondage is
+constitutional.</p>
+
+<div class="blockquot"><p><i>Third.</i> "The congress shall have power to establish post offices and
+post roads."</p></div>
+
+<p>Who, but congress, have any right to say who may send, or receive
+letters by the United States posts? Certainly no one. They have
+undoubted authority to permit any one to send and receive letters by
+their posts&mdash;"any thing in the constitutions or laws of the states to
+the contrary notwithstanding." Yet the right to send and receive letters
+by post, is a right inconsistent with the idea of a man's being a slave.</p>
+
+<div class="blockquot"><p><i>Fourth.</i> "The congress shall have power to promote the progress of
+science and useful arts, by securing for limited times to authors and
+inventors the exclusive right to their respective writings and
+discoveries."</p></div>
+
+<p>Suppose a man, whom a state may pretend to call a slave, should make an
+invention or discovery&mdash;congress have undoubted power to secure to such
+individual himself, by patent, the "<i>exclusive</i>"&mdash;(mark the word)&mdash;the
+"exclusive right" to his invention or discovery. But does not this
+"<i>exclusive right</i>" in the inventor himself, exclude the right of any
+man, who, under a state law, may claim to be the owner of the inventor?
+Certainly it does. Yet the slave code says that whatever is a slave's is
+his owner's. This power, then, on the part of congress, to secure to an
+individual the exclusive right to his inventions and discoveries, is a
+power inconsistent with the idea that that individual himself, and all
+he may possess, are the property of another.</p>
+
+<div class="blockquot"><p><i>Fifth.</i> "The congress shall have power to declare war, grant letters
+of marque and reprisal, and make rules concerning captures on land
+and water;" also "to raise and support armies;" and "to provide and
+maintain a navy."</p></div>
+
+<p>Have not congress authority, under these powers, to enlist soldiers and
+sailors, <i>by contract with themselves</i>, and to pay them their wages,
+grant them pensions, and secure their wages and pensions to their own
+use, without asking the permission either of the state governments, or
+of any individuals whom the state governments may see fit to recognize
+as the owners of such soldiers and sailors? Certainly they have, in
+defiance of all state laws and constitutions whatsoever; and they have
+already asserted that principle by enacting that pensions, paid by the
+United States to their soldiers, shall not be liable to be taken for
+debt, under the laws of the states. Have they not authority also to
+grant letters of marque and reprisal, and to secure the prizes, to a
+ship's crew of blacks, as well as of whites? To those whom the State
+governments call slaves, as well as to those whom the state governments
+call free?&mdash;Have not congress authority to make contracts, for the
+defence of the nation, with any and all the inhabitants of the nation,
+who may be willing to perform the service? Or are they obliged first to
+ask and obtain the consent of those private individuals who may pretend
+to own the inhabitants of this nation? Undoubtedly congress have the
+power to contract with whom they please, and to secure wages and
+pensions to such individuals, in contempt of all state authority. Yet
+this power is inconsistent with the idea that the constitution
+recognizes or sanctions the legality of slavery.</p>
+
+<div class="blockquot"><p><i>Sixth.</i> "The congress shall have power to provide for the
+organizing, <i>arming</i> and disciplining the <i>militia</i>, and for
+governing such part of them as may be employed in the service of the
+United States, reserving to the states respectively the appointment
+of the officers, and the authority of training the militia, according
+to the discipline prescribed by congress." Also "to provide for
+calling forth the militia to execute the laws of the Union, suppress
+insurrections, and repel invasions."</p></div>
+
+<p>Have not congress, under these powers, as undoubted authority to enroll
+in the militia, and "<i>arm</i>" those whom the states call slaves, and
+authorize them always to keep their arms by them, even when not on duty,
+(that they may at all times be <i>ready</i> to be "called forth" "to execute
+the laws of the Union, suppress insurrections, and repel invasions,")
+as they have thus to enroll and arm those whom the states call free? Can
+the state governments determine who may, and who may not compose the
+militia of the "United States?"</p>
+
+<p>Look, too, at this power, in connection with the second amendment to the
+constitution; which is in these words:</p>
+
+<div class="blockquot"><p>"A well regulated militia being necessary to the security of a free
+state, the right of <i>the people</i> to keep and bear arms shall not be
+infringed."</p></div>
+
+<p>These provisions obviously recognize the natural right of all men "to
+keep and bear arms" for their personal defence; and prohibit both
+congress and the state governments from infringing the right of "the
+people"&mdash;that is, of <i>any</i> of the people&mdash;to do so; and more especially
+of any whom congress have power to include in their militia. This right
+of a man "to keep and bear arms," is a right palpably inconsistent with
+the idea of his being a slave. Yet the right is secured as effectually
+to those whom the states presume to call slaves, as to any whom the
+states condescend to acknowledge free.</p>
+
+<p>Under this provision any man has a right either to give or sell arms to
+those persons whom the states call slaves; and there is no
+<i>constitutional</i> power, in either the national or state governments,
+that can punish him for so doing; or that can take those arms from the
+slaves; or that can make it criminal for the slaves to use them, if,
+from the inefficiency of the laws, it should become necessary for them
+to do so, in defence of their own lives or liberties; for this
+constitutional right to keep arms implies the constitutional right to
+use them, if need be, for the defence of one's liberty or life.</p>
+
+<p><i>Seventh.</i> The constitution of the United States declares that "no state
+shall pass <i>any</i> law impairing the obligation of contracts."</p>
+
+<p>"The obligation of contracts," here spoken of, is, of necessity, the
+<i>natural obligation</i>; for that is the only real or true obligation that
+any contracts can have. It is also the only obligation, which courts
+recognize in any case, except where legislatures arbitrarily interfere
+to impair it. But the prohibition of the constitution is upon the
+states' passing any law whatever that shall impair the natural
+obligation of men's contracts. Yet, if slave laws were constitutional,
+they would effectually impair the obligation of all contracts entered
+into by those who are made slaves; for the slave laws must necessarily
+hold that all a slave's contracts are void.</p>
+
+<p>This prohibition upon the states to pass <i>any</i> law impairing the natural
+obligation of men's contracts, implies that all men have a
+constitutional right to enter into all contracts that have a natural
+obligation. It therefore <i>secures</i> the constitutional right of all men
+to enter into such contracts, and to have them respected by the state
+governments. Yet this constitutional right of all men to enter into all
+contracts that have a natural obligation, and to have those contracts
+recognized by law as valid, is a right plainly inconsistent with the
+idea that men can constitutionally be made slaves.</p>
+
+<p>This provision therefore absolutely prohibits the passage of slave laws,
+because laws that make men slaves must necessarily impair the obligation
+of all their contracts.</p>
+
+<p><i>Eighth.</i> Persons, whom some of the state governments recognize as
+slaves, are made eligible, by the constitution of the United States, to
+the office of president of the United States. The constitutional
+provision on this subject is this:</p>
+
+<div class="blockquot"><p>"No person, except a natural born citizen, or a citizen of the United
+States at the time of the adoption of this constitution, shall be
+eligible to the office of president; neither shall any person be
+eligible to that office, who shall not have attained the age of
+thirty-five years, and been fourteen years a resident of the United
+States."</p></div>
+
+<p>According to this provision, <i>all</i> "persons",<a name="FNanchor_23_23" id="FNanchor_23_23"></a><a href="#Footnote_23_23" class="fnanchor">[23]</a> who have resided
+within the United States fourteen years, have attained the age of
+thirty-five years, and are either <i>natural born citizens, or were
+citizens of the United States at the time of the adoption of the
+constitution</i>, are eligible to the office of president. No other
+qualifications than these being required by the constitution, no others
+can be legally demanded. The only question, then, that can arise, is as
+to the word "citizen." Who are the persons that come within this
+definition, as here used? The clause itself divides them into two
+classes, to wit, the "natural born," and those who were "citizens of the
+United States at the time of the adoption of the constitution." In
+regard to this latter class, it has before been shown, from the preamble
+to the constitution, that all who were "people of the United States,"
+(that is, permanent inhabitants,) at the time the constitution was
+adopted, were made citizens by it. And this clause, describing those
+eligible to the office of president, implies the same thing. This is
+evident; for it speaks of those who were "citizens of the <i>United
+States</i> at the time of the adoption of the constitution." Now there
+clearly could have been no "citizens of the United States, at the time
+of the adoption of the constitution," unless they were made so by the
+constitution itself; for there were <i>no</i> "citizens of the <i>United
+States</i>" <i>before</i> the adoption of the constitution. The Confederation
+had no citizens. It was a mere league between the state governments. The
+separate states belonging to the confederacy had each their own citizens
+respectively. But the confederation itself, as such, had no citizens.
+There were, therefore, no "citizens of the United States," (but only
+citizens of the respective states,) before the adoption of the
+constitution.&mdash;Yet this clause asserts that immediately on the adoption,
+or "at the time of the adoption of this constitution," there <i>were</i>
+"citizens of the United States." Those, then, who were "citizens of the
+United States at the time of the adoption of the constitution," were
+necessarily those, and only those, who had been made so by the adoption
+of the constitution; because they could have become citizens at that
+precise "time" in no other way. If, then, any persons were made
+citizens by the adoption of the constitution, who were the <i>individuals</i>
+that were thus made citizens? They were "the people of the United
+States," of course&mdash;as the preamble to the constitution virtually
+asserts. And if "the people of the United States" were made citizens by
+the adoption of the constitution, then <i>all</i> "the people of the United
+States" were necessarily made citizens by it&mdash;for no discrimination is
+made by the constitution between different individuals, "people of the
+United States"&mdash;and there is therefore no means of determining who were
+made citizens by the adoption of the constitution, unless <i>all</i> "the
+people of the United States" were so made. Any "person," then, who was
+one of "the people of the United States" "at the time of the adoption of
+this constitution," and who is thirty-five years old, and has resided
+fourteen years within the United States, is eligible to the office of
+president of the United States. And if every such person be eligible,
+under the constitution, to the office of president of the United States,
+the constitution certainly does not recognize them as slaves.</p>
+
+<p>The other class of citizens, mentioned as being eligible to the office
+of president, consists of the "natural born citizens." Here is an
+implied assertion that <i>natural birth</i> in the country gives the right of
+citizenship. And if it gives it to one, it necessarily gives it to
+all&mdash;for no discrimination is made; and if all persons, born in the
+country, are not entitled to citizenship, the constitution has given us
+no test by which to determine who of them are entitled to it.</p>
+
+<p>Every person, then, born in the country, and that shall have attained
+the age of thirty-five years, and been fourteen years a resident within
+the United States, is eligible to the office of president. And if
+eligible to that office, the constitution certainly does not recognize
+him as a slave.</p>
+
+<p>Persons, who are "citizens" of the United States, according to the
+foregoing definitions, are also eligible to the offices of
+representative and senator of the United States; and therefore cannot be
+slaves.</p>
+
+<div class="blockquot"><p><i>Ninth.</i> The constitution declares that "the trial of all crimes,
+except in cases of impeachment, shall be <i>by jury</i>."&mdash;Also that
+"Treason against the United States shall consist only in levying war
+against them, or in adhering to their enemies, giving them aid and
+comfort."</p></div>
+
+<p>It is obvious that slaves, if we had any, might "levy war against the
+United States," and might also "adhere to their enemies, giving them aid
+and comfort." It may, however, be doubted whether they could commit the
+crime of treason&mdash;for treason implies a breach of fidelity, trust or
+allegiance, where fidelity, trust or allegiance is due. And it is very
+clear that slaves could owe allegiance, trust or fidelity, neither to
+the United States, nor to the state governments; for allegiance is due
+to a government only from those who are protected by it. Slaves could
+owe to our governments nothing but resistance and destruction. If
+therefore they were to levy war against the United States, they might
+not perhaps be liable to the technical charge of treason; although there
+would, in reality, be as much treason in their act, as there would of
+any other crime&mdash;for there would, in truth, be neither legal nor moral
+crime of any kind in it. Still, the government would be compelled, in
+order to protect itself against them, to charge them with some crime or
+other&mdash;treason, murder, or something else. And this charge, whatever it
+might be, would have to be tried by a jury. And what (in criminal
+cases,) is the "trial by jury?" It is a trial, both of the law and the
+fact, by the "peers," or equals, of the person tried. Who are the
+"peers" of a slave? None, evidently, but slaves. If, then, the
+constitution recognizes any such class of persons, in this country, as
+slaves, it would follow that for any crime committed by them against the
+United States, they must be tried, both on the law and the facts, by a
+jury of slaves. The result of such trials we can readily imagine.</p>
+
+<p>Does this look as if the constitution guarantied, or even recognized the
+legality of slavery?</p>
+
+<div class="blockquot"><p><i>Tenth.</i> The constitution declares that "The privilege of the writ of
+<i>habeas corpus</i> shall not be suspended, unless when, in cases of
+rebellion or invasion, the public safety may require it."</p></div>
+
+<p>The privilege of this writ, wherever it is allowed, is of itself
+sufficient to make slavery impossible and illegal. The object and
+prerogative of this writ are to secure to all persons their natural
+right to personal liberty, against all restraint except from the
+government; and even against restraints by the government itself, unless
+they are imposed in conformity with established general laws, and upon
+the charge of some legal offence or liability. It accordingly liberates
+all who are held in custody against their will, (whether by individuals
+or the government,) unless they are held <i>on some formal writ or
+process, authorized by law, issued by the government, according to
+established principles, and charging the person held by it with some
+legal offence or liability</i>. The principle of the writ seems to be, that
+no one shall be restrained of his natural liberty, unless these three
+things conspire; 1st, that the restraint be imposed by <i>special command
+of the government</i>; 2d, that there be a general law authorizing
+restraints for specific causes; and, 3d, that the government, previously
+to issuing process for restraining any particular individual, shall
+itself, by its proper authorities, take express cognizance of, and
+inquire cautiously into the facts of each case, and ascertain, by
+reasonable evidence, that the individual has brought himself within the
+liabilities of the general law. All these things the writ of <i>habeas
+corpus</i> secures to be done, before it will suffer a man to be restrained
+of his liberty; for the writ is a mandate to the person holding another
+in custody, commanding him to bring his prisoner before the court, and
+show the authority by which it holds him. Unless he then exhibit a legal
+precept, warrant or writ, issued by, and bearing the seal of the
+government, specifying a legal ground for restraining the prisoner, and
+authorizing or requiring him to hold him in custody, he will be ordered
+to let him go free. Hence all the keepers of prisons, in order to hold
+their prisoners against the authority of this writ, are required, in the
+case of each prisoner, to have a written precept or order, bearing the
+seal of the government, and issued by the proper authority, particularly
+describing the prisoner by name or otherwise, and setting forth the
+legal grounds of his imprisonment, and requiring the keeper of the
+prison to hold him in his custody.</p>
+
+<p>Now the master does not hold his slave in custody by virtue of any
+formal or legal writ or process, either authorized by law, or issued by
+the government, or that charges the slave with any legal offence or
+liability. A slave is incapable of incurring any legal liability, or
+obligation to his master. And the government could, with no more
+consistency, grant a writ or process to the master, to enable him to
+hold his slave, than it could to enable him to hold his horse. It simply
+recognizes his right of property in his slave, and then leaves him at
+liberty to hold him by brute force, if he can, as he holds his ox, or
+his horse&mdash;and not otherwise. If the slave escape, or refuse to labor,
+the slave code no more authorizes the government to issue legal process
+against the slave, to authorize the master to catch him, or compel him
+to labor, than it does against a horse for the same purpose.&mdash;The slave
+is held simply as property, by individual force, without legal process.
+But the writ of <i>habeas corpus</i> acknowledges no such principle as the
+right of property in man. If it did, it would be perfectly impotent in
+all cases whatsoever; because it is a principle of law, in regard to
+property, that simple possession is <i>prima facie</i> evidence of ownership;
+and therefore any man, who was holding another in custody, could defeat
+the writ by pleading that he owned his prisoner, and by giving, as proof
+of ownership, the simple fact that he was in possession of him. If,
+therefore, the writ of <i>habeas corpus</i> did not, of itself, involve a
+denial of the right of property in man, the fact stated in it, that one
+man was holding another in custody, would be <i>prima facie</i> evidence
+that he owned him, and had a right to hold him; and the writ would
+therefore carry an absurdity in its face.</p>
+
+<p>The writ of <i>habeas corpus</i>, then, <i>necessarily</i> denies the right of
+property in man. And the constitution, by declaring, without any
+discrimination of persons, that "the privilege of this writ shall not be
+suspended,"&mdash;that is, shall not be denied to any human being&mdash;has
+declared that, under the constitution, there can be no right of property
+in man.</p>
+
+<p>This writ was unquestionably intended as a great constitutional guaranty
+of personal liberty. But unless it denies the right of property in man,
+it in reality affords no protection to any of us against being made
+slaves. If it does deny the right of property in man, the slave is
+entitled to the privilege of the writ; for he is held in custody by his
+master, simply on the ground of property.</p>
+
+<p>Mr. Christian, one of Blackstone's editors, says that it is this writ
+that makes slavery impossible in England. It was on this writ, that
+Somerset was liberated. The writ, in fact, asserts, as a great
+constitutional principle, the natural right of personal liberty. And the
+privilege of the writ is not confined to citizens, but extends to all
+human beings.<a name="FNanchor_24_24" id="FNanchor_24_24"></a><a href="#Footnote_24_24" class="fnanchor">[24]</a> And it is probably the only absolute guaranty, that
+our national constitution gives to foreigners and aliens, that they
+shall not, on their arrival here, be enslaved by those of our state
+governments that exhibit such propensities for enslaving their
+fellow-men. For this purpose, it is a perfect guaranty to people who
+come here from any part of the world. And if it be such a guaranty to
+foreigners and aliens, is it no guaranty to those born under the
+constitution? Especially when the constitution makes no discrimination
+of persons?</p>
+
+<div class="blockquot"><p><i>Eleventh.</i> "The United States shall guaranty to every state in this
+union a republican form of government, and shall protect each of
+them against invasion; and, on application of the legislature, or of
+the executive, (when the legislature cannot be convened,) against
+domestic violence."</p></div>
+
+<p>Mark the strength and explicitness of the first clause of this section,
+to wit, "The United States <i>shall guarantee</i> to every state in this
+union a republican form of government." Mark also especially that this
+guaranty is one of liberty, and not of slavery.</p>
+
+<p>We have all of us heretofore been compelled to hear, from individuals of
+slaveholding principles, many arrogant and bombastic assertions,
+touching the constitutional "<i>guaranties</i>" given to <i>slavery</i>; and
+persons, who are in the habit of taking their constitutional law from
+other men's mouths, instead of looking at the constitution for
+themselves, have probably been led to imagine that the constitution had
+really given such guaranties in some explicit and tangible form. We
+have, nevertheless, seen that all those pretended guaranties are at most
+nothing but certain vague hints, insinuations, ciphers and innuendoes,
+that are imagined to be covered up under language which legally means
+nothing of the kind. But, in the clause now cited, we do have an
+explicit and peremptory "guaranty," depending upon no implications,
+inferences or conjectures, and couched in no uncertain or ambiguous
+terms. And what is this guaranty? Is it a guaranty of slavery? No. It is
+a guaranty of something flatly incompatible with slavery: a guaranty of
+"a republican form of government to every state in this union."</p>
+
+<p>And what is "a republican form of government?" It is where the
+government is a commonwealth&mdash;the property of the public, of the mass of
+the people, or of the entire people. It is where the government is made
+up of, and controlled by the combined will and power of the public, or
+the mass of the people&mdash;and where, of natural consequence, it will have,
+for its object, the protection of the rights of all. It is indispensable
+to a republican form of government, that the public, the mass of the
+people, if not the entire people, participate in the grant of powers to
+the government, and in the protection afforded by the government. It is
+impossible, therefore, that a government, under which any considerable
+number of the people, (if indeed any number of the people,) are
+disfranchised and enslaved, can be a republic. A slave government is an
+oligarchy; and one too of the most arbitrary and criminal character.</p>
+
+<p>Strange that men, who have eyes capable of discovering in the
+constitution so many covert, implied and insinuated guaranties of crime
+and slavery, should be blind to the legal import of so open, explicit
+and peremptory a guaranty of freedom, equality and right.</p>
+
+<p>Even if there had really been, in the constitution, two such
+contradictory guaranties, as one of liberty or republicanism in every
+state of the Union, and another of slavery in every state where one
+portion of the people might succeed in enslaving the rest, one of these
+guaranties must have given way to the other&mdash;for, being plainly
+inconsistent with each other, they could not have stood together. And it
+might safely have been left either to legal or to moral rules to
+determine which of the two should prevail&mdash;whether a provision to
+perpetuate slavery should triumph over a guaranty of freedom.</p>
+
+<p>But it is constantly asserted, in substance, that there is "<i>no
+propriety</i>" in the general government's interfering in the local
+governments of the states. Those who make this assertion appear to
+regard a state as a single individual, capable of managing his own
+affairs, and of course unwilling to tolerate the intermeddling of
+others. But a state is not an individual. It is made up of large numbers
+of individuals, each and all of whom, amid the intestine mutations and
+strifes to which states are subject, are liable, at some time or other,
+to be trampled upon by the strongest party, and may therefore reasonably
+choose to secure, in advance, some external protection against such
+emergencies, by making reciprocal contracts with other people similarly
+exposed in the neighboring states. Such contracts for mutual succor and
+protection, are perfectly fit and proper for any people who are so
+situated as to be able to contribute to each other's security. They are
+as fit and proper as any other political contracts whatever; and are
+founded on precisely the same principle of combination for mutual
+defence&mdash;for what are any of our political contracts and forms of
+government, but contracts between man and man for mutual protection
+against those who may conspire to injure either or all of them? But
+these contracts, fit and proper between all men, are peculiarly
+appropriate to those, who, while they are members of various local and
+subordinate associations, are, at the same time, united for specific
+purposes, under one general government. Such a mutual contract, between
+the people of all the states, is contained in this clause of the
+constitution. And it gives to them all an additional guaranty for their
+liberties.</p>
+
+<p>Those who object to this guaranty, however, choose to overlook all these
+considerations, and then appear to imagine that their notions of
+"propriety" on this point, can effectually expunge the guaranty itself
+from the constitution. In indulging this fancy, however, they
+undoubtedly overrate the legal, and perhaps also the moral effect of
+such superlative fastidiousness; for even if there were "<i>no propriety</i>"
+in the interference of the general government to maintain a republican
+form of government in the states, still, the unequivocal pledge to that
+effect, given in the constitution, would nevertheless remain an
+irresistible rebutter to the allegation that the constitution intended
+to guaranty its opposite, slavery, an oligarchy, or a despotism. It
+would, therefore, entirely forbid all those inferences and implications,
+drawn by slaveholders, from those other phrases, which they quote as
+guaranties of slavery.<a name="FNanchor_25_25" id="FNanchor_25_25"></a><a href="#Footnote_25_25" class="fnanchor">[25]</a></p>
+
+<p>But the "propriety," and not only the propriety, but the necessity of
+this guaranty, may be maintained on still other grounds.</p>
+
+<p>One of these grounds is, that it would be impossible, consistently with
+the other provisions of the constitution, that the general government
+itself could be republican, unless the state governments were republican
+also. For example. The constitution provides, in regard to the choice of
+congressional representatives, that "the electors in each state shall
+have the qualifications requisite for electors of the most numerous
+branch of the state legislature." It was indispensable to the internal
+quiet of each state, that the same body of electors, who should
+participate in the suffrage of the state governments, should participate
+also in the suffrage of the national one&mdash;and <i>vice versa</i>, that those
+who should participate in the national suffrage, should also participate
+in that of the state. If the general and state constitutions had each a
+different body of electors within each state, it would obviously give
+rise at once to implacable and irreconcilable feuds, that would result
+in the overthrow of one or the other of the governments within the
+state. Harmony or inveterate conflict was the only alternative. As
+conflict would necessarily result in the destruction of one of the
+governments, harmony was the only mode by which both could be preserved.
+And this harmony could be secured only by giving to the same body of
+electors, suffrage in both the governments.</p>
+
+<p>If, then, it was indispensable to the existence and authority of both
+governments, within the territory of each state, that the same body, and
+only the same body of electors, that were represented in one of the
+governments, should be represented in the other, it was clearly
+indispensable, in order that the national one should be republican, that
+the state governments should be republican also. Hence the interest
+which the nation at large have in the republicanism of each of the state
+governments.</p>
+
+<p>It being necessary that the suffrage under the national government,
+within each state, should be the same as for the state government, it is
+apparent that unless the several state governments were all formed on
+one general plan, or unless the electors of all the states were united
+in the acknowledgement of some general controlling principle, applicable
+to both governments, it would be impossible that they could unite in the
+maintenance of a general government that should act in harmony with the
+state governments; because the same body of electors, that should
+support a despotic government in the state, could not consistently or
+cordially unite, or even unite at all, in the support of a republican
+government for the nation. If one portion of the state governments
+should be republican, like Vermont, where suffrage is open to all&mdash;and
+another portion should be oligarchies, like South Carolina, and the
+other slave states&mdash;another portion limited monarchies, like
+England&mdash;another portion ecclesiastical, like that of the Pope of Rome,
+or that of the ancient Jews&mdash;and another portion absolute despotisms,
+like that of Nicholas, in Russia, or that of Francia, in Paraguay,&mdash;and
+the same body, and only the same body, of electors, that sustained each
+of these governments at home, should be represented in the national
+government, each state would send into the national legislature the
+representatives of its own peculiar system of government; and the
+national legislature, instead of being composed of the representatives
+of any one theory, or principle of government, would be made up of the
+representatives of all the various theories of government that prevailed
+in the different states&mdash;from the extreme of democracy to the extreme of
+despotism. And each of these various representatives would be obliged to
+carry his local principles into the national legislature, else he could
+not retain the confidence of his peculiar constituents. The consequence
+would be, that the national legislature would present the spectacle of a
+perfect Babel of discordant tongues, elements, passions, interests and
+purposes, instead of an assembly united for the accomplishment of any
+agreed or distinct object.</p>
+
+<p>Without some distinct and agreed object as a bond of union, it would
+obviously be impracticable for any general union of the whole people to
+subsist; and that bond of union, whatever it be, must also harmonize
+with the principles of each of the state governments, else there would
+be a collision between the general and state governments.</p>
+
+<p>Now the great bond of union, agreed upon in the general government, was
+"the rights of man"&mdash;expressed in the national constitution by the terms
+"liberty and justice." What other bond could have been agreed upon? On
+what other principle of government could they all have united? Could
+they have united to sustain the divine right of kings? The feudal
+privileges of nobles? Or the supremacy of the Christian, Mahometan, or
+any other church? No. They all denied the divine right of kings, and the
+feudal rights of nobles; and they were of all creeds in religion. But
+they were agreed that all men had certain natural, inherent, essential
+and inalienable rights, among which were life, liberty and the pursuit
+of happiness; and that the preservation of these rights was the
+legitimate purpose of governments among men. They had avowed this
+principle before the world, had fought for it, and successfully defended
+it, against the mightiest power in the world. They had filled the world
+with its glory; and it, in turn, had filled the world with theirs. It
+had also gathered, and was then gathering, choice spirits, and large
+numbers of the oppressed from other nations unto them. And this
+principle&mdash;in which were involved the safety, interests and rights of
+each and every one of "the people," who were to unite for the formation
+of the government&mdash;now furnished a bond of union, that was at once
+sufficient, legitimate, consistent, honorable, of universal application,
+and having more general power over the hearts and heads of all of them,
+than any other that could be found to hold them together. It comported
+with their theory of the true objects of government. This principle,
+therefore, they adopted as the corner-stone of their national
+government; and, as a matter of necessity, all other things, on which
+this new government was in any degree to depend, or which was to depend
+in any degree upon this government, were then made to conform to this
+principle. Hence the propriety of the power given to the general
+government, of "guaranteeing to every state in the Union a republican
+form of government." Had not this power been given to the general
+government, the majorities in each state might have converted the state
+governments into oligarchies, aristocracies, monarchies or despotisms,
+that should not only have trampled upon the minorities, and defeated
+their enjoyment of the national constitution, but also introduced such
+factions and feuds into the national governments, as would have
+distracted its councils, and prostrated its power.</p>
+
+<p>But there were also motives of a pecuniary and social, as well as
+political nature, that made it proper that the nation should guarantee
+to the states a republican form of government.</p>
+
+<p>Commerce was to be established between the people of the different
+states. The commerce of a free people is many times more valuable than
+that of slaves. Freemen produce and consume vastly more than slaves.
+They have therefore more to buy and more to sell. Hence the free states
+have a direct pecuniary interest in the civil freedom of all the other
+states. Commerce between free and slave states is not reciprocal or
+equal. Who can measure the increase that would have been made to the
+industry and prosperity of the free states, if all the slaves in the
+country had been freemen, with all the wants and energies of freemen?
+And their masters had had all the thrift, industry, frugality and
+enterprise of men who depend upon their own labor, instead of the labor
+of slaves, for their prosperity? Great Britain thought it policy to
+carry on a seven years' war against us principally to secure to herself
+the control and benefits of the commerce of three millions of people and
+their posterity. But we now have nearly or quite the same number of
+slaves within our borders, and yet we think that commerce with them and
+their posterity is a matter with which we have no concern; that there is
+"<i>no propriety</i>" in that provision of the national constitution, which
+requires that the general government&mdash;which we have invested with the
+exclusive control of all commerce among the several states&mdash;should
+secure to these three millions the right of traffic with their fellow
+men, and to their fellow men the right of traffic with them, against the
+impertinent usurpations and tyranny of subordinate governments, that
+have no constitutional right to interfere in the matter.</p>
+
+<p>Again. The slave states, in proportion to their population, contribute
+nothing like an equal or equitable share to the aggregate of national
+wealth. It would probably be within the truth to say that, in proportion
+to numbers, the people of the free states have contributed ten times as
+much to the national wealth as the people of the slave states. Even for
+such wealth as the culture of their great staple, cotton, has added to
+the nation, the south are indebted principally, if not entirely, to the
+inventive genius of a single northern man.<a name="FNanchor_26_26" id="FNanchor_26_26"></a><a href="#Footnote_26_26" class="fnanchor">[26]</a> The agriculture of the
+slave states is carried on with rude and clumsy implements; by listless,
+spiritless and thriftless laborers; and in a manner speedily to wear out
+the natural fertility of the soil, which fertility slave cultivation
+seldom or never replaces. The mechanic arts are comparatively dead among
+them. Invention is utterly dormant. It is doubtful whether either a
+slave or a slave holder has ever invented a single important article of
+labor-saving machinery since the foundation of the government. And they
+have hardly had the skill or enterprise to apply any of those invented
+by others. Who can estimate the loss of wealth to the nation from these
+causes alone? Yet we of the free states give to the south a share in the
+incalculable wealth produced by our inventions and labor-saving
+machinery, our steam engines, and cotton gins, and manufacturing
+machinery of all sorts, and yet say at the same time that we have no
+interest, and that there is "no propriety" in the constitutional
+guaranty of that personal freedom to the people of the south, which
+would enable them to return us some equivalent in kind.</p>
+
+<p>For the want, too, of an enforcement of this guaranty of a republican
+form of government to each of the states, the population of the country,
+by the immigration of foreigners, has no doubt been greatly hindered.
+Multitudes almost innumerable, who would have come here, either from a
+love of liberty, or to better their conditions, and given the country
+the benefit of their talents, industry and wealth, have no doubt been
+dissuaded or deterred by the hideous tyranny that rides triumphant in
+one half of the nation, and extends its pestiferous and detested
+influence over the other half.</p>
+
+<p><i>Socially</i>, also, we have an interest in the freedom of all the states.
+We have an interest in free personal intercourse with all the people
+living under a common government with ourselves. We wish to be free to
+discuss, with any and all of them, all the principles of liberty and all
+the interests of humanity. We wish, when we meet a fellow man, to be at
+liberty to speak freely with him of his and our condition; to be at
+liberty to do him a service; to advise with him as to the means of
+improving his condition; and, if need be, to ask a kindness at his
+hands. But all these things are incompatible with slavery. Is this such
+an union as we bargained for? Was it "nominated in the bond," that we
+should be cut off from these the common rights of human nature? If so,
+point to the line and letter, where it is so written. Neither of them
+are to be found. But the contrary is expressly guarantied against the
+power of both the governments, state and national; for the national
+government is prohibited from passing any law abridging the freedom of
+speech and the press, and the state governments are prohibited from
+maintaining any other than a republican form of government, which of
+course implies the same freedom.</p>
+
+<p>The nation at large have still another interest in the republicanism of
+each of the states; an interest, too, that is indicated in the same
+section in which this republicanism is guarantied. This interest results
+from the fact that the nation are pledged to "protect" each of the
+states "against domestic violence." Was there no account taken&mdash;in
+reference either to the cost or the principle of this undertaking&mdash;as to
+what might be the character of the state governments, which we are thus
+pledged to defend against the risings of the people? Did we covenant, in
+this clause, to wage war against the rights of man? Did we pledge
+ourselves that those, however few, who might ever succeed in getting the
+government of a state into their hands, should thenceforth be recognized
+as the legitimate power of the state, and be entitled to the whole force
+of the general government to aid them in subjecting the remainder of the
+people to the degradation and injustice of slavery? Or did the nation
+undertake only to guarantee the preservation of "a republican form of
+government" against the violence of those who might prove its enemies?
+The reason of the thing, and the connexion, in which the two provisions
+stand in the constitution, give the answer.</p>
+
+<p>We have yet another interest still, and that no trivial one, in the
+republicanism of the state governments; an interest indicated, too, like
+the one last mentioned, in the very section in which this republicanism
+is assured. It relates to the defence against invasion. The general
+government is pledged to defend each of the states against invasion. Is
+it a thing of no moment, whether we have given such a pledge to free or
+to slave states? Is there no difference in the cost and hazard of
+defending one or the other? Is it of no consequence to the expense of
+life and money, involved in this undertaking, whether the people of the
+state invaded shall be united, as freemen naturally will be, as one man
+against the enemy? Or whether, as in slave states, half of them shall be
+burning to join the enemy, with the purpose of satisfying with blood the
+long account of wrong that shall have accrued against their oppressors?
+Did Massachusetts&mdash;who during the war of the revolution furnished more
+men for the common defence, than all the six southern states
+together&mdash;did she, immediately on the close of that war, pledge herself,
+as the slave holders would have it, that she would lavish her life in
+like manner again, for the defence of those whose wickedness and tyranny
+in peace should necessarily multiply their enemies and make them
+defenceless in war? If so, on what principle, or for what equivalent,
+did she do it? Did she not rather take care that the guaranty for a
+republican government should be inserted in the same paragraph with that
+for protection against invasion, in order that both the principle and
+the extent of the liability she incurred, might distinctly appear?</p>
+
+<p>The nation at large, then, as a political community under the
+constitution, have both interests and rights, and both of the most vital
+character, in the republicanism of each of the state governments. The
+guaranty given by the national constitution, securing such a government
+to each of the states, is therefore neither officious nor impertinent.
+On the contrary, this guaranty was a <i>sine qua non</i> to any national
+contract of union; and the enforcement of it is equally indispensable,
+if not to the continuance of the union at all, certainly to its
+continuance on any terms that are either safe, honorable or equitable
+for the north.</p>
+
+<p>This guaranty, then, is not idle verbiage. It is full of meaning. And
+that meaning is not only fatal to slavery itself, but it is fatal also
+to all those pretences, constructions, surmises and implications, by
+which it is claimed that the national constitution sanctions, legalizes,
+or even tolerates slavery.</p>
+
+<div class="footnote"><p><a name="Footnote_18_18" id="Footnote_18_18"></a><a href="#FNanchor_18_18"><span class="label">[18]</span></a> 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 <i>rights</i> 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
+"<i>irresistible clearness</i>," that its meaning cannot be evaded.</p></div>
+
+<div class="footnote"><p><a name="Footnote_19_19" id="Footnote_19_19"></a><a href="#FNanchor_19_19"><span class="label">[19]</span></a> "Laws are construed strictly to save a right."&mdash;<i>Whitney
+et al.</i> vs. <i>Emmett et al., 1 Baldwin, C.C.R.</i> 316.
+</p><p>
+"No law will make a construction 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."&mdash;<i>Jacob's Law Dictionary, title
+Law.</i></p></div>
+
+<div class="footnote"><p><a name="Footnote_20_20" id="Footnote_20_20"></a><a href="#FNanchor_20_20"><span class="label">[20]</span></a> In the convention that framed the constitution, when this
+clause was under discussion, "servants" were spoken of as a distinct
+class from "slaves." For instance, "Mr. Butler and Mr. Pickney moved to
+require 'fugitive slaves and servants to be delivered up like
+criminals.'" Mr. Sherman objected to delivering up either slaves or
+servants. He said he "saw no more propriety in the public seizing and
+surrendering a slave or servant, than a horse."&mdash;<i>Madison Papers, p.
+1447-8.</i>
+</p><p>
+The language finally adopted shows that they at last agreed to deliver
+up "<i>servants</i>," but <i>not "slaves"</i>&mdash;for as the word "servant" does not
+mean "slave," the word "service" does not mean slavery.
+</p><p>
+These remarks in the convention are quoted, not because the intentions
+of the convention are of the least legal consequence whatever; but to
+rebut the silly arguments of those who pretend that the convention, and
+not the people, adopted the constitution&mdash;and that the convention did
+not understand the legal difference between the word "servant" and
+"slave," and therefore used the word "service," in this clause, as
+meaning slavery.</p></div>
+
+<div class="footnote"><p><a name="Footnote_21_21" id="Footnote_21_21"></a><a href="#FNanchor_21_21"><span class="label">[21]</span></a> Gibbons <i>vs.</i> Ogden.&mdash;(9 Wheaton, 1.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_22_22" id="Footnote_22_22"></a><a href="#FNanchor_22_22"><span class="label">[22]</span></a> "The government (of the U.S.) proceeds directly from the
+people; is 'ordained and established' in the name of the
+people."&mdash;<i>M'Culloch</i> vs. <i>Maryland</i>, 4 <i>Wheaton</i>, 403.
+</p><p>
+"The government of the Union is emphatically and truly, a government of
+the people; and in form and in substance it emanates from them. Its
+powers are granted by them, and are to be exercised directly on them,
+and for their benefit."&mdash;<i>Same</i>, pages 404, 405.
+</p><p>
+"The constitution of the United States was ordained and established, not
+by the United States in their sovereign capacities, but emphatically, as
+the preamble of the constitution declares, by 'the people of the United
+States.'"&mdash;<i>Martin</i> vs. <i>Hunter's lessee</i>, 1 <i>Wheaton</i>, 324.</p></div>
+
+<div class="footnote"><p><a name="Footnote_23_23" id="Footnote_23_23"></a><a href="#FNanchor_23_23"><span class="label">[23]</span></a> That is, male persons. The constitution, whenever it uses
+the pronoun, in speaking of the president, uniformly uses the masculine
+gender&mdash;from which it may be inferred that male persons only were
+intended to be made eligible to the office.</p></div>
+
+<div class="footnote"><p><a name="Footnote_24_24" id="Footnote_24_24"></a><a href="#FNanchor_24_24"><span class="label">[24]</span></a> Somerset was not a citizen of England, or entitled, as
+such, to the protection of the English law. The privilege of the writ of
+<i>habeas corpus</i> was granted to him on the ground simply of his being a
+man.</p></div>
+
+<div class="footnote"><p><a name="Footnote_25_25" id="Footnote_25_25"></a><a href="#FNanchor_25_25"><span class="label">[25]</span></a> From whom come these objections to the "propriety" of the
+general government's interfering to maintain republicanism in the
+states? Do they not come from those who have ever hitherto claimed that
+the general government was bound to interfere to <i>put down
+republicanism</i>? And that those who were <i>republicans</i> at the north,
+might with perfect "propriety" and consistency, pledge their assistance
+to the despots of the south, to sustain the worst, the meanest and most
+atrocious of tyrannies? Yes, from the very same. To interfere to assist
+one half of the people of a state in the cowardly, cruel and fiendish
+work of crushing the other half into the earth, corresponds precisely
+with their chivalrous notions of "propriety;" but it is insufferable
+officiousness for them to form any political compacts that will require
+them to interfere to protect the weak against the tyranny of the strong,
+or to maintain justice, liberty, peace and freedom.</p></div>
+
+<div class="footnote"><p><a name="Footnote_26_26" id="Footnote_26_26"></a><a href="#FNanchor_26_26"><span class="label">[26]</span></a> Eli Whitney.</p></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_IX" id="CHAPTER_IX"></a>CHAPTER IX.</h2>
+
+<p class='center'>THE INTENTIONS OF THE CONVENTION.</p>
+
+
+<p>The intentions of the framers of the constitution, (if we could have, as
+we cannot, any <i>legal</i> knowledge of them, except from the words of the
+constitution,) have nothing to do with fixing the legal meaning of the
+constitution. That convention were not delegated to adopt or establish a
+constitution; but only to consult, devise and recommend. The instrument,
+when it came from their hands, was a mere proposal, having no legal
+force or authority. It finally derived all its validity and obligation,
+as a frame of government, from its adoption by the people at large.<a name="FNanchor_27_27" id="FNanchor_27_27"></a><a href="#Footnote_27_27" class="fnanchor">[27]</a>
+Of course the intentions of the people at large are the only ones, that
+are of any importance to be regarded in determining the legal meaning of
+the instrument. And their intentions are to be gathered entirely from
+the words, which they adopted to express them. And their intentions must
+be presumed to be just what, and only what the words of the instrument
+<i>legally</i> express. In adopting the constitution, the people acted as
+legislators, in the highest sense in which that word can be applied to
+human lawgivers. They were establishing a law that was to govern both
+themselves and their government. And their intentions, like those of
+other legislators, are to be gathered from the words of their
+enactments. Such is the dictate of both law and common sense.<a name="FNanchor_28_28" id="FNanchor_28_28"></a><a href="#Footnote_28_28" class="fnanchor">[28]</a> The
+instrument had been reported by their committee, the convention. But the
+people did not ask this committee what was the legal meaning of the
+instrument reported. They adopted it, judging for themselves of its
+legal meaning, as any other legislative body would have done. The people
+at large had not even an opportunity of consultation with the members of
+the convention, to ascertain their opinions. And even if they had
+consulted them, they would not have been bound at all by their opinions.
+But being unable to consult them, they were compelled to adopt or reject
+the instrument, on their own judgment of its meaning, without any
+reference to the opinions of the convention. The instrument, therefore,
+is now to be regarded as expressing the intentions of the people at
+large; and not the intentions of the convention, if the convention had
+any intentions differing from the meaning which the law gives to the
+words of the instrument.</p>
+
+<p>But why do the partizans of slavery resort to the debates of the
+convention for evidence that the constitution sanctions slavery? Plainly
+for no other reason than because the words of the instrument do not
+sanction it. But can the intentions of that convention, attested only by
+a mere skeleton of its debates, and not by any impress upon the
+instrument itself, add any thing to the words, or to the legal meaning
+of the words of the constitution? Plainly not. Their intentions are of
+no more consequence, in a legal point of view, than the intentions of
+any other equal number of the then voters of the country. Besides, as
+members of the convention, they were not even parties to the instrument;
+and no evidence of their intentions, at <i>that</i> time, is applicable to
+the case. They became parties to it only by joining with the rest of the
+people in its subsequent adoption; and they themselves, equally with
+the rest of the people, must then be presumed to have adopted its legal
+meaning, and that alone&mdash;notwithstanding any thing they may have
+previously said. What absurdity then is it to set up the opinions
+expressed in the convention, and by a few only of its members, in
+opposition to the opinions expressed by the whole people of the country,
+in the constitution itself.</p>
+
+<p>But notwithstanding the opinions expressed in the convention by some of
+the members, we are bound, as a matter of law, to presume that the
+convention itself, in the aggregate, had no intention of sanctioning
+slavery&mdash;and why? Because, after all their debates, they agreed upon an
+instrument that did not sanction it. This was confessedly the result in
+which all their debates terminated. This instrument is also the <i>only</i>
+authentic evidence of their intentions. It is subsequent in its date to
+all the other evidence. It comes to us, also, as none of the other
+evidence does, <i>signed with their own hands</i>. And is this to be set
+aside, and the constitution itself to be impeached and destroyed, and
+free government overturned, on the authority of a few meagre snatches of
+argument, intent or opinion, uttered by a few only of the members;
+jotted down by one of them, (Mr. Madison,) merely for his own
+convenience, or from the suggestions of his own mind; and only reported
+to us fifty years afterwards by a posthumous publication of his papers?
+If any thing could excite the utter contempt of the people of this
+nation for the miserable subterfuges, to which the advocates of slavery
+resort, it would seem that their offering such evidence as this in
+support of their cause, must do it. And yet these, and such as these
+mere fragments of evidence, all utterly inadmissible and worthless in
+their kind, for any legal purpose, constitute the warp and the woof, the
+very <i>sine qua non</i> of the whole argument for slavery.</p>
+
+<p>Did Mr. Madison, when he took his oath of office, as president of the
+United States, swear to support these scraps of debate, which he had
+filed away among his private papers?&mdash;Or did he swear to support that
+written instrument, which the people of the country had agreed to, and
+which was known to them, and to all the world, as the constitution of
+the United States.<a name="FNanchor_29_29" id="FNanchor_29_29"></a><a href="#Footnote_29_29" class="fnanchor">[29]</a></p>
+
+<p>But even if the unexpressed intentions, which these notes of debate
+ascribe to certain members, had been participated in by the whole
+convention, we should have had no right to hold the people of the
+country at large responsible for them. <i>This convention sat with closed
+doors</i>, and it was not until near fifty years after the people had
+adopted the constitution itself, that these private intentions of the
+framers authentically transpired. And even now all the evidence
+disclosed implicates, <i>directly and absolutely</i>, but few of the
+members&mdash;not even all from the slaveholding states. The intentions of
+all the rest, we have a right to presume, concurred with their votes and
+the words of the instrument; and they had therefore no occasion to
+express contrary ones in debate.</p>
+
+<p>But suppose that <i>all</i> the members of the convention had participated in
+these intentions&mdash;what then? Any forty or fifty men, like those who
+framed the constitution, may now secretly concoct another, that is
+honest in its terms, and yet in secret conclave confess to each other
+the criminal objects they intend to accomplish by it, if its honest
+character should enable them to secure for it the adoption of the
+people.&mdash;But if the people should adopt such constitution, would they
+thereby adopt any of the criminal and secret purposes of its authors? Or
+if the guilty confessions of these conspirators should be revealed fifty
+years afterwards, would judicial tribunals look to them as giving the
+government any authority for violating the legal meaning of the words of
+such constitution, and for so construing them as to subserve the
+criminal and shameless purposes of its originators?</p>
+
+<p>The members of the convention, as such, were the mere scriveners of the
+constitution; and their individual purposes, opinions or expressions,
+then uttered in secret cabal, though now revealed, can no more be
+evidence of the intentions of the people who adopted the constitution,
+than the secret opinions or expressions of the scriveners of any other
+contract can be offered to prove the intentions of the true parties to
+such contract. As framers of the constitution, the members of the
+convention gave to it no validity, meaning, or legal force. They simply
+drafted it, and offered it, such as it legally might be, to the people
+for their adoption or rejection. The people, therefore, in adopting it,
+had no reference whatever to the opinions of the convention. They had no
+authentic evidence of what those opinions were. They looked simply at
+the instrument. And they adopted even its legal meaning by a bare
+majority. If the instrument had contained any tangible sanction of
+slavery, the people would sooner have had it burned by the hands of the
+common hangman, than they would have adopted it, and thus sold
+themselves as pimps to slavery, covered as they were with the scars they
+had received in fighting the battles of freedom. And the members of the
+convention knew that such was the feeling of a large portion of the
+people; and for that reason, if for no other, they dared insert in the
+instrument no legal sanction of slavery. They chose rather to trust to
+their craft and influence to corrupt the government, (of which they
+themselves expected to be important members,) after the constitution
+should have been adopted, rather than ask the necessary authority
+directly from the people. And the success they have had in corrupting
+the government, proves that they judged rightly in presuming that the
+government would be more flexible than the people.</p>
+
+<p>For other reasons, too, the people should not be charged with designing
+to sanction any of the secret intentions of the convention. When the
+states sent delegates to the convention, no avowal was made of any
+intention to give any national sanction to slavery. The articles of
+confederation had given none; the then existing state constitutions gave
+none; and it could not have been reasonably anticipated by the people
+that any would have been either asked for or granted in the new
+constitution. If such a purpose had been avowed by those who were at the
+bottom of the movement, the convention would doubtless never have been
+held. The avowed objects of the convention were of a totally different
+character. Commercial, industrial and defensive motives were the
+prominent ones avowed. When, then, the constitution came from the hands
+of such a convention, unstained with any legal or tangible sanction of
+slavery, were the people&mdash;who, from the nature of the case, could not
+assemble to draft one for themselves&mdash;bound either to discard it, or
+hold themselves responsible for all the secret intentions of those who
+had drafted it? Had they no power to adopt its legal meaning, and that
+alone! Unquestionably they had the power; and, as matter of law, as well
+as fact, it is equally unquestionable that they exercised it. Nothing
+else than the constitution, as a legal instrument, was offered to them
+for their adoption. Nothing else was legally before them that they could
+adopt. Nothing else, therefore, did they adopt.</p>
+
+<p>This alleged design, on the part of the convention, to sanction slavery,
+is obviously of no consequence whatever, unless it can be transferred to
+the people who adopted the constitution. Has any such transfer ever been
+shown? Nothing of the kind. It may have been known among politicians;
+and may have found its way into some of the state conventions. But there
+probably is not a little of evidence in existence, that it was generally
+known among the mass of the people. And, in the nature of things, it was
+nearly impossible that it should have been known by them. The national
+convention had sat with closed doors. Nothing was known of their
+discussions, except what was personally reported by the members. Even
+the discussions in the <i>state</i> conventions could not have been known to
+the people at large; certainly not until after the constitution had been
+ratified by those conventions. The ratification of the instrument, by
+those conventions, followed close on the heels of their
+discussions.&mdash;The population meanwhile was thinly scattered over the
+country. The public papers were few, and small, and far between. They
+could not even make such reports of the discussions of public bodies, as
+newspapers now do. The consequence must have been that the people at
+large knew nothing of the intentions of the framers of the constitution,
+but from its words, until after it was adopted. Nevertheless, it is to
+be constantly borne in mind, that even if the people had been fully
+cognizant of those intentions, they would not therefore have adopted
+them, or become at all responsible for them, so long as the intentions
+themselves were not incorporated in the instrument. Many selfish,
+ambitious and criminal purposes, not expressed in the constitution, were
+undoubtedly intended to be accomplished by one and another of the
+thousands of unprincipled politicians, that would naturally swarm around
+the birth-place, and assist at the nativity of a new and splendid
+government. But the people are not therefore responsible for those
+purposes; nor are those purposes, therefore, a part of the constitution;
+nor is its language to be construed with any view to aid their
+accomplishment.</p>
+
+<p>But even if the people intended to sanction slavery by adopting the
+intentions of the convention, it is obvious that they, like the
+convention, intended to use no language that should legally convey that
+meaning, or that should necessarily convict them of that intention in
+the eyes of the world.&mdash;They, at least, had enough of virtuous shame to
+induce them to conceal this intention under the cover of language, whose
+legal meaning would enable them always to aver,</p>
+
+<p class='center'>"Thou canst not say I did it."</p>
+
+<p>The intention, therefore, that the judiciary should construe certain
+language into an authority for slavery, when such is not the legal
+meaning of the language itself, cannot be ascribed to the people, except
+upon the supposition that the people presumed their judicial tribunals
+would have so much less of shame than they themselves, as to <i>volunteer</i>
+to carry out these their secret wishes, by going beyond the words of the
+constitution they should be sworn to support, and violating all legal
+rules of construction, and all the free principles of the instrument. It
+is true that the judiciary, (whether the people intended it or not,)
+have proved themselves to be thus much, at least, more shameless than
+the people, or the convention. Yet that is not what ought to have been
+expected of judicial tribunals. And whether such were really the
+intention of the convention, or the people, is, at least a matter of
+conjecture and history, and not of law, nor of any evidence cognizable
+by any judicial tribunal.</p>
+
+<p>Why should we search at all for the intentions, either of the
+convention, or of the people, beyond the words which both the convention
+and the people have agreed upon to express them? What is the object of
+written constitutions, and written statutes, and written contracts? Is
+it not that the meaning of those who make them may be known with the
+most absolute precision of which language is capable? Is it not to get
+rid of all the fraud, and uncertainty, and disagreements of oral
+testimony? Where would be our constitution, if, instead of its being a
+written instrument, it had been merely agreed upon orally by the members
+of the convention? And by them only orally reported to the people? And
+only this oral report of it had been adopted by the people? And all our
+evidence of what it really was, had rested upon reports of what Mr. A,
+and Mr. B, members of the convention, had been heard to say? Or upon Mr.
+Madison's notes of the debates of the convention? Or upon the oral
+reports made by the several members to their respective constituents, or
+to the respective state conventions? Or upon flying reports of the
+opinions which a few individuals, out of the whole body of the people,
+had formed of it when they adopted it? No two of the members of the
+convention would probably have agreed in their representations of what
+the constitution really was. No two of the people would have agreed in
+their understanding of the constitution when they adopted it. And the
+consequence would have been that we should really have had no
+constitution at all. Yet there is as much ground, both in reason and in
+law, for thus throwing aside the <i>whole</i> of the written instrument, and
+trusting entirely to these other sources for evidence of what any part
+of the constitution really is, as there is for throwing aside those
+particular portions of the written instrument, which bear on slavery,
+and attempting to supply their place from such evidence as these other
+sources may chance to furnish. And yet, to throw aside the written
+instrument, so far as its provisions are prohibitory of slavery, and
+make a new constitution on that point, out of other testimony, is the
+only means, confessedly the only means, by which slavery can be made
+constitutional.</p>
+
+<p>And what is the object of resorting to these flying reports for
+evidence, on which to change the meaning of the constitution? Is it to
+change the instrument from a dishonest to an honest one? from an unjust
+to a just one? No. But directly the reverse&mdash;and solely that dishonesty
+and injustice may be carried into effect. A purpose, for which no
+evidence of any kind whatever could be admitted in a court of justice.</p>
+
+<p>Again. If the principle be admitted, that the meaning of the
+constitution can be changed, on proof being made that the scriveners or
+framers of it had secret and knavish intentions, which do not appear on
+the face of the instrument, then perfect license is given to the
+scriveners of constitutions to contrive any secret scheme of villainy
+they may please, and impose it upon the people as a system of
+government, under cover of a written instrument that is so plainly
+honest and just in its terms, that the people readily agree to it. Is
+such a principle to be admitted in a country where the people claim the
+prerogative of establishing their own government, and deny the right of
+any body to impose a government upon them, either by force, or fraud, or
+against their will?</p>
+
+<p>Finally. The constitution is a contract; a written contract, consisting
+of a certain number of precise words, to which, and to which only, all
+the parties to it have, in theory, agreed. Manifestly neither this
+contract, nor the meaning of its words, can be changed, without the
+consent of all the parties to it. Nor can it be changed on a
+representation, to be made by any number of them less than the whole,
+that they intended any thing different from what they have said. To
+change it, on the representation of a part, without the consent of the
+rest, would be a breach of contract as to all the rest. And to change
+its <i>legal meaning</i>, without their consent, would be as much a breach of
+the contract as to change its words. If there were a single honest man
+in the nation, who assented, in good faith, to the honest and legal
+meaning of the constitution, it would be unjust and unlawful to change
+the meaning of the instrument so as to sanction slavery, even though
+every other man in the nation should testify that, in agreeing to the
+constitution, he intended that slavery should be sanctioned. If there
+were <i>not</i> a single honest man in the nation, who adopted the
+constitution in good faith, and with the intent that its legal meaning
+should be carried into effect, its legal meaning would nevertheless
+remain the same; for no judicial tribunal could lawfully allow the
+parties to it to come into court and allege their dishonest intentions,
+and claim that they be substituted for the legal meaning of the words of
+the instrument.</p>
+
+<div class="footnote"><p><a name="Footnote_27_27" id="Footnote_27_27"></a><a href="#FNanchor_27_27"><span class="label">[27]</span></a> The Supreme Court say, "The instrument, when it came from
+their hands, (that is, the hands of the convention,) was a mere
+proposal, without obligation or pretension to it." "The people were at
+perfect liberty to accept or reject it; and their act was
+final."&mdash;<i>M'Cullock</i> vs. <i>Maryland</i>,&mdash;4 <i>Wheaton</i> 403-4.</p></div>
+
+<div class="footnote"><p><a name="Footnote_28_28" id="Footnote_28_28"></a><a href="#FNanchor_28_28"><span class="label">[28]</span></a> The Supreme Court of the United States say:
+</p><p>
+"The intention of the instrument must prevail: <i>this intention must be
+collected from its words</i>."&mdash;<i>Ogden</i> vs. <i>Saunders</i>,&mdash;12 <i>Wheaton</i>, 332.
+</p><p>
+"The intention of the legislature is to be searched for in the words
+which the legislature has employed to convey it."&mdash;<i>Schr. Paulina's
+Cargo</i> vs. <i>United States</i>,&mdash;7 <i>Cranch</i>, 60.</p></div>
+
+<div class="footnote"><p><a name="Footnote_29_29" id="Footnote_29_29"></a><a href="#FNanchor_29_29"><span class="label">[29]</span></a> "Elliot's Debates," so often referred to, are, if
+possible, a more miserable authority than Mr. Madison's notes. He seems
+to have picked up the most of them from the newspapers of the day, in
+which they were reported by nobody now probably knows whom. In his
+preface to his first volume, containing the debates in the Massachusetts
+and New York conventions, he says:
+</p><p>
+"In the compilation of this volume, care has been taken to search into
+contemporary publications, in order to make the work as perfect as
+possible; still, however, the editor is sensible, from the daily
+experience of newspaper reports, of the present time, that the
+sentiments they contain may, in some instances, have been inaccurately
+taken down, and in others, probably too faintly sketched, fully to
+gratify the inquisitive politician." He also speaks of them as "rescued
+from the ephemeral prints of that day, and now, for the first time,
+presented in a uniform and durable form."
+</p><p>
+In the preface to his second volume, which is devoted to the Virginia
+convention, he says the debates were reported by an able stenographer,
+David Robertson; and then quotes the following from Mr. Wirt, in a note
+to the life of Patrick Henry:
+</p><p>
+"From the skill and ability of the reporter, there can be no doubt that
+the substance of the debates, as well as their general course, are
+accurately preserved."
+</p><p>
+In his preface to the third volume, embracing the North Carolina and
+Pennsylvania conventions, he says:
+</p><p>
+"The <i>first</i> of the two North Carolina conventions is contained in this
+volume; the <i>second</i> convention, it is believed, <i>was neither
+systematically reported nor printed</i>." "The debates in the Pennsylvania
+convention, that have been preserved, it appears, <i>are on one side
+only</i>; a search into the contemporary publications of the day, has been
+unsuccessful to furnish us with the other side of the question."
+</p><p>
+In his preface to the fourth volume, he says:
+</p><p>
+"In compiling the opinions, on constitutional questions, delivered in
+congress, by some of the most enlightened senators and representatives,
+the files of the New York and Philadelphia newspapers, from 1789 to
+1800, had to be relied on; from the latter period to the present, the
+National Intelligencer is the authority consulted for the desired
+information."
+</p><p>
+It is from such stuff as this, collected and published thirty-five and
+forty years after the constitution was adopted&mdash;stuff very suitable for
+constitutional dreams to be made of&mdash;that our courts and people now make
+their constitutional law, in preference to adopting the law of the
+constitution itself. In this way they manufacture law strong enough to
+bind three millions of men in slavery.</p></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_X" id="CHAPTER_X"></a>CHAPTER X.</h2>
+
+<p class='center'>THE PRACTICE OF THE GOVERNMENT.</p>
+
+
+<p>The practice of the government, under the constitution, has not altered
+the legal meaning of the instrument. It means now what it did before it
+was ratified, when it was first offered to the people for their adoption
+or rejection. One of the advantages of a written constitution is, that
+it enables the people to see what its character is before they adopt it;
+and another is, that it enables them to see, after they have adopted it,
+whether the government adheres to it, or departs from it. Both these
+advantages, each of which is indispensable to liberty, would be entirely
+forfeited, if the legal meaning of a written constitution were one thing
+when the instrument was offered to the people for their adoption, and
+could then be made another thing by the government after the people had
+adopted it.</p>
+
+<p>It is of no consequence, therefore, what meaning the government <i>have</i>
+placed upon the instrument; but only what meaning they were <i>bound to
+place upon it</i> from the beginning.</p>
+
+<p>The only question, then, to be decided, is, what was the meaning of the
+constitution, <i>as a legal instrument</i>, when it was first drawn up, and
+presented to the people, and before it was adopted by them?</p>
+
+<p>To this question there certainly can be but one answer.&mdash;There is not
+room for a doubt or an argument, on that point, in favor of slavery. The
+instrument itself is palpably a free one throughout, in its language,
+its principles, and all its provisions. As a legal instrument, there is
+no trace of slavery in it. It not only does not sanction slavery, but it
+does not even recognize its existence. More than this, it is palpably
+and wholly incompatible with slavery. It is also the supreme law of the
+land, in contempt of any state constitution or law that should attempt
+to establish slavery.</p>
+
+<p>Such was the character of the constitution when it was offered to the
+people, and before it was adopted. And if such was its character then,
+such is its character still. It cannot have been changed by all the
+errors and perversions, intentional or unintentional, of which the
+government may have since been guilty.</p>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_XI" id="CHAPTER_XI"></a>CHAPTER XI.</h2>
+
+<p class='center'>THE UNDERSTANDING OF THE PEOPLE.</p>
+
+
+<p>Although the inquiry may be of no legal importance, it may nevertheless
+be one pertinent to the subject, whether it be matter of <i>history</i>
+even&mdash;to say nothing of legal proof&mdash;that the <i>people</i> of the country
+did really understand or believe that the constitution sanctioned
+slavery? Those who make the assertion, are bound to prove it. The
+presumption is against them. Where is their contrary history?</p>
+
+<p>They will say that a part of the people were actually slaveholders, and
+that it is unreasonable to suppose they would have agreed to the
+constitution, if they had understood it to be a free one.</p>
+
+<p>The answer to this argument is, that the actual slaveholders were few in
+number compared with the whole people; comprising probably not more than
+one-eighth or one-sixth of the voters, and one-fortieth or one-thirtieth
+of the whole population. They were so few as to be manifestly incapable
+of maintaining any separate political organization; or even of holding
+their slave property, except under the sufferance, toleration and
+protection of the non-slaveholders. They were compelled, therefore, to
+agree to any political organization, which the non-slaveholders should
+determine on. This was at that time the case even in the strongest of
+the slaveholding states themselves. In all of them, without exception,
+the slaveholders were either obliged to live, or from choice did live,
+under free constitutions. They, of course, held their slave property in
+defiance of their constitutions. They were enabled to do this through
+the corrupting influence of their wealth and union. Controlling a large
+proportion of the wealth of their states, their social and political
+influence was entirely disproportionate to their numbers. They could act
+in concert. They could purchase talent by honors, offices and money.
+Being always united, while the non-slaveholders were divided, they could
+turn the scale in elections, and fill most of the offices with
+slaveholders. Many of the non-slaveholders doubtless were poor,
+dependent and subservient, (as large portions of the non-slaveholders
+are now in the slaveholding states,) and lent themselves to the support
+of slavery almost from necessity. By these, and probably by many other
+influences that we cannot now understand, they were enabled to maintain
+their hold upon their slave property in defiance of their constitutions.
+It is even possible that the slaveholders themselves did not choose to
+have the subject of slavery mentioned in their constitutions; that they
+were so fully conscious of their power to corrupt and control their
+governments, that they did not regard any constitutional provision
+necessary for their security; and that out of mere shame at the
+criminality of the thing, and its inconsistency with all the principles
+the country had been fighting for and proclaiming, they did not wish it
+to be named.</p>
+
+<p>But whatever may have been the cause of the fact, the fact itself is
+conspicuous, that from some cause or other, either with the consent of
+the slaveholders, or in defiance of their power, the constitutions of
+every one of the thirteen states were at that time free ones.</p>
+
+<p>Now is it not idle and useless to pretend, when even the strongest
+slaveholding states had free constitutions&mdash;when not one of the separate
+states, acting for itself, would have any but a free constitution&mdash;that
+the whole thirteen, when acting in unison, should concur in establishing
+a slaveholding one? The idea is preposterous. The single fact that all
+the state constitutions were at that time free ones, scatters for ever
+the pretence that the majority of the people of all the states either
+intended to establish, <i>or could have been induced to establish</i>, any
+other than a free one for the nation. Of course it scatters also the
+pretence that they believed or understood that they were establishing
+any but a free one.</p>
+
+<p>There very probably may have been a general belief among the people,
+that slavery would for a while live on, on sufferance; that the
+government, until the nation should have become attached to the
+constitution, and cemented and consolidated by the habit of union, would
+be too weak, and too easily corrupted by the innumerable and powerful
+appliances of slaveholders, to wrestle with and strangle slavery. But to
+suppose that the nation at large did not look upon the constitution as
+designed to destroy slavery, whenever its principles should be carried
+into full effect, is obviously to suppose an intellectual impossibility;
+for the instrument was plain, and the people had common sense; and those
+two facts cannot stand together consistently with the idea that there
+was any general, or even any considerable misunderstanding of its
+meaning.</p>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_XII" id="CHAPTER_XII"></a>CHAPTER XII.</h2>
+
+<p class='center'>THE STATE CONSTITUTIONS OF 1845.</p>
+
+
+<p>Of all the existing state constitutions, (excepting that of Florida,
+which I have not seen,) not one of them contains provisions that are
+sufficient, (or that would be sufficient if not restrained by the
+constitution of the United States,) to authorize the slavery that exists
+in the states. The material deficiency in all of them is, that they
+neither designate, nor give the legislatures any authority to designate
+the persons, who may be made slaves. Without such a provision, all their
+other provisions in regard to slaves are nugatory, simply because their
+application is legally unknown. They would apply as well to whites as to
+blacks, and would as much authorize the enslavement of whites as of
+blacks.</p>
+
+<p>We have before seen that none of the state constitutions, that were in
+existence in 1789, recognized slavery at all. Since that time, four of
+the old thirteen states, viz., Maryland, North Carolina, South Carolina
+and Georgia, have altered their constitutions so as to make them
+recognize slavery; yet not so as to provide for any legal designation of
+the persons to be made slaves.</p>
+
+<p>The constitution of South Carolina has a provision that implies that
+<i>some</i> of the slaves, at least, are "negroes;" but not that all slaves
+are negroes, nor that all negroes are slaves. The provision, therefore,
+amounts to nothing for the purposes of a constitutional designation of
+the persons who may be made slaves.</p>
+
+<p>The constitutions of Tennessee and Louisiana make no direct mention of
+slaves; and have no provisions in favor of slavery, unless the general
+one for continuing existing laws in force, be such a one. But both have
+specific provisions inconsistent with slavery. Both purport to be
+established by "the people;" both have provisions for the writ of
+<i>habeas corpus</i>. Indeed, the constitutions of most of the slave states
+have provisions for this writ, which, as has been before shown, denies
+the right of property in man. That of Tennessee declares also "that all
+courts shall be open, and <i>every man</i>, for an injury done him in his
+lands, goods, person or reputation, shall have remedy by due course of
+law, and right and justice administered without sale, denial or delay."
+Tennessee also was formerly a part of North Carolina; was set off from
+her while the constitution of North Carolina was a free one. Of course
+there has never been any legal slavery in Tennessee.</p>
+
+<p>The constitutions of the states of Kentucky, Missouri, Arkansas,
+Mississippi, and Alabama, all have provisions about slaves; yet none of
+them tell us who may be slaves. Some of them indeed provide for the
+admission into their state of such persons as are slaves under the laws,
+(which of course means only the <i>constitutional</i> laws,) <i>of other
+states</i>. But when we go to those other states, we find that their
+constitutions have made no designation of the persons who may be made
+slaves; and therefore we are as far from finding the actual persons of
+the slaves as we were before.</p>
+
+<p>The principal provision, in the several state constitutions, recognizing
+slavery, is, in substance, this, that the legislature shall have no
+power to <i>emancipate</i> slaves without the consent of their owners, or
+without making compensation. But this provision is of no avail to
+legalize slavery, for slavery must be <i>constitutionally established</i>,
+before there can be any legal slaves to be emancipated; and it cannot be
+established without describing the persons who may be made slaves.</p>
+
+<p>Kentucky was originally a part of Virginia, and derived her slaves from
+Virginia. As the constitution of Virginia was always a free one, it gave
+no authority for slavery in that part of the state which is now
+Kentucky. Of course Kentucky never had any legal slavery.</p>
+
+<p>Slavery was positively prohibited in all the states included in the
+Louisiana purchase, by the third article of the treaty of cession&mdash;which
+is in these words:&mdash;</p>
+
+<div class="blockquot"><p>Art. 3. "The <i>inhabitants</i>" (that is, <i>all</i> the inhabitants,) "of the
+ceded territory shall be incorporated in the union of the United
+States, and admitted as soon as possible, <i>according to the
+principles of the federal constitution</i>, to the enjoyment of all the
+rights, advantages, and immunities of <i>citizens</i> of the United
+States; and, in the mean time, they shall be maintained and protected
+in the free enjoyment of their liberty, property, and the religion
+which they profess."</p></div>
+
+<p>The cession of Florida to the United States was made on the same terms.
+The words of the treaty, on this point, are as follows:&mdash;</p>
+
+<div class="blockquot"><p>"Art. 6. The <i>inhabitants</i> of the territories, which his Catholic
+majesty cedes to the United States by this treaty, shall be
+incorporated in the Union of the United States, as soon as may be
+consistent with the principles of the federal constitution, and
+admitted to the enjoyment of all the privileges, rights and
+immunities of the <i>citizens</i> of the United States."</p></div>
+
+<p>To allow <i>any</i> of the "inhabitants," included in those treaties, to be
+held as slaves, or denied the rights of citizenship under the United
+States' constitution, is a plain breach of the treaties.</p>
+
+<p>The constitutions of some of the slave states have provisions like this,
+viz., that all laws previously in force, shall remain in force until
+repealed, unless repugnant to this constitution. But I think there is no
+instance, in which the slave acts, then on their statute books, could be
+perpetuated by this provision&mdash;and for two reasons; 1st. These slave
+acts were previously unconstitutional, and therefore were not, legally
+speaking, "laws in force."<a name="FNanchor_30_30" id="FNanchor_30_30"></a><a href="#Footnote_30_30" class="fnanchor">[30]</a> 2d. Every constitution, I think, that has
+this provision, has one or more other provisions that <i>are</i> "repugnant"
+to the slave acts.</p>
+
+<div class="footnote"><p><a name="Footnote_30_30" id="Footnote_30_30"></a><a href="#FNanchor_30_30"><span class="label">[30]</span></a> This principle would apply, as we have before seen, where
+the change was from the <i>colonial</i> to a state government. It would also
+apply to all cases where the change took place, under the constitution
+of the United States, from a <i>territorial</i> to a state government. It
+needs no argument to prove that all our territorial statutes, that have
+purported to authorize slavery, were unconstitutional.</p></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_XIII" id="CHAPTER_XIII"></a>CHAPTER XIII.</h2>
+
+<p class='center'>THE CHILDREN OF SLAVES ARE BORN FREE.</p>
+
+
+<p>The idea that the children of slaves are necessarily born slaves, or
+that they necessarily follow that <i>natural law</i> of property, which gives
+the natural increase of property to the owner of the original stock, is
+an erroneous one.</p>
+
+<p>It is a principle of natural law in regard to property, that a calf
+belongs to the owner of the cow that bore it; fruit to the owner of the
+tree or vine on which it grew; and so on. But the principle of <i>natural
+law</i>, which makes a calf belong to the owner of the cow, does not make
+the child of a slave belong to the owner of the slave&mdash;and why? Simply
+because both cow and calf are <i>naturally</i> subjects of property; while
+neither men nor children are <i>naturally</i> subjects of property. The law
+of nature gives no aid to any thing inconsistent with itself. It
+therefore gives no aid to the transmission of property in man&mdash;while it
+does give aid to the transmission of property in other animals and in
+things.</p>
+
+<p>Brute animals and things being <i>naturally</i> subjects of property, there
+are obvious reasons why the natural increase should belong to the owner
+of the original stock. But men, not being <i>naturally</i> subjects of
+property, the law of nature will not transmit any right of property
+acquired in violation of her own authority. The law of nature denies all
+rights not derived from herself. Of course she cannot perpetuate or
+transmit such rights&mdash;if rights they can be called.</p>
+
+<p>One important reason why a calf belongs to the owner of the cow that
+bore it, is, <i>that there is no principle of natural law that can be
+opposed to that ownership</i>. For the calf is naturally a subject of
+property, and if it were not given to the owner of the cow, it would be
+lawful for any other person to assume the ownership. No wrong would be
+done to the animal by so doing. But as man is not naturally a subject of
+property, and as each separate individual is, on principles of natural
+law, entitled to the control of his own person, it is as much a wrong,
+and as much a violation of natural law, to make a slave of the child of
+a slave, as to make a slave of any other person. The natural rights of
+the child to the control of his own person, rise up, from the moment of
+his birth, in opposition to the transmission to him of any ownership,
+which, in violation of natural law, has been asserted to the parent.</p>
+
+<p>Natural law may be overborne by arbitrary institutions; but she will
+never aid, or perpetuate them. For her to do so, would be to resist, and
+even deny her own authority. It would present the case of a principle
+warring against and overcoming itself. Instead of this, she asserts her
+own authority on the first opportunity. The moment the arbitrary law
+expires by its own limitation, natural law resumes her reign. If,
+therefore, the government declare A to be a slave, natural law may be
+practically overborne by this arbitrary authority; but she will not
+herself perpetuate it beyond the person of A&mdash;for that would be acting
+in contradiction to herself.&mdash;She will therefore suffer this arbitrary
+authority to expend itself on the person of A, according to the <i>letter</i>
+of the arbitrary law; but she will assert her own authority in favor of
+the child of A, to whom the letter of the law enslaving A, does not
+apply.</p>
+
+<p>Slavery is a wrong to each individual enslaved; and not merely to the
+first of a series. Natural law, therefore, as much forbids the enslaving
+of the child, as if the wrong of enslaving the parent had never been
+perpetrated.</p>
+
+<p>Slavery, then, is an arbitrary institution throughout. It depends, from
+first to last, upon the letter of the arbitrary law. Natural law gives
+it no aid, no extension, no new application, under any circumstances
+whatever. Unless, therefore, the letter of the arbitrary law explicitly
+authorize the enslavement of the child, the child is born free, though
+the parent were a slave.</p>
+
+<p>If the views that have already been taken of our written constitutions,
+be correct, no parent has ever yet been legally enslaved in this
+country; and of course no child. If, however, any one thinks he can
+place his finger upon any <i>constitutional</i> law, that has enslaved a
+parent, let him follow that law, and see whether it also expressly
+authorized the enslavement of the child. If it did not, then the child
+would be free.</p>
+
+<p>It is no new principle that the child of a slave would be born free, but
+for an express law to the contrary. Some of the slave codes admit the
+principle&mdash;for they have special provisions that the child shall follow
+the condition of the mother; thus virtually admitting that, but for such
+a provision, the child would be free, though the mother were a slave.</p>
+
+<p>Under the constitutions of the states and the United States, it requires
+as explicit and plenary <i>constitutional</i> authority, to make slaves of
+the children of slaves, as it would to make slaves of any body else. Is
+there, in any of the constitutions of this country, any general
+authority given to the governments, to make slaves of whom they please?
+No one will pretend it. Is there, then, any particular authority for
+making slaves of the children of those, who have previously been held in
+slavery? If there be, let the advocates of slavery point it out. If
+there be no such authority, all their statutes declaring that the
+children of slaves shall follow the condition of their mothers, are
+void; and those children are free by force of the law of nature.</p>
+
+<p>This law of nature, that all men are born free, was recognized by this
+country in the Declaration of Independence.&mdash;But it was no new principle
+then. Justinian says, "Captivity and servitude are both contrary to the
+law of nature; for by that law all men are born free." But the principle
+was not new with Justinian; it exists in the nature of man, and is as
+old as man&mdash;and the race of man generally has acknowledged it. The
+exceptions have been special; the rule general.</p>
+
+<p>The constitution of the United States recognizes the principle that all
+men are born free; for it recognizes the principle that natural birth in
+the country gives citizenship<a name="FNanchor_31_31" id="FNanchor_31_31"></a><a href="#Footnote_31_31" class="fnanchor">[31]</a>&mdash;which of course implies freedom. And
+no exception is made to the rule. Of course all born in the country
+since the adoption of the constitution of the United States, have been
+born free, whether there were, or were not any legal slaves in the
+country before that time.</p>
+
+<p>Even the provisions, in the several state constitutions, that the
+legislatures shall not <i>emancipate</i> slaves, would, if allowed their full
+effect, unrestrained by the constitution of the United States, hold in
+slavery only those who were then slaves; it would do nothing towards
+enslaving their children, and would give the legislatures no authority
+to enslave them.</p>
+
+<p>It is clear, therefore, that, on this principle alone, slavery would now
+be extinct in this country, unless there should be an exception of a few
+aged persons.</p>
+
+<div class="footnote"><p><a name="Footnote_31_31" id="Footnote_31_31"></a><a href="#FNanchor_31_31"><span class="label">[31]</span></a> Art. 2, Sec. 1, Clause 5, "No person, except a <i>natural
+born</i> citizen,* * * * shall be eligible to the office of President."</p></div>
+
+
+
+
+
+
+
+
+<pre>
+
+
+
+
+
+End of the Project Gutenberg EBook of The Unconstitutionality of Slavery, by 
+Lysander Spooner
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+Project Gutenberg's The Unconstitutionality of Slavery, by Lysander Spooner
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: The Unconstitutionality of Slavery
+
+Author: Lysander Spooner
+
+Release Date: March 31, 2010 [EBook #31844]
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK THE UNCONSTITUTIONALITY OF SLAVERY ***
+
+
+
+
+Produced by Curtis Weyant, Graeme Mackreth and the Online
+Distributed Proofreading Team at https://www.pgdp.net (This
+book was produced from scanned images of public domain
+material from the Google Print project.)
+
+
+
+
+
+
+
+THE
+
+UNCONSTITUTIONALITY
+
+OF
+
+SLAVERY.
+
+BY LYSANDER SPOONER.
+
+BOSTON:
+
+PUBLISHED BY BELA MARSH,
+
+NO. 25 CORNHILL.
+
+1845.
+
+
+ENTERED according to Act of Congress, in the year 1845, by LYSANDER
+SPOONER, in the Clerk's Office of the District Court of Massachusetts.
+
+
+DOW & JACKSON'S ANTI-SLAVERY PRESS.
+
+
+
+
+CONTENTS.
+
+
+CHAPTER I.--WHAT IS LAW?                              PAGE 5
+
+   "   II.--WRITTEN CONSTITUTIONS,                        18
+
+   "  III.--THE COLONIAL CHARTERS,                        24
+
+   "   IV.--COLONIAL STATUTES,                            36
+
+   "    V.--THE DECLARATION OF INDEPENDENCE,              42
+
+   "   VI.--THE STATE CONSTITUTIONS OF 1789.
+              (MEANING OF THE WORD "FREE,")               46
+
+   "  VII.--THE ARTICLES OF CONFEDERATION,                61
+
+   " VIII.--THE CONSTITUTION OF THE UNITED STATES,        65
+
+   "   IX.--THE INTENTIONS OF THE CONVENTION,            135
+
+   "    X.--THE PRACTICE OF THE GOVERNMENT,              145
+
+   "   XI.--THE UNDERSTANDING OF THE PEOPLE,             147
+
+   "  XII.--THE STATE CONSTITUTIONS OF 1845,             150
+
+   " XIII.--THE CHILDREN OF SLAVES ARE BORN FREE,        153
+
+
+
+
+THE
+UNCONSTITUTIONALITY OF SLAVERY.
+
+
+
+
+CHAPTER I.
+
+WHAT IS LAW?
+
+
+Before examining the language of the Constitution, in regard to Slavery,
+let us obtain a view of the principles, by virtue of which _law_ arises
+out of those constitutions and compacts, by which people agree to
+establish government.
+
+To do this it is necessary to define the term _law_. Popular opinions
+are very loose and indefinite, both as to the true 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 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 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 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 any body 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.[1]
+
+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 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 established 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 any thing, 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 authorize, (if any of them do authorize,) any
+thing in violation of natural justice, or the natural 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 every where 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
+obedience, 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 any thing, 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.
+
+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 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
+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, 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, 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, can arise
+out of any contract or compact 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_; 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.
+
+Though this doctrine may make sad havoc with constitutions and statute
+books, it is nevertheless law. It fixes and determines the real rights
+of all men; and its demands are as imperious as any that can exist under
+the name of law.
+
+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.[2]
+
+[Footnote 1: 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.]
+
+[Footnote 2: 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 every where, 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._
+
+"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._
+
+"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 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 naturae 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 reason why Blackstone admitted
+that he knew of no power in the ordinary forms of the (British)
+constitution, that was vested with authority to control an act of
+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 State's 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. 1, 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, 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. 1, 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 laws
+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
+discernment to 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._
+
+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; 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 particular cases; and the
+guardian principle being once broken down, nothing can then stay the
+irruption of the whole horde of pretexts for doing injustice; and
+government 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 his rights
+in order that government may protect the remainder. Let a man have the
+use of both 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 bargain 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 every thing, 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 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
+develope 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 developement
+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.]
+
+
+
+
+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 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 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 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
+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."[3]
+
+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.
+
+[Footnote 3: United States _vs._ Fisher, 2 Cranch, 390.]
+
+
+
+
+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 prevailed 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."[4]
+
+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 state 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.[5]
+
+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 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.
+
+This decision was given in the year 1772.[6] And for aught I see, it 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.
+
+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-trade_ at 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 any where; 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 any where 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 any where, if they had attempted to do
+so.[7] 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
+that coast of Africa_, to allow slavery under 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 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 decision 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.[8]
+
+The conclusion of the whole matter is, that until some reason appears
+against them, we are bound by the decision of the King's bench in 1772,
+and the colonial charters. That decision declared that there was, at
+that time, in England, no right of property in man, (notwithstanding
+the English government had for a long time connived at the slave
+trade.)--The colonial charters required the legislation of the colonies
+to be consonant to reason, and not repugnant or contrary, but
+conformable, or agreeable, as nearly as circumstances would allow, to
+the laws, statutes and rights of the realm of England. That decision,
+then, if correct, settled the 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.
+
+[Footnote 4: 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."
+
+The charter granted to Sir Edward Plowden had this proviso. "So,
+nevertheless, that the laws aforesaid be 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,
+ordain 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.]
+
+[Footnote 5: In the case of the town of Pawlet _v._ Clark and others,
+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 and privileges._ _A fortiori_ the principle applies
+to a royal province."--(9 Cranch's U. State's Reports, 332-3.)]
+
+[Footnote 6: 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.]
+
+[Footnote 7: 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?]
+
+[Footnote 8: Mr. Bancroft, 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 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
+"1795, 8 and 10 Wm. 3, ch. 26." (Should be 1797, 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 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 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 emigrants, 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 necessary
+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 render 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 perfectly
+clear, as a _legal_ proposition, that the statute legalized neither
+slavery in the plantations and colonies, nor the slave trade from Africa
+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. &.,
+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 be lawful to and for any of the
+subjects of his majesty's realms of England, as well as the said
+Company,(The Royal African Company) to trade from England or any of his
+majesty's plantations or colonies 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 merchandizes to be exported from
+England or any of his majesty's plantations 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, redwood 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 deputy-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,(The Royal African 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 be 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 in reality it did not legalize,) the
+slave trade during those thirteen years, it would be impossible now to
+distinguish the descendants 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 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. Bancroft 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 enterprize was removed,
+and the ports of Africa were laid open to English competition, for 'the
+_slave_ trade,'--such" (says Mr. Bancroft,) "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. Bancroft
+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 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 any thing
+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 20th 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 29th section contains a special
+prohibition to individuals, under penalty, to do so, no one can pretend
+that the trade was legalized. If the penalty had been but one pound,
+instead of one hundred pounds, it would have been sufficient, _in law_,
+to have 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 it
+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
+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 28th 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 any where, except upon the coast of Africa.
+Had slavery been positively and 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 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.]
+
+
+
+
+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 was the doctrine of the King's Bench in
+Somerset's case, as it is the doctrine of common sense. Lord Mansfield
+said, "So high an act of dominion must be recognized by the law of the
+country where it is used.* * * * The state of slavery is of such a
+nature, that it is incapable of being introduced on any reasons, moral
+or political--but only positive law, which preserves its force long
+after the reasons, 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.
+
+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 baptise their slaves,[9]
+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 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."[10]
+
+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.[11]
+
+In 1776, the only statute in Virginia, under which the slaveholders
+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.[12]
+
+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 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 in 1740--after slavery had
+for a long time existed. And even this statute, in reality, defined
+nothing; for the whole 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.[13]
+
+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.
+
+[Footnote 9: "_Chastised._" 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._
+
+"_Baptised._" 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
+baptised. But that notwithstanding such slave or slaves shall receive
+and profess the Christian religion, and be baptised, he or they shall
+not thereby be manumitted or set free, or his or their owner, master or
+mistress lose his or their civil right, property and authority over such
+slave or slaves, but that the slave or slaves, with respect to his or
+their servitude, shall remain and continue in the same state and
+condition, that he or they was in before the making of this
+act."--_Grimke, p. 18. Brevard, vol. 2, p. 229._
+
+In 1667, the following statute was passed in Virginia:
+
+"Whereas, some doubts have arisen whether children that are slaves by
+birth, and by the charity and piety of their owners made 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 confering 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 endeavor 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._]
+
+[Footnote 10: Hening, vol. 2, p. 283.]
+
+[Footnote 11: Hening, vol. 5, p. 547-8.]
+
+[Footnote 12: 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 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."]
+
+[Footnote 13: 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 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 vigor 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 born or
+to be born, shall be and they are hereby declared to be and remain
+forever hereafter absolute slaves, and shall follow the condition of the
+mother," &c.--_Grimke, p. 163-4. Brevard, vol. 2, p. 229._]
+
+
+
+
+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 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 only for 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.
+
+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, and 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 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
+re-asserted the same truth in nearly every state constitution since
+adopted. We have virtually re-asserted 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 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.[14]
+
+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
+any body 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
+_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.
+
+2. 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 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
+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; 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,) that the
+electors of that state should be "_free_ white men." That of Georgia
+(Art. 11,) and that of North Carolina (Art. 40,) use the term "free
+citizen." That of Pennsylvania (Sec. 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
+making 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 any
+thing 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 are these:
+
+"_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 Jacob's Law Dictionary the following definitions, among others, are
+given of the word "freemen."
+
+"_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 _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
+Victoria, 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 settlement,
+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.[15]
+
+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,"
+"freeman 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_, 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, any thing 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."[16]
+
+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 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 have 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 year's residence."
+
+The constitution of New York, (adopted in 1777,) uses the word in the
+same manner:
+
+   "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 assembly,
+   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 clearly 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 to 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 remained in
+force until 1784, when it was repealed by an act entitled "_An act to
+confer the right of citizenship on aliens_"[17]
+
+One more example of this use of the word "_freeman_." The constitution
+of Connecticut, adopted as late as 1818, has 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.
+
+[Footnote 14: 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.]
+
+[Footnote 15: 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.]
+
+[Footnote 16: Dallas's edition of the Laws of Pennsylvania, vol. 1,
+Appendix, page 25.]
+
+[Footnote 17: Cooper's edition of the Laws of South Carolina, vols. 2
+and 4. "Aliens,"]
+
+
+
+
+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
+any body 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 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
+entitle 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 other state. In one state,
+   residence for a short time confers all the rights of citizenship; in
+   another, qualifications of greater importance are required. An alien,
+   therefore, legally incapacitated for certain rights in the latter,
+   may, by previous residence only in the former, elude his incapacity,
+   and thus the law of one state be preposterously rendered paramount to
+   the laws of another, within the jurisdiction of the other.
+
+   "We owe it to mere casualty, that very serious embarrassments on this
+   subject have been hitherto escaped. By the laws of several states,
+   certain description of aliens, who had rendered themselves obnoxious,
+   were laid under interdicts inconsistent, not only with the rights of
+   citizenship, but with the privileges of residence. What would have
+   been the consequence, if such persons, by residence, or otherwise,
+   had acquired the character of citizens under the laws of another
+   state, and then asserted their rights as such, both to residence and
+   citizenship, within the state proscribing them? Whatever the legal
+   consequences might have been, other consequences would probably have
+   resulted of too serious a nature, not to be provided against. The new
+   constitution has accordingly, with great propriety, made provision
+   against them, and all others proceeding from the defect of the
+   confederation on this head, by authorizing the general government to
+   establish an uniform rule of naturalization throughout the United
+   States."
+
+Throughout this whole quotation Mr. Madison obviously takes it for
+granted that the word "free" is used in the articles of confederation,
+as the correlative of aliens.--And in this respect he no doubt correctly
+represents the meaning then given to the word by the people of the
+United States. And in the closing sentence of the quotation, he
+virtually asserts that such is the meaning of the word "free" in "the
+new constitution."
+
+
+
+
+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 governments. And the question now is,
+whether it was constitutionally established, authorized or sanctioned by
+the constitution of the United States?
+
+It is perfectly clear, in the first place, that the constitution of the
+United States did not, _of itself, create or establish_ slavery as a
+_new_ institution; or even give any authority to the state governments
+to establish it as a new institution.--The greatest sticklers for
+slavery do not claim this. The most they claim is, that it recognized it
+as an institution already legally existing, under the authority of the
+state governments; and that it virtually guarantied to the states the
+right of continuing it in existence during their pleasure. And this is
+really the only question arising out of the constitution of the United
+States on this subject, viz: whether it _did_ thus recognize and
+sanction slavery as an _existing_ institution?
+
+This question is, in reality, answered in the negative by what has
+already been shown; for if slavery had no constitutional existence,
+under the state constitutions, prior to the adoption of the constitution
+of the United States, then it is absolutely certain that the
+constitution of the United States did _not_ recognize it as a
+constitutional institution; for it cannot, of course, be pretended that
+the United States constitution recognized, as constitutional, any state
+institution that did not constitutionally exist.
+
+Even if the constitution of the United States had _intended_ to
+recognize slavery, as a constitutional _state_ institution, such
+intended recognition would have failed of effect, and been legally void,
+because slavery then had no constitutional existence to be recognized.
+
+Suppose, for an illustration of this principle, that the constitution of
+the United States had, by implication, plainly taken it for granted that
+the state legislatures had power--derived from the _state_
+constitutions--to order arbitrarily that infant children, or that men
+without the charge of crime, should be maimed--deprived, for instance,
+of a hand, a foot, or an eye. This intended recognition, on the part of
+the constitution of the United States, of the legality of such a
+practice, would obviously have failed of all legal effect--would have
+been mere surplussage--if it should appear, from an examination of the
+state constitutions themselves, that they had really conferred no such
+power upon the legislatures. And this principle applies with the same
+force to laws that would arbitrarily make men or children slaves, as to
+laws that should arbitrarily order them to be maimed or murdered.
+
+We might here safely rest the whole question--for no one, as has already
+been said, pretends that the constitution of the United States, by its
+own authority, created or authorized slavery as a new institution; but
+only that it intended to recognize it as one already established by
+authority of the state constitutions. This intended recognition--if
+there were any such--being founded on an error as to what the state
+constitutions really did authorize, necessarily falls to the ground, a
+defunct intention.
+
+We make a stand, then, at this point, and insist that the main
+question--the only material question--is already decided against
+slavery; and that it is of no consequence what recognition or sanction
+the constitution of the United States may have intended to extend to it.
+
+The constitution of the United States, at its adoption, certainly took
+effect upon, and made citizens of _all_ "the people of the United
+States," who were _not slaves_ under the state constitutions. No one can
+deny a proposition so self-evident as that. If, then, the _State_
+constitutions, then existing, authorized no slavery at all, the
+constitution of the United States took effect upon, and made citizens of
+_all_ "the people of the United States," without discrimination. And if
+_all_ "the people of the United States" were made citizens of the United
+States, by the United States constitution, at its adoption, it was then
+forever too late for the _state_ governments to reduce any of them to
+slavery. They were thenceforth citizens of a higher government, under a
+constitution that was "the supreme law of the land," "any thing in the
+constitution or laws of the states to the contrary notwithstanding." If
+the state governments could enslave citizens of the United States, the
+state constitutions, and not the constitution of the United States,
+would be the "supreme law of the land"--for no higher act of supremacy
+could be exercised by one government over another, than that of taking
+the citizens of the latter out of the protection of their government,
+and reducing them to slavery.
+
+
+SECONDLY.
+
+Although we might stop--we yet do not choose to stop--at the point last
+suggested. We will now go further, and attempt to show, specifically
+from its provisions, that the constitution of the United States, not
+only does not recognize or sanction slavery, as a legal institution, but
+that, on the contrary, it presumes all men to be free; that it
+positively denies the right of property in man; and that it, _of
+itself_, makes it impossible for slavery to have a legal existence in
+any of the United States.
+
+In the first place--although the assertion is constantly made, and
+rarely denied, yet it is palpably a mere begging of the whole question
+in favor of slavery, to say that the constitution _intended_ to sanction
+it; for if it _intended_ to sanction it, it _did_ thereby necessarily
+sanction it, (that is, if slavery then had any constitutional existence
+to be sanctioned.) The _intentions_ of the constitution are the only
+means whereby it sanctions any thing. And its intentions necessarily
+sanction everything to which they apply, and which, in the nature of
+things, they are competent to sanction. To say, therefore, that the
+constitution _intended_ to sanction slavery, is the same as to say that
+it _did_ sanction it; which is begging the whole question, and
+substituting mere assertion for proof.
+
+Why, then, do not men say distinctly, that the constitution _did_
+sanction slavery, instead of saying that it _intended_ to sanction it?
+We are not accustomed to use the word "_intention_," when speaking of
+the other grants and sanctions of the constitution. We do not say, for
+example, that the constitution _intended_ to authorize congress "to coin
+money," but that it _did_ authorize them to coin it. Nor do we say that
+it intended to authorize them "to declare war;" but that it did
+authorize them to declare it. It would be silly and childish to say
+merely that it _intended_ to authorize them "to coin money," and "to
+declare war," when the language authorizing them to do so, is full,
+explicit and positive. Why, then, in the case of slavery, do men say
+merely that the constitution _intended_ to sanction it, instead of
+saying distinctly, as we do in the other cases, that it _did_ sanction
+it? The reason is obvious. If they were to say unequivocally that it
+_did_ sanction it, they would lay themselves under the necessity of
+pointing to the _words_ that sanction it; and they are aware that the
+_words alone_ of the constitution do not come up to that point. They,
+therefore, assert simply that the constitution _intended_ to sanction
+it; and they then attempt to support the assertion by quoting certain
+words and phrases, which they say are _capable_ of covering, or rather
+of concealing such an intention; and then by the aid of exterior,
+circumstantial and historical evidence, they attempt to enforce upon the
+mind the conclusion that, as matter of fact, such was the intention of
+those who _drafted_ the constitution; and thence they finally infer that
+such was the intention of the constitution itself.
+
+The error and fraud of this whole procedure--and it is one purely of
+error and fraud--consists in this--that it artfully substitutes the
+supposed intentions of those who drafted the constitution, for the
+intentions of the constitution itself; and, secondly, it personifies the
+constitution as a crafty individual; capable of both open and secret
+intentions; capable of legally participating in, and giving effect to
+all the subtleties and double dealing of knavish men; and as actually
+intending to secure slavery, while openly professing to "secure and
+establish liberty and justice." It personifies the constitution as an
+individual capable of having private and criminal intentions, which it
+dare not distinctly avow, but only darkly hint at, by the use of words
+of an indefinite, uncertain and double meaning, whose application is to
+be gathered from external circumstances.
+
+The falsehood of all these imaginings is apparent, the moment it is
+considered that the constitution is not a _person_, of whom an
+"intention," not legally expressed, can be asserted; that it has none of
+the various and selfish passions and motives of action, which sometimes
+prompt _men_ to the practice of duplicity and disguise; that it is
+merely a written legal instrument; that, as such, it must have a fixed,
+and not a double meaning; that it is made up entirely of intelligible
+words; and that it has, and _can_ have, no soul, no "_intentions_," no
+motives, no being, no personality, except what those words alone express
+or imply. Its "intentions" are nothing more nor less than the legal
+meaning of its words. Its intentions are no guide to its legal
+meaning--as the advocates of slavery all assume; but its legal meaning
+is the sole guide to its intentions. This distinction is all important
+to be observed; for if we can gratuitously assume the intentions of a
+legal instrument to be what we may wish them to be, and can then strain
+or pervert the ordinary meaning of its words, in order to make them
+utter those intentions, we can make any thing we choose of any legal
+instrument whatever. The legal meaning of the words of an instrument is,
+therefore, necessarily our only guide to its intentions.
+
+In ascertaining the legal meaning of the words of the constitution,
+these rules of law, (the reasons of which will be more fully explained
+hereafter,) are vital to be borne constantly in mind, viz: 1st, that no
+intention in violation of natural justice and natural right, (like that
+to sanction slavery,) can be ascribed to the constitution, unless that
+intention be expressed in terms that are _legally competent_ to express
+such an intention; and, 2d, that no terms, except those that are
+plenary, express, explicit, distinct, unequivocal, _and to which no
+other meaning can be given, are legally competent_ to authorize or
+sanction any thing contrary to natural right. The rule of law is
+materially different as to the terms necessary to legalize and sanction
+any thing contrary to natural right, and those necessary to legalize
+things that are consistent with natural right. The latter may be
+sanctioned by implication and inference; the former only by inevitable
+implication, or by language that is full, definite, express, explicit,
+unequivocal, and whose _unavoidable_ import is to sanction the _specific
+wrong_ intended.
+
+To assert, therefore, that the constitution _intended_ to sanction
+slavery, is, in reality, equivalent to asserting that the _necessary_
+meaning, the _unavoidable_ import of the _words alone_ of the
+constitution, come fully up to the point of a clear, definite, distinct,
+express, explicit, unequivocal, necessary and peremptory sanction of the
+specific thing, _human slavery, property in man_. If the _necessary_
+import of its _words alone_ do but fall an iota short of this point, the
+instrument gives, and, legally speaking, intended to give no legal
+sanction to slavery. Now, who can, in good faith, say that the _words
+alone_ of the constitution come up to this point? No one, who knows any
+thing of law, and the meaning of words. Not even the name of the thing,
+alleged to be sanctioned, is given. The constitution itself contains no
+designation, description, or necessary admission of the existence of
+such a thing as slavery, servitude, or the right of property in man. We
+are obliged to go out of the instrument, and grope among the records of
+oppression, lawlessness and crime--records unmentioned, and of course
+unsanctioned by the constitution--to _find_ the thing, to which it is
+said that the words of the constitution apply. And when we have found
+this thing, which the constitution dare not name, we find that the
+constitution has sanctioned it, (if at all,) only by enigmatical words,
+by unnecessary implication and inference, by inuendo and double
+entendre, and under a name that entirely fails of describing the thing.
+Every body must admit that the constitution itself contains no language,
+from which _alone_ any court, that were either strangers to the prior
+existence of slavery, or that did not assume its prior existence to be
+legal, could legally decide that the constitution sanctioned it. And
+this is the true test for determining whether the constitution does, or
+does not, sanction slavery, viz: whether a court of law, strangers to
+the prior existence of slavery, or not assuming its prior existence to
+be legal--looking only at the naked language of the instrument--could,
+consistently with legal rules, judicially determine that it sanctioned
+slavery. Every lawyer, who at all deserves that name, knows that the
+claim for slavery could stand no such test. The fact is palpable, that
+the constitution contains no such legal sanction; that it is only by
+unnecessary implication and inference, by inuendo and double-entendre,
+by the aid of exterior evidence, the assumption of the prior legality of
+slavery, and the gratuitous imputation of criminal intentions that are
+not avowed in legal terms, that any sanction of slavery, (as a legal
+institution,) can be extorted from it.
+
+But legal rules of interpretation entirely forbid and disallow all such
+implications, inferences, inuendos and double-entendre, all aid of
+exterior evidence, all assumptions of the prior legality of slavery, and
+all gratuitous imputations of criminal unexpressed intentions; and
+consequently compel us to come back to the _letter_ of the instrument,
+and find _there_ a distinct, clear, necessary, peremptory sanction for
+slavery, or to surrender the point.
+
+To the unprofessional reader these rules of interpretation will appear
+stringent, and perhaps unreasonable and unsound. For his benefit,
+therefore, the reasons on which they are founded, will be given. And he
+is requested to fix both the reasons and the rules fully in his mind,
+inasmuch as the whole legal meaning of the constitution, in regard to
+slavery, may perhaps be found to turn upon the construction which these
+rules fix upon its language.
+
+But before giving the reasons of this rule, let us offer a few remarks
+in regard to _legal_ rules of interpretation in general. Many persons
+appear to have the idea that these rules have no foundation in reason,
+justice or necessity; that they are little else than whimsical and
+absurd conceits, arbitrarily adopted by the courts. No idea can be more
+erroneous than this. The rules are absolutely indispensable to the
+administration of the justice arising out of any class of legal
+instruments whatever--whether the instruments be simple contracts
+between man and man, or statutes enacted by legislatures, or fundamental
+compacts or constitutions of government agreed upon by the people at
+large. In regard to all these instruments, the _law_ fixes, and
+necessarily must fix their meaning; and for the obvious reason, that
+otherwise their meaning could not be fixed at all. The parties to the
+simplest contract may disagree, or pretend to disagree, as to its
+meaning, and of course as to their respective rights under it. The
+different members of a legislative body, who vote for a particular
+statute, may have different intentions in voting for it, and may
+therefore differ, or pretend to differ, as to its meaning. The people
+of a nation may establish a compact of government. The motives of one
+portion may be to establish liberty, equality and justice; and they may
+think, or pretend to think that the words used in the instrument convey
+that idea. The motives of another portion may be to establish the
+slavery or subordination of one part of the people, and the superiority
+or arbitrary power of the other part; and they may think, or pretend to
+think, that the language agreed upon by the whole authorizes such a
+government. In all these cases, unless there were some rules of law,
+applicable alike to all instruments, and competent to settle their
+meaning, their meaning could not be settled; and individuals would of
+necessity lose their rights under them. _The law, therefore, fixes their
+meaning_; and the rules by which it does so, are founded in the same
+justice, reason, necessity and truth, as are other legal principles, and
+are for that reason as inflexible as any other legal principles
+whatever. They are also simple, intelligible, natural, obvious. Every
+body are presumed to know them, as they are presumed to know any other
+legal principles. No one is allowed to plead ignorance of them, any more
+than of any other principle of law. All persons and people are presumed
+to have framed their contracts, statutes and constitutions with
+reference to them. And if they have not done so--if they have said black
+when they meant white, and one thing when they meant another, they must
+abide the consequences. The law will presume that they meant what they
+said. No one, in a court of justice, can claim any rights founded on a
+construction different from that which these rules would give to the
+contract, statute, or constitution, under which he claims. The judiciary
+cannot depart from these rules, for two reasons. First, because the
+rules embody in themselves principles of justice, reason and truth; and
+are therefore as necessarily law as any other principles of justice,
+reason and truth; and, secondly, because if they could lawfully depart
+from them in one case, they might in another, at their own caprice.
+Courts could thus at pleasure become despotic; all certainty as to the
+legal meaning of instruments would be destroyed; and the administration
+of justice, according to the true meaning of contracts, statutes and
+constitutions, would be rendered impossible.
+
+What, then, are some of these rules of interpretation?
+
+One of them, (as has been before stated,) is, that where words are
+susceptible of two meanings, one consistent, and the other inconsistent,
+with justice and natural right, that meaning, and _only that_ meaning,
+which is consistent with right, shall be attributed to them--unless
+other parts of the instrument overrule that interpretation.
+
+Another rule, (if indeed it be not the same,) is, that no language,
+except that which is peremptory, and no implication, except one that is
+inevitable, shall be held to authorize or sanction any thing contrary to
+natural right.
+
+Another rule is, that no _extraneous or historical evidence_ shall be
+admitted to fix upon a statute an unjust or immoral meaning, when the
+words themselves of the act are susceptible of an innocent one.
+
+One of the reasons of these stringent and inflexible rules, doubtless
+is, that judges have always known that, in point of fact, natural
+justice was itself law, and that nothing inconsistent with it could be
+made law, even by the most explicit and peremptory language that
+legislatures could employ.--But judges have always, in this country and
+in England, been dependent upon the executive and the legislature for
+their appointments and salaries, and been amenable to the legislature by
+impeachment. And as the executive and legislature have always enacted
+more or less statutes, and had more or less purposes to accomplish, that
+were inconsistent with natural right, judges have seen that it would be
+impossible for them to retain their offices, and at the same time
+maintain the integrity of the law against the will of those in whose
+power they were. It is natural also that the executive should appoint,
+and that the legislature should approve the appointment of no one for
+the office of judge, whose integrity they should suppose would stand in
+the way of their purposes.--The consequence has been that all judges,
+(probably without exception,) though they have not dared deny, have yet
+in practice yielded the vital principle of law; and have succumbed to
+the arbitrary mandates of the other departments of the government, so
+far as to carry out their enactments, though inconsistent with natural
+right. But, as if sensible of the degradation and criminality of so
+doing, they have made a stand at the first point at which they could
+make it, without bringing themselves in a direct collision with those on
+whom they were dependent. And that point is, that they will administer,
+as law, no statute, that is contrary to natural right, unless its
+language be so explicit and peremptory, that there is no way of evading
+its authority, but by flatly denying the authority of those who enacted
+it. They (the court) will themselves add nothing to the language of the
+statute, to help out its supposed meaning. They will imply nothing,
+infer nothing, and assume nothing, except what is inevitable; they will
+not go out of the letter of the statute in search of any _historical_
+evidence as to the meaning of the legislature, to enable them to
+effectuate any _unjust_ intentions not fully expressed by the statute
+itself. Wherever a statute is supposed to have in view the
+accomplishment of any unjust end, they will apply the most stringent
+principles of construction to prevent that object's being effected. They
+will not go a hair's breadth beyond the literal or inevitable import _of
+the words_ of the statute, even though they should be conscious, all the
+while, that the real intentions of the makers of it would be entirely
+defeated by their refusal. The rule, (as has been already stated,) is
+laid down by the supreme court of the United States in these words:
+
+"Where rights are infringed, where fundamental principles are
+overthrown, where the general system of the law is departed from, the
+legislative intention must be expressed with _irresistible clearness_,
+to induce a court of justice to suppose a design to effect such
+objects."--(_United States_ vs. _Fisher et al., 2 Cranch_, 390.)[18]
+
+Such has become the settled doctrine of courts. And although it does not
+come up to the true standard of law, yet it is good in itself, so far as
+it goes, and ought to be unflinchingly adhered to, not merely for its
+own sake, but also as a scaffolding, from which to erect that higher
+standard of law, to wit, that no language or authority whatever can
+legalize any thing inconsistent with natural justice.[19]
+
+Another reason for the rules before given, against all constructions,
+implications and inferences--except inevitable ones--in favor of
+injustice, is, that but for them we should have no guaranty that our
+honest contracts, or honest laws would be honestly administered by the
+judiciary. It would be nearly or quite impossible for men, in framing
+their contracts or laws, to use language so as to exclude every possible
+implication in favor of wrong, if courts were allowed to resort to such
+implications. _The law therefore excludes them_; that is, the ends of
+justice--the security of men's rights under their honest contracts, and
+under honest legislative enactments--make it imperative upon courts of
+justice to ascribe an innocent and honest meaning to all language that
+will possibly bear an innocent and honest meaning. If courts of justice
+could depart from this rule for the purpose of upholding what was
+contrary to natural right, and could employ their ingenuity in spying
+out some implied or inferred authority, for sanctioning what was in
+itself dishonest or unjust, when such was not the _necessary_ meaning of
+the language used, there could be no security whatever for the honest
+administration of honest laws, or the honest fulfilment of men's honest
+contracts. Nearly all language, on the meaning of which courts
+adjudicate, would be liable, at the caprice of the court, to be
+perverted from the furtherance of honest, to the support of dishonest
+purposes. Judges could construe statutes and contracts in favor of
+justice or injustice, as their own pleasure might dictate.
+
+Another reason of the rules, is, that as governments have, and can have
+no legitimate objects or powers opposed to justice and natural right, it
+would be treason to all the legitimate purposes of government, for the
+judiciary to give any other than an honest and innocent meaning to any
+language, that would bear such a construction.
+
+The same reasons that forbid the allowance of any unnecessary
+implication or inference in favor of a wrong, in the construction of a
+statute, forbids also the introduction of any _extraneous or historical_
+evidence to prove that the intentions of the legislature were to
+sanction or authorize a wrong.
+
+The same rules of construction, that apply to statutes, apply also to
+all those private contracts between man and man, _which courts actually
+enforce_. But as it is both the right and the duty of courts to
+invalidate altogether such private contracts as are inconsistent with
+justice, they will admit evidence exterior to their words, _if offered
+by a defendant for the purpose of invalidating them_. At the same time,
+a plaintiff, or party that wishes to set up a contract, or that claims
+its fulfilment, will not be allowed to offer any evidence exterior to
+its words, to prove that the contract is contrary to justice--because,
+if his evidence were admitted, it would not make his unjust claim a
+legal one; but only invalidate it altogether. But as courts do not claim
+the right of invalidating statutes and constitutions, they will not
+admit evidence, exterior to their language, to give them such a
+meaning, that they ought to be invalidated.
+
+I think no one--no lawyer, certainly--will now deny that it is a legal
+rule of interpretation--that must be applied to all statutes, and also
+to all private contracts _that are to be enforced_--that an innocent
+meaning, _and nothing beyond an innocent meaning_, must be given to all
+language that will possibly bear such a meaning. All will probably admit
+that the rule, as laid down by the supreme court of the United States,
+is correct, to wit, that "where rights are infringed, where fundamental
+principles are overthrown, where the general system of the law is
+departed from, the legislative intention must be expressed with
+_irresistible clearness_, to induce a court of justice to suppose a
+design to effect such objects."
+
+But perhaps it will be said that these rules, which apply to all
+statutes, and to all private contracts that are to be enforced, do not
+apply to the constitution. And why do they not? No reason whatever can
+be given. A constitution is nothing but a contract, entered into by the
+mass of the people, instead of a few individuals. This contract of the
+people at large becomes a law unto the judiciary that administer it,
+just as private contracts, (so far as they are consistent with natural
+right,) are laws unto the tribunals that adjudicate upon them. All the
+essential principles that enter into the question of obligation, in the
+case of a private contract, or a legislative enactment, enter equally
+into the question of the obligation of a contract agreed to by the whole
+mass of the people. This is too self-evident to need illustration.
+
+Besides, is it not as important to the safety and rights of all
+interested, that a constitution or compact of government, established by
+a whole people, should be so construed as to promote the ends of
+justice, as it is that a private contract or a legislative enactment
+should be thus construed? Is it not as necessary that some check should
+be imposed upon the judiciary to prevent them from perverting, at
+pleasure, the whole purpose and character of the government, as it is
+that they should be restrained from perverting the meaning of a private
+contract, or a legislative enactment? Obviously written compacts of
+government could not be upheld for a day, if it were understood by the
+mass of the people that the judiciary were at liberty to interpret them
+according to their own pleasure, instead of their being restrained by
+such rules as have now been laid down.
+
+Let us now look at some of the provisions of the constitution, and see
+what crimes might be held to be authorized by them, if their meaning
+were not to be ascertained and restricted by such rules of
+interpretation as apply to all other legal instruments.
+
+The second amendment to the constitution declares that "the right of the
+people to keep and bear arms shall not be infringed."
+
+This right "to keep and bear arms," implies the right to use them--as
+much as a provision securing to the people the right to buy and keep
+food, would imply their right also to eat it. But this implied right to
+use arms, is only a right to use them in a manner consistent with
+natural rights--as, for example, in defence of life, liberty, chastity,
+&c. Here is an innocent and just meaning, of which the words are
+susceptible; and such is therefore the _extent_ of their legal meaning.
+If courts could go beyond the innocent and necessary meaning of the
+words, and imply or infer from them an authority for anything contrary
+to natural right, they could imply a constitutional authority in the
+people to use arms, not merely for the just and innocent purposes of
+defence, but also for the criminal purposes of aggression--for purposes
+of murder, robbery, or any other acts of wrong to which arms are capable
+of being applied. The mere _verbal_ implication would as much authorize
+the people to use arms for unjust, as for just, purposes. But the
+_legal_ implication gives only an authority for their innocent use. And
+why? Simply because justice is the end of all law--the legitimate end of
+all compacts of government. It is itself law; and there is no right or
+power among men to destroy its obligation.
+
+Take another case. The constitution declares that "Congress shall have
+power to _regulate commerce_ with foreign nations, and among the several
+states, and with the Indian tribes."
+
+This power has been held by the supreme court to be an exclusive one in
+the general government--and one that cannot be controlled by the states.
+Yet it gives congress no constitutional authority to legalize any
+commerce inconsistent with natural justice between man and man; although
+the _mere_ verbal import of the words, if stretched to their utmost
+tension in favor of the wrong, would authorize congress to legalize a
+commerce in poisons and deadly weapons, for the express purpose of
+having them used in a manner inconsistent with natural right--as for the
+purposes of murder.
+
+At natural law, and on principles of natural right, a person, who should
+_sell_ to another a weapon or a poison, knowing that it would, or
+intending that it should be used for the purpose of murder, would be
+legally an accessary to the murder that should be committed with it. And
+if the grant to congress of a "power to regulate commerce," can be
+stretched beyond the _innocent_ meaning of the words--beyond the power
+of regulating and authorizing a commerce that is consistent with natural
+justice--and be made to cover every thing, intrinsically criminal, that
+can be perpetrated under the name of commerce--then congress have the
+authority of the constitution for granting to individuals the liberty of
+bringing weapons and poisons from "foreign nations" into this, and from
+one state into another, and selling them openly for the express purposes
+of murder, without any liability to legal restraint or punishment.
+
+Can any stronger cases than these be required to prove the necessity,
+the soundness, and the inflexibility of that rule of law, which requires
+the judiciary to ascribe an innocent meaning to all language that will
+possibly bear an innocent meaning? and to ascribe _only_ an innocent
+meaning to language whose mere verbal import might be susceptible of
+both an innocent _and_ criminal meaning? If this rule of interpretation
+could be departed from, there is hardly a power granted to congress,
+that might not _lawfully_ be perverted into an authority for legalizing
+crimes of the highest grade.
+
+In the light of these principles, then, let us examine those clauses of
+the constitution, that are relied on as recognizing and sanctioning
+slavery. They are but three in number.
+
+The one most frequently quoted is the third clause of Art. 4, Sec. 2, in
+these words:
+
+   "No person, held to service or labor in one state, under the laws
+   thereof, escaping into another, shall in consequence of any law or
+   regulation therein, be discharged from such service or labor; but
+   shall be delivered up on claim of the party to whom such service or
+   labor may be due."
+
+There are several reasons why this clause renders no sanction to
+slavery.
+
+1. It must be construed, if possible, as sanctioning nothing contrary to
+natural right.
+
+If there be any "service or labor" whatever, to which any "persons"
+whatever may be "held," _consistently with natural right_, and which any
+person may, consistently with natural right, "_claim_" as his "_due_" of
+another, such "service or labor," and _only_ such, is recognized and
+sanctioned by this provision.
+
+It needs no argument to determine whether the "service or labor," that
+is exacted of a slave, is such as can be "_claimed_," _consistently with
+natural right_, as being "_due_" from him to his master. And if it
+cannot be, some other "service or labor" must, if possible, be found for
+this clause to apply to.
+
+The proper definition of the word "service," in this case, obviously is,
+the labor of a _servant_. And we find, that at and before the adoption
+of the constitution, the persons recognized by the state laws as
+"servants," constituted a numerous class. The statute books of the
+states abounded with statutes in regard to "servants." Many seem to have
+been indented as servants by the public authorities, on account of
+their being supposed incompetent, by reason of youth and poverty, to
+provide for themselves. Many were doubtless indented as apprentices by
+their parents and guardians, as now. The English laws recognized a class
+of servants--and many persons were brought here from England, in that
+character, and retained that character afterward. Many indented or
+contracted themselves as servants for the payment of their passage money
+to this country. In these various ways, the class of persons, recognized
+by the statute books of the states as "servants," was very numerous; and
+formed a prominent subject of legislation. Indeed, no other evidence of
+their number is necessary than the single fact, that "persons bound to
+service for a term of years," were specially noticed by the constitution
+of the United States, (Art. 1, Sec. 2,) which requires that they be
+counted as units in making up the basis of representation. There is
+therefore not the slightest apology for pretending that there was not a
+sufficient class for the words "service or labor" to refer to, without
+supposing the existence of slaves.[20]
+
+2. "_Held to service or labor_," is no legal description of slavery.
+Slavery is property in man. It is not necessarily attended with either
+"service or labor." A very considerable portion of the slaves are either
+too young, too old, too sick, or too refractory to render "service or
+labor." As a matter of fact, slaves, who are able to labor, may, in
+general, be compelled by their masters to do so. Yet labor is not an
+essential or necessary condition of slavery. The essence of slavery
+consists in a person's being owned as property--without any reference to
+the circumstances of his being compelled to labor, or of his being
+permitted to live in idleness, or of his being too young, or too old, or
+too sick to labor.
+
+If "service or labor" were either a test, or a necessary attendant of
+slavery, that test would of itself abolish slavery; because all slaves,
+before they can render "service or labor," must have passed through the
+period of infancy, when they could render neither service nor labor, and
+when, therefore, according to this test, they were free. And if they
+were free in infancy, they could not be subsequently enslaved.
+
+3. "Held to service or labor in one state, _under the laws thereof_."
+
+The "_laws_" take no note of the fact whether a slave "labors," or not.
+They recognize no obligation, on his part, to labor. They will enforce
+no "_claim_" of a master, upon his slave, for "service or labor." If the
+slave refuse to labor, the law will not interfere to compel him. The law
+simply recognizes the master's _right of property_ in the slave--just as
+it recognizes his right of property in a horse. Having done that, it
+leaves the master to compel the slave, if he please, and if he can--as
+he would compel a horse--to labor. If the master do not please, or be
+not able, to compel the slave to labor, the law takes no more cognizance
+of the case than it does of the conduct of a refractory horse. In short,
+it recognizes no obligation, on the part of the slave, to labor, if he
+can avoid doing so. It recognizes no "_claim_," on the part of the
+master, upon his slave, for "services or labor," as "_due_" from the
+latter to the former.
+
+4. Neither "service" nor "labor" is necessarily slavery; and not being
+necessarily slavery, the words cannot, in this case, be strained beyond
+their necessary meaning, to make them sanction a wrong. The law will
+not allow words to be strained a hair's breadth beyond their _necessary_
+meaning, to make them authorize a wrong. _The stretching, if there be
+any, must always be towards the right._ The words "service or labor" do
+not necessarily, nor in their common acceptation, so much as suggest the
+idea of slavery--that is, they do not suggest the idea of the laborer or
+servant being the property of the person for whom he labors. An indented
+apprentice serves and labors for another. He is "_held_" to do so, under
+a contract, and for a consideration, that are recognized, by the laws,
+as legitimate, and consistent with natural right. Yet he is not owned as
+property. A condemned criminal is "held to labor"--yet he is not owned
+as property. The law allows no such straining of the meaning of words
+towards the wrong, as that which would convert the words "service or
+labor" (of men) into _property in man_--and thus make a man, who serves
+or labors for another, the property of that other.
+
+5. "No person held to service or labor, in one state, under the _laws_
+thereof."
+
+The "_laws_," here mentioned, and impliedly sanctioned, are, of course,
+only _constitutional_ laws--laws, that are consistent, both with the
+constitution of the state, and the constitution of the United States.
+None others are "_laws_," correctly speaking, however they may attempt
+to "hold persons to service or labor," or however they may have the
+forms of laws on the statute books.
+
+This word "laws," therefore, being a material word, leaves the whole
+question just where it found it--for it certainly does not, _of
+itself_--nor indeed does any other part of the clause--say that acts of
+a legislature, declaring one man to be the property of another, is a
+"_law_" within the meaning of the constitution. As far as the word
+"_laws_" says any thing on the subject, it says that such acts are _not_
+laws--for such acts are clearly inconsistent with natural law--and it
+yet remains to be shown that they are consistent with any constitution
+whatever, state or national.
+
+The burden of proof, then, still rests upon the advocates of slavery, to
+show that an act of a state legislature, declaring one man to be the
+property of another, is a "law," within the meaning of this clause. To
+assert simply that it is, without proving it to be so, is a mere begging
+of the question--for that is the very point in dispute.
+
+The question, therefore, of the _constitutionality_ of the slave acts
+must first be determined, before it can be decided that they are "laws"
+within the meaning of the constitution. That is, they must be shown to
+be consistent with the constitution, before they can be said to be
+sanctioned as "laws" by the constitution. Can any proposition be plainer
+than this? And yet the reverse must be assumed, in this case, by the
+advocates of slavery.
+
+The simple fact, that an act purports to "hold persons to service or
+labor," clearly cannot, _of itself_, make the act constitutional. If it
+could, any act, purporting to hold "persons to service or labor," would
+necessarily be constitutional, without any regard to the "persons" so
+held, or the conditions on which they were held. It would be
+constitutional, _solely because it purported to hold persons to service
+or labor_. If this were the true doctrine, any of us, without respect of
+persons, might be held to service or labor, at the pleasure of the
+legislature. And then, if "service or labor" mean slavery, it would
+follow that any of us, without discrimination, might be made slaves. And
+thus the result would be, that the acts of a legislature would be
+constitutional, _solely because they made slaves of the people_.
+Certainly this would be a new test of the constitutionality of laws.
+
+All the arguments in favor of slavery, that have heretofore been drawn
+from this clause of the constitution, have been founded on the
+assumption, that if an act of a legislature did but purport to "hold
+persons to service or labor"--no matter how, on what conditions, or for
+what cause--that fact alone was sufficient to make the act
+constitutional. The entire sum of the argument, in favor of slavery, is
+but this, viz. the constitution recognizes the constitutionality of
+"laws" that "hold persons to service or labor,"--slave acts "hold
+persons to service or labor,"--therefore slave acts must be
+constitutional. This profound syllogism is the great pillar of slavery
+in this country. It has, (if we are to judge by results,) withstood the
+scrutiny of all the legal acumen of this nation for fifty years and
+more. If it should continue to withstand it for as many years as it has
+already done, it will then be time to propound the following, to wit:
+The state constitutions recognize the right of men to acquire property;
+theft, robbery, and murder are among the modes in which property may be
+acquired; therefore theft, robbery, and murder are recognized by these
+constitutions as lawful.
+
+No doubt the clause contemplates that there may be constitutional
+"laws," under which persons may be "held to service or labor." But it
+does not follow, therefore, that every act, that purports to hold
+"persons to service or labor," is constitutional.
+
+We are obliged, then, to determine whether a statute be constitutional,
+before we can determine whether the "service or labor" required by it,
+is sanctioned by the constitution as being lawfully required. The simple
+fact, that the statute would "hold persons to service or labor," is, _of
+itself_, no evidence, either for or against its constitutionality.
+Whether it be or be not constitutional, may depend upon a variety of
+contingencies--such as the kind of service or labor required, and the
+conditions on which it requires it. Any service or labor, that is
+inconsistent with the duties which the constitution requires of the
+people, is of course not sanctioned by this clause of the constitution
+as being lawfully required. Neither, of course, is the requirement of
+service or labor, _on any conditions, that are inconsistent with any
+rights that are secured to the people by the constitution_, sanctioned
+by the constitution as lawful. Slave laws, then, can obviously be held
+to be sanctioned by this clause of the constitution, only by
+gratuitously assuming, 1st, that the constitution neither confers any
+rights, nor imposes any duties, upon the people of the United States,
+inconsistent with their being made slaves; and, 2d, that it sanctions
+the general principle of holding "persons to service or labor"
+arbitrarily, without contract, without compensation, and without the
+charge of crime. If this be really the kind of constitution that has
+been in force since 1789, it is somewhat wonderful that there are so few
+slaves in the country. On the other hand, if the constitution be not of
+this kind, it is equally wonderful that we have any slaves at all--for
+the instrument offers no ground for saying that a colored man may be
+made a slave, and a white man not.
+
+Again. Slave acts were not "laws" according to any state constitution
+that was in existence at the time the constitution of the United States
+was adopted. And if they were not "laws" at that time, they have not
+been made so since.
+
+6. The constitution itself, (Art. 1. Sec. 2,) in fixing the basis of
+representation, has plainly _denied_ that those described in Art. 4, as
+"persons held to service or labor," are slaves,--for it declares that
+"persons bound to service for a term of years" shall be "included" in
+the "number of _free_ persons." There is no _legal_ difference between
+being "bound to service," and being "held to service or labor." The
+addition, in the one instance, of the words, "for a term of years," does
+not alter the case, for it does not appear that, in the other, they are
+"held to service or labor" beyond a fixed term--and, in the absence of
+evidence from the constitution itself, the presumption must be that they
+are not--because such a presumption makes it unnecessary to go out of
+the constitution to find the persons intended, and it is also more
+consistent with the prevalent municipal, and with natural law.
+
+And it makes no difference to this result, whether the word "free," in
+the first article, be used in the political sense common at that day, or
+as the correlative of slavery. In either case, the persons described as
+"free," could not be made slaves.
+
+7. The words "service or labor" cannot be made to include slavery,
+unless by reversing the legal principle, that the greater includes the
+less, and holding that the less includes the greater; that the innocent
+includes the criminal; that a sanction of what is right, includes a
+sanction of what is wrong.
+
+Another clause relied on as a recognition of the constitutionality of
+slavery, is the following, (Art. 1. Sec. 2.):
+
+   "Representatives and direct taxes shall be apportioned among the
+   several states, which may be included within this union, according to
+   their respective numbers, which shall be determined by adding to the
+   whole number of _free_ persons, including those bound to service for
+   a term of years, and excluding Indians not taxed, three-fifths of all
+   other persons."
+
+The argument claimed from this clause, in support of slavery, rests
+entirely upon the word "free," and the words "all other persons." Or
+rather it rests entirely upon the meaning of the word "free," for the
+application of the words "all other persons" depends upon the meaning
+given to the word "free." The slave argument _assumes_, _gratuitously_,
+that the word "free" is used as the correlative of slavery and thence it
+infers that the words, "all other persons," mean slaves.
+
+It is obvious that the word "free" affords no argument for slavery,
+unless a meaning correlative with slavery be _arbitrarily_ given to it,
+for the very purpose of _making_ the constitution sanction or recognize
+slavery. Now it is very clear that no such meaning can be given to the
+word, _for such a purpose_. The ordinary meaning of a word cannot be
+thus arbitrarily changed, _for the sake of sanctioning a wrong_. A
+choice of meaning would be perfectly allowable, and even obligatory, if
+made for the purpose of _avoiding_ any such sanction; but it is entirely
+inadmissable for the purpose of giving it. The legal rules of
+interpretation, heretofore laid down, imperatively require this
+preference of the right, over the wrong, in all cases where a word is
+susceptible of different meanings.
+
+The English law had for centuries used the word "free" as describing
+persons possessing citizenship, or some other franchise or peculiar
+privilege--as distinguished from aliens, and persons not possessed of
+such franchise or privilege. This law, and this use of the word "free,"
+as has already been shown, had been adopted in this country from its
+first settlement. The colonial charters all, (probably without an
+exception,) recognized it. The colonial legislation generally, if not
+universally, recognized it. The state constitutions, in existence at the
+time the constitution of the United States was formed and adopted, used
+the word in this sense, and no other. The Articles of Confederation--the
+then existing national compact of union--used the word in this sense,
+and no other. The sense is an appropriate one in itself; the most
+appropriate to, and consistent with the whole character of the
+constitution, of any of which the word is susceptible. In fact, it is
+the only one that is either appropriate to, or consistent with, the
+other parts of the instrument. Why, then, is it not the legal meaning?
+Manifestly it _is_ the legal meaning. No reason whatever can be given
+against it, except that, if such be its meaning, _the constitution will
+not sanction slavery_! A very good reason--a perfectly unanswerable
+reason, in fact--in favor of this meaning; but a very futile one against
+it.
+
+It is evident that the word "free" is not used as the correlative of
+slavery, because "Indians not taxed" are "excluded" from its
+application--yet they are not therefore slaves.
+
+Again. The word "free" cannot be presumed to be used as the correlative
+of slavery--because slavery then had no _legal_ existence. The word must
+obviously be presumed to be used as the correlative of something that
+did _legally_ exist, rather than of something that did not legally
+exist. If it were used as the correlative of something that did not
+legally exist, the words "all other persons" would have no legal
+application. Until, then, it be shown that slavery had a legal
+existence, authorized either by the United States constitution, or by
+the then existing state constitutions--a thing that cannot be shown--the
+word "free" certainly cannot be claimed to have been used as its
+correlative.
+
+But even if slavery had been authorized by the _state_ constitutions,
+the word "free," in the United States constitution, could not have been
+claimed to have been used as its correlative, unless it had appeared
+that the United States constitution had itself provided or suggested no
+correlative of the word "free;" for it would obviously be absurd and
+inadmissible to go out of an instrument to find the intended correlative
+of one of its own words, when it had itself suggested one. This the
+constitution of the United States has done, in the persons of aliens.
+The power of naturalization is, by the constitution, taken from the
+states, and given exclusively to the United States. The constitution of
+the United States, therefore, necessarily supposes the existence of
+aliens--and thus furnishes the correlative sought for. It furnishes a
+class both for the word "free," and the words "all other persons" to
+apply to. And yet the slave argument contends that we must overlook
+these distinctions, necessarily growing out of the laws of the United
+States, and go out of the constitution of the United States to _find_
+persons whom it describes as the "free," and "all other persons." And
+what makes the argument the more absurd is, that by going out of the
+instrument to the _then existing state constitutions_--the only
+instruments to which we can go--we can find there _no other_ persons for
+the words to apply to--no other classes answering to the description of
+the "free persons" and "all other persons,"--than the very classes
+suggested by the United States constitution itself, to wit, citizens and
+aliens; (for it has previously been shown that the then existing state
+constitutions recognized no such persons as slaves.)
+
+If we are obliged, (as the slave argument claims we are,) to go out of
+the constitution of the United States to find the class whom it
+describes as "all other persons" than "the free," we shall, for aught I
+see, be equally obliged to go out of it to find those whom it describes
+as the "free"--for "the free," and "all other persons" than "the free,"
+must be presumed to be found described somewhere in the same instrument.
+If, then, we are obliged to go out of the constitution to find the
+persons described in it as "the free" and "all other persons," we are
+obliged to go out of it to ascertain who are the persons on whom it
+declares that the representation of the government shall be based, and
+on whom, of course, the government is founded. And thus we should have
+the absurdity of a constitution that purports to authorize a government,
+yet leaves us to go in search of the people who are to be represented in
+it. Besides, if we are obliged to go out of the constitution, to find
+the persons on whom the government rests, and those persons are
+arbitrarily prescribed by some other instrument, independent of the
+constitution, this contradiction would follow, viz., that the United
+States government would be a subordinate government--a mere appendage to
+something else--a tail to some other kite--or rather a tail to a large
+number of kites at once--instead of being, as it declares itself to be,
+the supreme government--its constitution and laws being the supreme law
+of the land.
+
+Again. It certainly cannot be admitted that we must go out of the United
+States constitution to find the classes whom it describes as "the free,"
+and "all other persons" than "the free," until it be shown that the
+constitution has told us where to go to find them. _In all other cases_,
+(without an exception, I think,) where the constitution makes any of its
+provisions dependent upon the state constitutions, or state
+legislatures, it has particularly described them as depending upon them.
+But it gives no intimation that it has left it with the state
+constitutions, or the state legislatures, to prescribe whom it means by
+the terms "free persons" and "all other persons," on whom it requires
+its own representation to be based. We have, therefore, no more
+authority from the constitution of the United States, for going to the
+state constitutions, to find the classes described in the former as the
+"free persons" and "all other persons," than we have for going to Turkey
+or Japan. We are compelled, therefore, to find them in the constitution
+of the United States itself, if any answering to the description can
+possibly be found there.
+
+Again. If we were permitted to go to the state constitutions, or to the
+state statute books, to find who were the persons intended by the
+constitution of the United States; and if, as the slave argument
+assumes, it was left to the states respectively to prescribe who should,
+and who should not, be "free" within the meaning of the constitution of
+the United States, it would follow that the terms "free" and "all other
+persons," might be applied in as many different ways, and to as many
+different classes of persons, as there were different states in the
+union. Not only so, but the application might also be varied at pleasure
+in the same state. One inevitable consequence of this state of things
+would be, that there could be neither a permanent, nor a uniform basis
+of representation throughout the country. Another possible, and even
+probable consequence would be, such inextricable confusion, as to the
+persons described by the same terms in the different states, that
+Congress could not apportion the national representation at all, in the
+manner required by the constitution. The questions of law, arising out
+of the different uses of the word "free," by the different states, might
+be made so endless and inexplicable, that the state governments might
+entirely defeat all the power of the general government to make an
+apportionment.
+
+If the slave construction be put upon this clause, still another
+difficulty, in the way of making an apportionment, would follow, viz.,
+that congress could have no _legal_ knowledge of the persons composing
+each of the two different classes, on which its representation must be
+based; for there is no legal record--known to the laws of the United
+States, or even to the laws of the states--of those who are slaves, or
+those who are not. The information obtained by the census takers, (who
+have no legal records to go to,) must, in the nature of things, be of
+the most loose and uncertain character, on such points as these. Any
+accurate or _legal_ knowledge on the subject is, therefore, obviously
+impossible. But if the other construction be adopted, this difficulty is
+avoided--for congress then have the control of the whole matter, and may
+adopt such means as may be necessary for ascertaining accurately the
+persons who belong to each of these different classes. And by their
+naturalization laws they actually do provide for a _legal_ record of all
+who are made "free" by naturalization.
+
+And this consideration of certainty, as to the individuals and numbers
+belonging to each of these two classes, "free" and "all other persons,"
+acquires an increased and irresistible force, when it is considered that
+these different classes of persons constitute also different bases for
+taxation, as well as representation. The requirement of the constitution
+is, that "representatives and _direct taxes_ shall be apportioned," &c.,
+according to the number of "free persons" and "all other persons." In
+reference to so important a subject as taxation, _accurate_ and _legal_
+knowledge of the persons and numbers belonging to the different classes,
+becomes indispensable. Yet under the slave construction this legal
+knowledge becomes impossible. Under the other construction it is as
+perfectly and entirely within the power of congress, as, in the nature
+of things, such a subject can be--for naturalization is a legal process;
+and legal records, prescribed by congress, may be, and actually are,
+preserved of all the persons naturalized or made "free" by their laws.
+
+If we adopt that meaning of the word "free," which is consistent with
+freedom--that meaning which is consistent with natural right--the
+meaning given to it by the Articles of Confederation, by the then
+existing state constitutions, by the colonial charters, and by the
+English law ever since our ancestors enjoyed the name of freemen, all
+these difficulties, inconsistencies, contradictions and absurdities,
+that must otherwise arise, vanish. The word "free" then describes the
+native and naturalized citizens of the United States, and the words "all
+other persons" describe resident aliens, "Indians not taxed," and
+possibly some others. The representation is then placed upon the best,
+most just, and most rational basis that the words used can be made to
+describe. The representation also becomes equal and uniform throughout
+the country. The principle of distinction between the two bases, becomes
+also a stable, rational and intelligible one--one too necessarily
+growing out of the exercise of one of the powers granted to
+congress;--one, too, whose operation could have been foreseen and judged
+of by the people who adopted the constitution--instead of one
+fluctuating with the ever changing and arbitrary legislation of the
+various states, whose mode and motives of action could not have been
+anticipated. Adopt this definition of the word "free," and the same
+legislature, (that is, the national one,) that is required by the
+constitution to apportion the representation according to certain
+principles, becomes invested--as it evidently ought to be, and as it
+necessarily must be, to be efficient--with the power of determining, by
+their own (naturalization) laws, who are the persons composing the
+different bases on which its apportionment is to be made; instead of
+being, as they otherwise would be, obliged to seek for these persons
+through all the statute books of all the different states of the union,
+and through all the evidences of private property, under which one of
+these classes might be held. Adopt this definition of the word "free,"
+and the United States government becomes, so far at least as its popular
+representation--which is its most important feature--is concerned, an
+independent government, subsisting by its own vigor, and pervaded
+throughout by one uniform principle. Reject this definition, and the
+popular national representation, loses at once its nationality, and
+becomes a mere dependency on the will of local corporations--a mere
+shuttlecock to be driven hither and thither by the arbitrary and
+conflicting legislation of an indefinite number of separate states.
+Adopt this meaning of the word "free," and the national government
+becomes capable of knowing its own bases of representation and power,
+and its own subjects of taxation. Reject this definition, and the
+government knows not whom it represents, or on whom to levy taxes for
+its support. Adopt this meaning of the word "free," and some three
+millions of native born, but now crushed human beings, become, with
+their posterity, men and citizens. Adopt this meaning--this _legal_
+meaning--this _only_ meaning that can, in this clause, be _legally_
+given to the word "free," and our constitution becomes, instead of a
+nefarious compact of conspirators against the rights of man, a
+consistent and impartial contract of government between _all_ "the
+people of the United States," for securing "to themselves and their
+posterity the blessings of liberty" and "justice."
+
+Again. We cannot unnecessarily place upon the constitution a meaning
+directly destructive of the government it was designed to establish. By
+giving to the word "free" the meaning universally given to it by our
+political papers of a similar character up to the time the constitution
+was adopted, we give to the government three millions of citizens, ready
+to fight and be taxed for its support. By giving to the word "free" a
+meaning correlative with slavery, we locate in our midst three millions
+of enemies; thus making a difference of six millions, (one third of our
+whole number,) in the physical strength of the nation. Certainly a
+meaning so suicidal towards the government, cannot be given to any part
+of the constitution, except the language be irresistibly explicit; much
+less can it be done, (as in this case it would be,) wantonly,
+unnecessarily, gratuitously, wickedly, and in violation of all previous
+usage.
+
+Again. If we look into the constitution itself for the meaning of the
+word "free," we find it to result from the distinction there recognized
+between citizens and aliens. If we look into the contemporary state
+constitutions, we still find the word "free" to express the political
+relation of the individual to the state, and not any property relation
+of one individual to another. If we look into the law of nature for the
+meaning of the word "free," we find that by that law all mankind are
+free. Whether, therefore, we look to the constitution itself, to the
+contemporary state constitutions, or to the law of nature, for the
+meaning of this word "free," the only meaning we shall find is one
+consistent with the personal liberty of all. On the other hand, if we
+are resolved to give the word a meaning correlative with slavery, we
+must go to the lawless code of the kidnapper to find such a meaning.
+Does it need any argument to prove to which of these different codes our
+judicial tribunals are bound to go, to find the meaning of the words
+used in a constitution, that is established professedly to secure
+liberty and justice?
+
+Once more. It is altogether a false, absurd, violent, unnatural and
+preposterous proceeding, in construing a political paper, which purports
+to establish men's relations to the state, and especially in construing
+the clause in it which fixes the basis of representation and taxation,
+to give to the words, which describe the persons to be represented and
+taxed, and which appropriately indicate those relations of men to the
+state which make them proper subjects of taxation and representation--to
+give to such words a meaning, which, instead of describing men's
+relations to the state, would describe merely a personal or property
+relation of one individual to another, which the state has nowhere else
+recognized, and which, if admitted to exist, would absolve the persons
+described from all allegiance to the state, would deny them all right to
+be represented, and discharge them from all liability to be taxed.
+
+But it is unnecessary to follow out this slave argument into all its
+ramifications. It sets out with nothing but assumptions, that are
+gratuitous, absurd, improbable, irrelevant, contrary to all previous
+usage, contrary to natural right, and therefore inadmissible. It
+conducts to nothing but contradictions, absurdities, impossibilities,
+indiscriminate slavery, anarchy, and the destruction of the very
+government which the constitution was designed to establish.
+
+The other clause relied on as a recognition and sanction, both of
+slavery and the slave trade, is the following:
+
+   "The migration or importation of such persons as any of the states
+   now existing shall think proper to admit, shall not be prohibited by
+   the congress prior to the year one thousand eight hundred and eight,
+   but a tax or duty may be imposed on such importation, not exceeding
+   ten dollars for each person."--(Art. 1, Sec. 9.)
+
+The slave argument, drawn from this clause, is, that the word
+"importation" applies only to property, and that it therefore implies,
+in this clause, that the persons to be imported are necessarily to be
+imported as property--that is, as slaves.
+
+But the idea that the word "importation" applies only to property, is
+erroneous. It applies correctly both to persons and things. The
+definition of the verb "import" is simply "to bring from a foreign
+country, or jurisdiction, or from another state, into one's own country,
+jurisdiction or state."--When we speak of "importing" things, it is true
+that we mentally associate with them the idea of property. But that is
+simply because _things_ are property, and not because the word "import"
+has any control, in that particular, over the character of the things
+imported. When we speak of importing "persons," we do not associate with
+them the idea of property, simply because "persons" are not property.
+
+We speak daily of the "importation of foreigners into the country;" but
+no one infers therefrom that they are brought in as slaves, but as
+passengers. A vessel imports, or brings in, five hundred passengers.
+Every vessel, or master of a vessel, that "brings in" passengers,
+"imports" them. But such passengers are not therefore slaves. A man
+imports his wife and children--but they are not therefore his slaves,
+or capable of being owned or sold as his property. A man imports a gang
+of laborers, to clear lands, cut canals, or construct railroads; but not
+therefore to be held as slaves. An innocent meaning must be given to the
+word, if it will bear one. Such is the legal rule.
+
+Even the popular understanding of the word "import," when applied to
+"persons," does not convey the idea of property. It is only when it is
+applied distinctly to "slaves," that any such idea is conveyed; and then
+it is the word "slaves," and not the word "import," that suggests the
+idea of property. Even slave traders and slave holders attach no such
+meaning to the word "import," when it is connected with the word
+"persons;" but only when it is connected with the word "slaves."
+
+In the case of Ogden _vs._ Saunders, (12 Wheaton, 332,) Chief Justice
+Marshall said, that in construing the constitution, "the intention of
+the instrument must prevail; that this intention must be collected from
+its words; that its words are to be understood in that sense in which
+they are _generally used_ by those for whom the instrument was
+intended." On this principle of construction, there is not the least
+authority for saying that this provision for "the importation of
+persons," authorized the importation of them as slaves. To give it this
+meaning, requires the same stretching of words _towards the wrong_, that
+is applied, by the advocates of slavery, to the words "service or
+labor," and the words "free" and "all other persons."
+
+Another reason, which makes it necessary that this construction should
+be placed upon the word "_importation_," is, that the clause contains no
+other word that describes the immigration of foreigners. Yet that the
+clause related to the immigration of foreigners _generally_, and that it
+restrained congress, (up to the year 1808,) from prohibiting the
+immigration of foreigners generally, there can be no doubt.
+
+The object, and the only _legal_ object, of the clause was to restrain
+congress from so exercising their "power of regulating commerce with
+foreign nations, and among the several states, and with the Indian
+tribes"--(which power has been decided by the supreme court of the
+United States, to include a power over navigation and the transportation
+of passengers in boats and vessels[21])--as to obstruct the introduction
+of new population into such of the states as were desirous of increasing
+their population in that manner. The clause does not imply at all, that
+the population, which the states were thus to "admit," was to be a slave
+population.
+
+The word "importation," (I repeat,) is the only word in the clause, that
+applies to persons that were to _come into_ the country from foreign
+nations. The word "_migration_" applies only to those who were to _go
+out from_ one of our own states or territories into another.
+"_Migration_" is the act of _going out_ from a state or country; and
+differs from immigration in this, that immigration is the act of _coming
+into_ a state or country. It is obvious, therefore, that the
+"_migration_," which congress are here forbidden to prohibit, is simply
+the _going out_ of persons from one of our own states or territories
+into another--(for that is the only "_migration_" that could come within
+the jurisdiction of congress)--and that it has no reference to persons
+_coming in_ from foreign countries to our own.
+
+If, then, "migration," as here used, has reference only to persons
+_going out_ from one state into another, the word "_importation_" is the
+only one in the clause that is applicable to foreigners coming into our
+country. This word "importation," then, being the only word that can
+apply to persons coming into the country, it must be considered as
+substantially synonymous with immigration, and must apply equally to
+_all_ "persons," that are "imported," or brought into the country as
+passengers. And if it applies equally to all persons, that are brought
+in as passengers, it does not _imply_ that any of those persons are
+slaves; for no one will pretend that this clause ever authorized the
+state governments to treat as slaves _all_ persons that were brought
+into the country as passengers. And if it did not authorize them to
+treat all such passengers as slaves, it did not authorize them to treat
+any of them as such; for it makes no discrimination between the
+different "persons" that should be thus imported.
+
+Again. The argument, that the allowance of the "importation" of
+"persons," implies the allowance of property in such persons, would
+imply a recognition of the validity of the slave laws of other
+countries; for unless slaves were obtained by valid purchase
+abroad--which purchase implies the existence and validity of foreign
+slave laws--the importer certainly could not claim to import his slaves
+as property; but he would appear, at the custom-house, as a mere pirate,
+claiming to have his captures legalized. So that, _according to the
+slave argument_, the simple use of the word "importation," in the
+constitution, as applied to "persons," bound our government, not only to
+the sanction and toleration of slavery in our own country, but to the
+recognition of the validity of the slave laws of other countries.
+
+But farther. The allowance of the "importation" of slaves, as such,
+under this clause of the constitution, would imply that congress must
+take actual, and even the most critical cognizance of the slave laws of
+other countries; and that they should allow neither the mere word of the
+person calling himself the owner, nor any thing short of the fullest and
+clearest legal proof, according to the laws of those countries, to be
+sufficient to enable him to enter his slaves, as property, at the
+custom-house; otherwise any masters of vessels, from England or France,
+as well as from Africa, might, on their arrival here, claim their
+passengers as slaves. Did the constitution, in this clause, by simply
+using the word "importation," instead of immigration, intend to throw
+upon the national government--at the hazard of making it a party to the
+illegal enslavement of human beings--the responsibility of
+investigating and deciding upon the legality and credibility of all the
+evidence that might be offered by the piratical masters of slave ships,
+to prove their valid purchase of, and their right of property in their
+human cargoes, according to the slave laws of the countries from which
+they should bring them? Such must have been the intention of the
+constitution, if it intended, (as it must, if it intended any thing of
+this kind,) that the fact of "importation" under the commercial
+regulations of congress, should be thereafter a sufficient authority for
+holding in slavery the persons imported.
+
+But perhaps it will be said that it was not the intention of the
+constitution, that congress should take any responsibility at all in the
+matter; that it was merely intended that whoever came into the country
+with a cargo of men, whom he called his slaves, should be permitted to
+bring them in on his own responsibility, and sell them as slaves for
+life to our people; and that congress were prohibited only from
+interfering, or asking any questions as to how he obtained them, or how
+they became his slaves. Suppose such were the intention of the
+constitution--what follows? Why, that the national government, the only
+government that was to be known to foreign nations, the only government
+that was to be permitted to regulate our commerce, or make treaties with
+foreign nations, the government on whom alone was to rest the
+responsibility of war with foreign nations, was bound to permit, (until
+1808,) all masters, both of our own ships and of the ships of other
+nations, to turn pirates, and make slaves of their passengers, whether
+Englishmen, Frenchmen, or any other civilized people, (for the
+constitution makes no distinction of "persons" on this point,) bring
+them into this country, sell them as slaves for life to our people, and
+thus make our country a rendezvous and harbor for pirates, involve us
+inevitably in war with every civilized nation in the world, cause
+ourselves to be outlawed as a people, and bring certain and swift
+destruction upon the whole nation; and yet this government, that had the
+sole responsibility of all our foreign relations, was constitutionally
+prohibited from interfering in the matter, or from doing any thing but
+lifting its hands in prayer to God and these pirates, that the former
+would so far depart, and the latter so far desist from their usual
+courses, as might be necessary to save us, until 1808, (after which time
+we would take the matter into our own hands, and, by prohibiting the
+causes of the danger, save ourselves,) from the just vengeance, which
+the rest of mankind were taking upon us.
+
+This is the kind of constitution, under which, (according to the slave
+argument,) we lived until 1808.
+
+But is such the real character of the constitution? By it, did we thus
+really avow to the world that we were a nation of pirates? that our
+territory should be a harbor for pirates? that our people were
+constitutionally licensed to enslave the people of all other nations,
+without discrimination, (for the instrument makes no discrimination,)
+whom they could either kidnap in their own countries, or capture on the
+high seas? and that we had even prohibited our only government that
+could make treaties with foreign nations, from making any treaty, until
+1808, with any particular nation, to exempt the people of that nation
+from their liability to be enslaved by the people of our own? The slave
+argument says that we did avow all this. If we really did, perhaps all
+that can be said of it now is, that it is very fortunate for us that
+other nations did not take us at our word. For if they had taken us at
+our word, we should, before 1808, have been among the nations that were.
+
+Suppose that, on the organization of our government, we had been charged
+by foreign nations, with having established a piratical government--how
+could we have rebutted the charge otherwise than by denying that the
+words "importation of persons" legally implied that the persons imported
+were slaves? Suppose that European ambassadors had represented to
+president Washington that their governments considered our constitution
+as licensing our people to kidnap the people of other nations, without
+discrimination, and bring them to the United States as slaves. Would he
+not have denied that the legal meaning of the clause did any thing more
+than secure the free introduction of foreigners as passengers and
+freemen? Or would he--_he_, the world-renowned champion of human
+rights--have indeed stooped to the acknowledgment that in truth he was
+the head of a nation of pirates, whose constitution did guarantee the
+freedom of kidnapping men abroad, and importing them as slaves? And
+would he, in the event of this acknowledgment, have sought to avert the
+destruction, which such an avowal would be likely to bring upon the
+nation, by pleading that, although such was the legal meaning of the
+words of our constitution, we yet had an understanding, (an honorable
+understanding!) among ourselves, that we would not take advantage of the
+license to kidnap or make slaves of any of the citizens of those
+civilized and powerful nations of Europe, that kept ships of war, and
+knew the use of gunpowder and cannon; but only the people of poor, weak,
+barbarous and ignorant nations, who were incapable of resistance and
+retaliation?
+
+Again. Even the allowance of the simple "_importation_" of slaves--(and
+that is the most that is _literally_ provided for--and the word
+"importation" must be construed to the letter,) would not, of itself,
+give any authority for the continuance of the slavery _after_
+"importation." If a man bring either property or persons into this
+country, he brings them in to abide the constitutional laws of the
+country; and not to be held according to the customs of the country from
+which they were brought. Were it not so, the Turk might import a harem
+of Georgian slaves, and, at his option, either hold them as his own
+property, or sell them as slaves to our own people, in defiance of any
+principles of freedom that should prevail amongst us. To allow this kind
+of "importation," would be to allow not merely the importation of
+foreign "persons," but also of foreign laws to take precedence of our
+own.
+
+Finally. The conclusion, that congress were restrained, by this clause,
+only from prohibiting the immigration of a foreign population, and not
+from prohibiting the importation of slaves, to be held as slaves after
+their importation--is the more inevitable, from the fact that the power
+given to congress of naturalizing foreigners, is entirely
+unlimited--except that their laws must be uniform throughout the United
+States. They have perfect power to pass laws that shall naturalize every
+foreigner without distinction, the moment he sets foot on our soil. And
+they had this power as perfectly prior to 1808, as since. And it is a
+power entirely inconsistent with the idea that they were bound to admit,
+and forever after to acknowledge as slaves, all or any who might be
+attempted to be brought into the country as such.
+
+One other provision of the constitution, viz: the one that "the United
+States shall protect each of the States against domestic violence"--has
+sometimes been claimed as a special pledge of impunity and succor to
+that kind of "violence," which consists in one portion of the people's
+standing constantly upon the necks of another portion, and robbing them
+of all civil privileges, and trampling upon all their personal rights.
+The argument seems to take it for granted, that the only proper way of
+protecting a "_republican_" state (for the states are all to be
+"republican,") against "domestic violence," is to plant men firmly upon
+one another's necks, (about in the proportion of two upon one,) arm the
+two with whip and spur, and then keep an armed force standing by to cut
+down those that are ridden, if they dare attempt to throw the riders.
+When the ridden portion shall, by this process, have been so far subdued
+as to bear the burdens, lashings and spurrings of the other portion
+without resistance, then the state will have been secured against
+"domestic violence," and the "republican form of government" will be
+completely successful.
+
+This version of this provision of the constitution presents a fair
+illustration of those new ideas of law and language, that have been
+invented for the special purpose of bringing slavery within the pale of
+the constitution.
+
+We have thus examined all those clauses of the constitution, that have
+been relied on to prove that the instrument recognizes and sanctions
+slavery. No one would have ever dreamed that either of these clauses
+alone, or that all of them together, contained so much as an allusion to
+slavery, had it not been for circumstances extraneous to the
+constitution itself. And what are these extraneous circumstances? They
+are the existence and toleration, in one portion of the country, of a
+crime that embodies within itself nearly all the other crimes, which it
+is the principal object of all our governments to punish and suppress; a
+crime which we have therefore no more right to presume that the
+constitution of the United States intended to sanction, than we have to
+presume that it intended to sanction all the separate crimes which
+slavery embodies, and our governments prohibit. Yet we have
+_gratuitously_ presumed that the constitution intended to sanction all
+these separate crimes, as they are comprehended in the general crime of
+slavery. And acting upon this gratuitous presumption, we have sought, in
+the words of the constitution, for some hidden meaning, which we could
+imagine to have been understood, by the initiated, as referring to
+slavery; or rather we have presumed its words to have been used as a
+kind of cypher, which, among confederates in crime, (as we presume its
+authors to have been,) was meant to stand for slavery. In this way, and
+in this way only, we pretend to have discovered, in the clauses that
+have been examined, a hidden, yet legal sanction of slavery. In the name
+of all that is legal, who of us are safe, if our government, instead of
+searching our constitution to find authorities for maintaining justice,
+are to continue to busy themselves in such prying and microscopic
+investigations, after such disguised and enigmatical authorities for
+such wrongs as that of slavery, and their pretended discoveries are to
+be adopted as law, which they are sworn to carry into execution?
+
+The clauses mentioned, taken either separately or collectively, neither
+assert, imply, sanction, recognize nor acknowledge any such thing as
+slavery. They do not even speak of it. They make no allusion to it
+whatever. They do not suggest, and, of themselves, never would have
+suggested the idea of slavery. There is, in the whole instrument, no
+such word as slave or slavery; nor any language that can legally be made
+to assert or imply the existence of slavery. There is in it nothing
+about color; nothing from which a liability to slavery can be predicated
+of one person more than another; or from which such a liability can be
+predicated of any person whatever. The clauses, that have been claimed
+for slavery, are all, in themselves, honest in their language, honest in
+their legal meaning; and they can be made otherwise only by such
+gratuitous assumptions against natural right, and such straining of
+words in favor of the wrong, as, if applied to other clauses, would
+utterly destroy every principle of liberty and justice, and allow the
+whole instrument to be perverted to every conceivable purpose of tyranny
+and crime.
+
+Let us now look at the _positive_ provisions of the constitution, _in
+favor of liberty_, and see whether they are not only inconsistent with
+any legal sanction of slavery, but also whether they must not, of
+themselves, have necessarily extinguished slavery, if it had had any
+constitutional existence to be extinguished.
+
+And, first, the constitution made all "the people of the United States"
+_citizens_ under the government to be established by it; for all of
+those, by whose authority the constitution declares itself to be
+established, must of course be presumed to have been made citizens under
+it. And whether they were entitled or not to the right of suffrage, they
+were at least entitled to all the personal liberty and protection, which
+the constitution professes to secure to "the people" generally.
+
+Who, then, established the constitution?
+
+The preamble to the constitution has told us in the plainest possible
+terms, to wit, that "We, _the people_ of the United States" "do ordain
+and establish this constitution," &c.
+
+By "the people of the United States," here mentioned, the constitution
+intends _all_ "the people" then permanently inhabiting the United
+States. If it does not intend all, who were intended by "the people of
+the United States?"--The constitution itself gives no answer to such a
+question.--It does not declare that "we, the _white_ people," or "we,
+the _free_ people," or "we, a _part_ of the people"--but that "we, _the_
+people"--that is, we the _whole_ people--of the United States, "do
+ordain and establish this constitution."
+
+If the _whole_ people of the United States were not recognized as
+citizens by the constitution, then the constitution gives no information
+as to what portion of the people were to be citizens under it. And the
+consequence would then follow that the constitution established a
+government that could not know its own citizens.
+
+We cannot go out of the constitution for evidence to prove who were to
+be citizens under it. We cannot go out of a written instrument for
+evidence to prove the parties to it, nor to explain its meaning, except
+the language of the instrument on that point be ambiguous. In this case
+there is no ambiguity. The language of the instrument is perfectly
+explicit and intelligible.
+
+Because the whole people of the country were not allowed to vote on the
+ratification of the constitution, it does not follow that they were not
+made citizens under it; for women and children did not vote on its
+adoption; yet they are made citizens by it, and are entitled as citizens
+to its protection; and the state governments cannot enslave them. The
+national constitution does not limit the right of citizenship and
+protection by the right of suffrage, any more than do the state
+constitutions. Under the most, probably under all the state
+constitutions, there are persons who are denied the right of
+suffrage--but they are not therefore liable to be enslaved.
+
+Those who did take part in the actual ratification of the constitution,
+acted in behalf of, and, _in theory_, represented the authority of the
+whole people. Such is the theory in this country wherever suffrage is
+confined to a few; and such is the virtual declaration of the
+constitution itself. The declaration that "we _the people_ of the United
+States do ordain and establish this constitution," is equivalent to a
+declaration that those who actually participated in its adoption, acted
+in behalf of all others, as well as for themselves.
+
+Any private intentions or understandings, on the part of one portion of
+the people, as to who should be citizens, cannot be admitted to prove
+that such portion only were intended by the constitution, to be
+citizens; for the intentions of the other portion would be equally
+admissible to exclude the exclusives. The mass of the people can claim
+citizenship under the constitution, on no other ground than as being a
+part of "the people of the United States;" and such claim necessarily
+admits that all other "people of the United States" are equally
+citizens.
+
+That the designation, "We the people of the United States," included the
+whole people that properly belonged to the United States, is also proved
+by the fact that no exception is made in any other part of the
+instrument.
+
+If the constitution had intended that any portion of "the people of the
+United States" should be excepted from its benefits, disfranchised,
+outlawed, enslaved, it would of course have designated these exceptions
+with such particularity as to make it sure that none but the true
+persons intended would be liable to be subjected to such wrongs. Yet,
+instead of such particular designation of the exceptions, we find no
+designation whatever of the kind. But on the contrary, we _do_ find, in
+the preamble itself, a sweeping declaration to the effect that there are
+no such exceptions; that the whole people of the United States are
+citizens, and entitled to liberty, protection, and the dispensation of
+justice under the constitution.
+
+If it be admitted that the constitution designated its own citizens,
+then there is no escape from the conclusion that it designated the
+whole people of the United States as such. On the other hand, if it be
+denied that the constitution designated its own citizens, one of these
+two conclusions must follow, viz., 1st, that it has no citizens; or, 2d,
+that it has left an unrestrained power in the _state_ governments to
+determine who may, and who may not, be citizens of the _United States_
+government. If the first of these conclusions be adopted, viz., that the
+constitution has no citizens, then it follows that there is really no
+United States government, except on paper--for there would be as much
+reason in talking of an army without men, as of a government without
+citizens. If the second conclusion be adopted, viz., that the state
+governments have the right of determining who may, and who may not be
+citizens of the United States government, then it follows that the state
+governments may at pleasure destroy the government of the United States,
+by enacting that none of their respective inhabitants shall be citizens
+of the United States.
+
+This latter is really the doctrine of some of the slave states--the
+"state-rights" doctrine, so called. That doctrine holds that the general
+government is merely a confederacy or league of the several states, _as
+states_; not a government established by the people, _as people_. This
+"state-rights" doctrine has been declared unconstitutional by reiterated
+opinions of the supreme court of the United States;[22] and, what is of
+more consequence, it is denied also by the preamble to the constitution
+itself, which declares that it is "the people," (and not the state
+governments,) that ordain and establish it. It is true also that the
+constitution was ratified by conventions of the people, and not by the
+legislatures of the states. Yet because the constitution was ratified by
+conventions of the states _separately_, (as it naturally would be for
+convenience, and as it necessarily must have been for the reason that
+none but the people of the respective states could recall any portion of
+the authority they had, delegated to their state governments, so as to
+grant it to the United States government,)--yet because it was thus
+ratified, I say, some of the slave states have claimed that the general
+government was a league of states, instead of a government formed by
+"the people." The true reason why the slave states have held this
+theory, probably is, because it would give, or appear to give, to the
+states the right of determining who should, and who should not, be
+citizens of the United States. They probably saw that if it were
+admitted that the constitution of the United States had designated its
+own citizens, it had undeniably designated the whole people of the then
+United States as such; and that, as a state could not enslave a citizen
+of the United States, (on account of the supremacy of the constitution
+of the United States,) it would follow that there could be no
+constitutional slavery in the United States.
+
+Again. If the constitution was established by authority of all "the
+people of the United States," they were all legally parties to it, and
+citizens under it. And if they were parties to it, and citizens under
+it, it follows that neither they, _nor their posterity_, nor any nor
+either of them, can ever be legally enslaved within the territory of the
+United States; for the constitution declares its object to be, among
+other things, "to secure the blessings of liberty to _ourselves, and our
+posterity_." This purpose of the national constitution is a law
+paramount to all state constitutions; for it is declared that "this
+constitution, and the laws of the United States that shall be made in
+pursuance thereof, and all treaties made, or which shall be made under
+the authority of the United States, shall be the supreme law of the
+land; and the judges _in every state_ shall be bound thereby, any thing
+in the constitution or laws of any state to the contrary
+notwithstanding."
+
+No one, I suppose, doubts that if the state governments were to abolish
+slavery, the slaves would then, without further legislation, become
+citizens of the United States. Yet, in reality, if they would become
+citizens then, they are equally citizens now--else it would follow that
+the state governments had an arbitrary power of making citizens of the
+United States; or--what is equally absurd--it would follow that
+disabilities, arbitrarily imposed by the state governments, upon native
+inhabitants of the country, were, of themselves, sufficient to deprive
+such inhabitants of their citizenship, which would otherwise have been
+conferred upon them by the constitution of the United States. To suppose
+that the state governments are thus able, arbitrarily, to keep in
+abeyance, or arbitrarily to withhold from any of the inhabitants of the
+country, any of the benefits or rights which the national constitution
+intended to confer upon them, would be to suppose that the state
+constitutions were paramount to the national one. The conclusion,
+therefore, is inevitable, that the state governments have no power to
+withhold the rights of citizenship from any who are otherwise competent
+to become citizens. And as all the native born inhabitants of the
+country are at least competent to become citizens of the United States,
+(if they are not already such,) the state governments have no power, by
+slave laws or any other, to withhold the rights of citizenship from
+them.
+
+But however clear it may be, that the constitution, in reality, made
+citizens of all "the people of the United States," yet it is not
+necessary to maintain that point, in order to prove that the
+constitution gave no guaranty or sanction to slavery--for if it had not
+already given citizenship to all, it nevertheless gave to the government
+of the United States unlimited power of offering citizenship to all. The
+power given to the government of passing naturalization laws, is
+entirely unrestricted, except that the laws must be uniform throughout
+the country. And the government have undoubted power to offer
+naturalization and citizenship to every person in the country, whether
+foreigner or native, who is not already a citizen. To suppose that we
+have in the country three millions of native born inhabitants, not
+citizens, and whom the national government has no power to make
+citizens, when its power of naturalization is entirely unrestricted, is
+a palpable contradiction.
+
+But further. The constitution of the United States must be made
+consistent with itself throughout; and if any of its parts are
+irreconcilable with each other, those parts that are inconsistent with
+liberty, justice and right, must be thrown out for inconsistency.
+Besides the provisions already mentioned, there are numerous others, in
+the constitution of the United States, that are entirely and
+irreconcilably inconsistent with the idea that there either was, or
+could be, any constitutional slavery in this country.
+
+Among these provisions are the following:
+
+_First._ Congress have power to lay a capitation or poll tax upon the
+people of the country. Upon whom shall this tax be levied? and who must
+be held responsible for its payment? Suppose a poll tax were laid upon a
+man, whom the state laws should pretend to call a slave. Are the United
+States under the necessity of investigating, or taking any notice of the
+fact of slavery, either for the purpose of excusing the man himself from
+the tax, or of throwing it upon the person claiming to be his owner?
+Must the government of the United States find a man's pretended owner,
+or only the man himself, before they can tax him? Clearly the United
+States are not bound to tax any one but the individual himself, or to
+hold any other person responsible for the tax. Any other principle would
+enable the state governments to defeat any tax of this kind levied by
+the United States. Yet a man's liability to be held personally
+responsible for the payment of a tax, levied upon himself by the
+government of the United States, is inconsistent with the idea that the
+government is bound to recognize him as not having the ownership of his
+own person.
+
+   _Second._ "The congress shall have power to regulate commerce with
+   foreign nations, and among the several states, and with the Indian
+   tribes."
+
+This power is held, by the supreme court of the United States, to be an
+exclusive one in the general government; and it obviously must be so, to
+be effectual--for if the states could also interfere to regulate it, the
+states could at pleasure defeat the regulations of congress.
+
+Congress, then, having the exclusive power of regulating this commerce,
+they only (if any body) can say who may, and who may not, carry it on;
+and probably even they have no power to discriminate arbitrarily between
+individuals.--But, in no event, have the _state_ governments any right
+to say who may, or who may not, carry on "commerce with foreign
+nations," or "among the several states," or "with the Indian tribes."
+Every individual--naturally competent to make contracts--whom the state
+laws declare to be a slave, probably has, and certainly may have, under
+the regulations of congress, as perfect a right to carry on "commerce
+with foreign nations, and among the several states, and with the Indian
+tribes," as any other citizen of the United States can have--"any thing
+in the constitution or laws of any state to the contrary
+notwithstanding." Yet this right of carrying on commerce is a right
+entirely inconsistent with the idea of a man's being a slave.
+
+Again. It is a principle of law that the right of traffic is a natural
+right, and that all commerce (that is intrinsically innocent) is
+therefore lawful, except what is prohibited by positive legislation.
+Traffic with the slaves, either by people of foreign nations, or by
+people belonging to other states than the slaves, has never (so far as I
+know) been prohibited by congress, which is the only government, (if
+any,) that has power to prohibit it. Traffic with the slaves is
+therefore as lawful at this moment, under the constitution of the
+United States, as is traffic with their masters; and this fact is
+entirely inconsistent with the idea that their bondage is
+constitutional.
+
+   _Third._ "The congress shall have power to establish post offices and
+   post roads."
+
+Who, but congress, have any right to say who may send, or receive
+letters by the United States posts? Certainly no one. They have
+undoubted authority to permit any one to send and receive letters by
+their posts--"any thing in the constitutions or laws of the states to
+the contrary notwithstanding." Yet the right to send and receive letters
+by post, is a right inconsistent with the idea of a man's being a slave.
+
+   _Fourth._ "The congress shall have power to promote the progress of
+   science and useful arts, by securing for limited times to authors and
+   inventors the exclusive right to their respective writings and
+   discoveries."
+
+Suppose a man, whom a state may pretend to call a slave, should make an
+invention or discovery--congress have undoubted power to secure to such
+individual himself, by patent, the "_exclusive_"--(mark the word)--the
+"exclusive right" to his invention or discovery. But does not this
+"_exclusive right_" in the inventor himself, exclude the right of any
+man, who, under a state law, may claim to be the owner of the inventor?
+Certainly it does. Yet the slave code says that whatever is a slave's is
+his owner's. This power, then, on the part of congress, to secure to an
+individual the exclusive right to his inventions and discoveries, is a
+power inconsistent with the idea that that individual himself, and all
+he may possess, are the property of another.
+
+   _Fifth._ "The congress shall have power to declare war, grant letters
+   of marque and reprisal, and make rules concerning captures on land
+   and water;" also "to raise and support armies;" and "to provide and
+   maintain a navy."
+
+Have not congress authority, under these powers, to enlist soldiers and
+sailors, _by contract with themselves_, and to pay them their wages,
+grant them pensions, and secure their wages and pensions to their own
+use, without asking the permission either of the state governments, or
+of any individuals whom the state governments may see fit to recognize
+as the owners of such soldiers and sailors? Certainly they have, in
+defiance of all state laws and constitutions whatsoever; and they have
+already asserted that principle by enacting that pensions, paid by the
+United States to their soldiers, shall not be liable to be taken for
+debt, under the laws of the states. Have they not authority also to
+grant letters of marque and reprisal, and to secure the prizes, to a
+ship's crew of blacks, as well as of whites? To those whom the State
+governments call slaves, as well as to those whom the state governments
+call free?--Have not congress authority to make contracts, for the
+defence of the nation, with any and all the inhabitants of the nation,
+who may be willing to perform the service? Or are they obliged first to
+ask and obtain the consent of those private individuals who may pretend
+to own the inhabitants of this nation? Undoubtedly congress have the
+power to contract with whom they please, and to secure wages and
+pensions to such individuals, in contempt of all state authority. Yet
+this power is inconsistent with the idea that the constitution
+recognizes or sanctions the legality of slavery.
+
+   _Sixth._ "The congress shall have power to provide for the
+   organizing, _arming_ and disciplining the _militia_, and for
+   governing such part of them as may be employed in the service of the
+   United States, reserving to the states respectively the appointment
+   of the officers, and the authority of training the militia, according
+   to the discipline prescribed by congress." Also "to provide for
+   calling forth the militia to execute the laws of the Union, suppress
+   insurrections, and repel invasions."
+
+Have not congress, under these powers, as undoubted authority to enroll
+in the militia, and "_arm_" those whom the states call slaves, and
+authorize them always to keep their arms by them, even when not on duty,
+(that they may at all times be _ready_ to be "called forth" "to execute
+the laws of the Union, suppress insurrections, and repel invasions,")
+as they have thus to enroll and arm those whom the states call free? Can
+the state governments determine who may, and who may not compose the
+militia of the "United States?"
+
+Look, too, at this power, in connection with the second amendment to the
+constitution; which is in these words:
+
+   "A well regulated militia being necessary to the security of a free
+   state, the right of _the people_ to keep and bear arms shall not be
+   infringed."
+
+These provisions obviously recognize the natural right of all men "to
+keep and bear arms" for their personal defence; and prohibit both
+congress and the state governments from infringing the right of "the
+people"--that is, of _any_ of the people--to do so; and more especially
+of any whom congress have power to include in their militia. This right
+of a man "to keep and bear arms," is a right palpably inconsistent with
+the idea of his being a slave. Yet the right is secured as effectually
+to those whom the states presume to call slaves, as to any whom the
+states condescend to acknowledge free.
+
+Under this provision any man has a right either to give or sell arms to
+those persons whom the states call slaves; and there is no
+_constitutional_ power, in either the national or state governments,
+that can punish him for so doing; or that can take those arms from the
+slaves; or that can make it criminal for the slaves to use them, if,
+from the inefficiency of the laws, it should become necessary for them
+to do so, in defence of their own lives or liberties; for this
+constitutional right to keep arms implies the constitutional right to
+use them, if need be, for the defence of one's liberty or life.
+
+_Seventh._ The constitution of the United States declares that "no state
+shall pass _any_ law impairing the obligation of contracts."
+
+"The obligation of contracts," here spoken of, is, of necessity, the
+_natural obligation_; for that is the only real or true obligation that
+any contracts can have. It is also the only obligation, which courts
+recognize in any case, except where legislatures arbitrarily interfere
+to impair it. But the prohibition of the constitution is upon the
+states' passing any law whatever that shall impair the natural
+obligation of men's contracts. Yet, if slave laws were constitutional,
+they would effectually impair the obligation of all contracts entered
+into by those who are made slaves; for the slave laws must necessarily
+hold that all a slave's contracts are void.
+
+This prohibition upon the states to pass _any_ law impairing the natural
+obligation of men's contracts, implies that all men have a
+constitutional right to enter into all contracts that have a natural
+obligation. It therefore _secures_ the constitutional right of all men
+to enter into such contracts, and to have them respected by the state
+governments. Yet this constitutional right of all men to enter into all
+contracts that have a natural obligation, and to have those contracts
+recognized by law as valid, is a right plainly inconsistent with the
+idea that men can constitutionally be made slaves.
+
+This provision therefore absolutely prohibits the passage of slave laws,
+because laws that make men slaves must necessarily impair the obligation
+of all their contracts.
+
+_Eighth._ Persons, whom some of the state governments recognize as
+slaves, are made eligible, by the constitution of the United States, to
+the office of president of the United States. The constitutional
+provision on this subject is this:
+
+   "No person, except a natural born citizen, or a citizen of the United
+   States at the time of the adoption of this constitution, shall be
+   eligible to the office of president; neither shall any person be
+   eligible to that office, who shall not have attained the age of
+   thirty-five years, and been fourteen years a resident of the United
+   States."
+
+According to this provision, _all_ "persons",[23] who have resided
+within the United States fourteen years, have attained the age of
+thirty-five years, and are either _natural born citizens, or were
+citizens of the United States at the time of the adoption of the
+constitution_, are eligible to the office of president. No other
+qualifications than these being required by the constitution, no others
+can be legally demanded. The only question, then, that can arise, is as
+to the word "citizen." Who are the persons that come within this
+definition, as here used? The clause itself divides them into two
+classes, to wit, the "natural born," and those who were "citizens of the
+United States at the time of the adoption of the constitution." In
+regard to this latter class, it has before been shown, from the preamble
+to the constitution, that all who were "people of the United States,"
+(that is, permanent inhabitants,) at the time the constitution was
+adopted, were made citizens by it. And this clause, describing those
+eligible to the office of president, implies the same thing. This is
+evident; for it speaks of those who were "citizens of the _United
+States_ at the time of the adoption of the constitution." Now there
+clearly could have been no "citizens of the United States, at the time
+of the adoption of the constitution," unless they were made so by the
+constitution itself; for there were _no_ "citizens of the _United
+States_" _before_ the adoption of the constitution. The Confederation
+had no citizens. It was a mere league between the state governments. The
+separate states belonging to the confederacy had each their own citizens
+respectively. But the confederation itself, as such, had no citizens.
+There were, therefore, no "citizens of the United States," (but only
+citizens of the respective states,) before the adoption of the
+constitution.--Yet this clause asserts that immediately on the adoption,
+or "at the time of the adoption of this constitution," there _were_
+"citizens of the United States." Those, then, who were "citizens of the
+United States at the time of the adoption of the constitution," were
+necessarily those, and only those, who had been made so by the adoption
+of the constitution; because they could have become citizens at that
+precise "time" in no other way. If, then, any persons were made
+citizens by the adoption of the constitution, who were the _individuals_
+that were thus made citizens? They were "the people of the United
+States," of course--as the preamble to the constitution virtually
+asserts. And if "the people of the United States" were made citizens by
+the adoption of the constitution, then _all_ "the people of the United
+States" were necessarily made citizens by it--for no discrimination is
+made by the constitution between different individuals, "people of the
+United States"--and there is therefore no means of determining who were
+made citizens by the adoption of the constitution, unless _all_ "the
+people of the United States" were so made. Any "person," then, who was
+one of "the people of the United States" "at the time of the adoption of
+this constitution," and who is thirty-five years old, and has resided
+fourteen years within the United States, is eligible to the office of
+president of the United States. And if every such person be eligible,
+under the constitution, to the office of president of the United States,
+the constitution certainly does not recognize them as slaves.
+
+The other class of citizens, mentioned as being eligible to the office
+of president, consists of the "natural born citizens." Here is an
+implied assertion that _natural birth_ in the country gives the right of
+citizenship. And if it gives it to one, it necessarily gives it to
+all--for no discrimination is made; and if all persons, born in the
+country, are not entitled to citizenship, the constitution has given us
+no test by which to determine who of them are entitled to it.
+
+Every person, then, born in the country, and that shall have attained
+the age of thirty-five years, and been fourteen years a resident within
+the United States, is eligible to the office of president. And if
+eligible to that office, the constitution certainly does not recognize
+him as a slave.
+
+Persons, who are "citizens" of the United States, according to the
+foregoing definitions, are also eligible to the offices of
+representative and senator of the United States; and therefore cannot be
+slaves.
+
+   _Ninth._ The constitution declares that "the trial of all crimes,
+   except in cases of impeachment, shall be _by jury_."--Also that
+   "Treason against the United States shall consist only in levying war
+   against them, or in adhering to their enemies, giving them aid and
+   comfort."
+
+It is obvious that slaves, if we had any, might "levy war against the
+United States," and might also "adhere to their enemies, giving them aid
+and comfort." It may, however, be doubted whether they could commit the
+crime of treason--for treason implies a breach of fidelity, trust or
+allegiance, where fidelity, trust or allegiance is due. And it is very
+clear that slaves could owe allegiance, trust or fidelity, neither to
+the United States, nor to the state governments; for allegiance is due
+to a government only from those who are protected by it. Slaves could
+owe to our governments nothing but resistance and destruction. If
+therefore they were to levy war against the United States, they might
+not perhaps be liable to the technical charge of treason; although there
+would, in reality, be as much treason in their act, as there would of
+any other crime--for there would, in truth, be neither legal nor moral
+crime of any kind in it. Still, the government would be compelled, in
+order to protect itself against them, to charge them with some crime or
+other--treason, murder, or something else. And this charge, whatever it
+might be, would have to be tried by a jury. And what (in criminal
+cases,) is the "trial by jury?" It is a trial, both of the law and the
+fact, by the "peers," or equals, of the person tried. Who are the
+"peers" of a slave? None, evidently, but slaves. If, then, the
+constitution recognizes any such class of persons, in this country, as
+slaves, it would follow that for any crime committed by them against the
+United States, they must be tried, both on the law and the facts, by a
+jury of slaves. The result of such trials we can readily imagine.
+
+Does this look as if the constitution guarantied, or even recognized the
+legality of slavery?
+
+   _Tenth._ The constitution declares that "The privilege of the writ of
+   _habeas corpus_ shall not be suspended, unless when, in cases of
+   rebellion or invasion, the public safety may require it."
+
+The privilege of this writ, wherever it is allowed, is of itself
+sufficient to make slavery impossible and illegal. The object and
+prerogative of this writ are to secure to all persons their natural
+right to personal liberty, against all restraint except from the
+government; and even against restraints by the government itself, unless
+they are imposed in conformity with established general laws, and upon
+the charge of some legal offence or liability. It accordingly liberates
+all who are held in custody against their will, (whether by individuals
+or the government,) unless they are held _on some formal writ or
+process, authorized by law, issued by the government, according to
+established principles, and charging the person held by it with some
+legal offence or liability_. The principle of the writ seems to be, that
+no one shall be restrained of his natural liberty, unless these three
+things conspire; 1st, that the restraint be imposed by _special command
+of the government_; 2d, that there be a general law authorizing
+restraints for specific causes; and, 3d, that the government, previously
+to issuing process for restraining any particular individual, shall
+itself, by its proper authorities, take express cognizance of, and
+inquire cautiously into the facts of each case, and ascertain, by
+reasonable evidence, that the individual has brought himself within the
+liabilities of the general law. All these things the writ of _habeas
+corpus_ secures to be done, before it will suffer a man to be restrained
+of his liberty; for the writ is a mandate to the person holding another
+in custody, commanding him to bring his prisoner before the court, and
+show the authority by which it holds him. Unless he then exhibit a legal
+precept, warrant or writ, issued by, and bearing the seal of the
+government, specifying a legal ground for restraining the prisoner, and
+authorizing or requiring him to hold him in custody, he will be ordered
+to let him go free. Hence all the keepers of prisons, in order to hold
+their prisoners against the authority of this writ, are required, in the
+case of each prisoner, to have a written precept or order, bearing the
+seal of the government, and issued by the proper authority, particularly
+describing the prisoner by name or otherwise, and setting forth the
+legal grounds of his imprisonment, and requiring the keeper of the
+prison to hold him in his custody.
+
+Now the master does not hold his slave in custody by virtue of any
+formal or legal writ or process, either authorized by law, or issued by
+the government, or that charges the slave with any legal offence or
+liability. A slave is incapable of incurring any legal liability, or
+obligation to his master. And the government could, with no more
+consistency, grant a writ or process to the master, to enable him to
+hold his slave, than it could to enable him to hold his horse. It simply
+recognizes his right of property in his slave, and then leaves him at
+liberty to hold him by brute force, if he can, as he holds his ox, or
+his horse--and not otherwise. If the slave escape, or refuse to labor,
+the slave code no more authorizes the government to issue legal process
+against the slave, to authorize the master to catch him, or compel him
+to labor, than it does against a horse for the same purpose.--The slave
+is held simply as property, by individual force, without legal process.
+But the writ of _habeas corpus_ acknowledges no such principle as the
+right of property in man. If it did, it would be perfectly impotent in
+all cases whatsoever; because it is a principle of law, in regard to
+property, that simple possession is _prima facie_ evidence of ownership;
+and therefore any man, who was holding another in custody, could defeat
+the writ by pleading that he owned his prisoner, and by giving, as proof
+of ownership, the simple fact that he was in possession of him. If,
+therefore, the writ of _habeas corpus_ did not, of itself, involve a
+denial of the right of property in man, the fact stated in it, that one
+man was holding another in custody, would be _prima facie_ evidence
+that he owned him, and had a right to hold him; and the writ would
+therefore carry an absurdity in its face.
+
+The writ of _habeas corpus_, then, _necessarily_ denies the right of
+property in man. And the constitution, by declaring, without any
+discrimination of persons, that "the privilege of this writ shall not be
+suspended,"--that is, shall not be denied to any human being--has
+declared that, under the constitution, there can be no right of property
+in man.
+
+This writ was unquestionably intended as a great constitutional guaranty
+of personal liberty. But unless it denies the right of property in man,
+it in reality affords no protection to any of us against being made
+slaves. If it does deny the right of property in man, the slave is
+entitled to the privilege of the writ; for he is held in custody by his
+master, simply on the ground of property.
+
+Mr. Christian, one of Blackstone's editors, says that it is this writ
+that makes slavery impossible in England. It was on this writ, that
+Somerset was liberated. The writ, in fact, asserts, as a great
+constitutional principle, the natural right of personal liberty. And the
+privilege of the writ is not confined to citizens, but extends to all
+human beings.[24] And it is probably the only absolute guaranty, that
+our national constitution gives to foreigners and aliens, that they
+shall not, on their arrival here, be enslaved by those of our state
+governments that exhibit such propensities for enslaving their
+fellow-men. For this purpose, it is a perfect guaranty to people who
+come here from any part of the world. And if it be such a guaranty to
+foreigners and aliens, is it no guaranty to those born under the
+constitution? Especially when the constitution makes no discrimination
+of persons?
+
+   _Eleventh._ "The United States shall guaranty to every state in this
+   union a republican form of government, and shall protect each of
+   them against invasion; and, on application of the legislature, or of
+   the executive, (when the legislature cannot be convened,) against
+   domestic violence."
+
+Mark the strength and explicitness of the first clause of this section,
+to wit, "The United States _shall guarantee_ to every state in this
+union a republican form of government." Mark also especially that this
+guaranty is one of liberty, and not of slavery.
+
+We have all of us heretofore been compelled to hear, from individuals of
+slaveholding principles, many arrogant and bombastic assertions,
+touching the constitutional "_guaranties_" given to _slavery_; and
+persons, who are in the habit of taking their constitutional law from
+other men's mouths, instead of looking at the constitution for
+themselves, have probably been led to imagine that the constitution had
+really given such guaranties in some explicit and tangible form. We
+have, nevertheless, seen that all those pretended guaranties are at most
+nothing but certain vague hints, insinuations, ciphers and innuendoes,
+that are imagined to be covered up under language which legally means
+nothing of the kind. But, in the clause now cited, we do have an
+explicit and peremptory "guaranty," depending upon no implications,
+inferences or conjectures, and couched in no uncertain or ambiguous
+terms. And what is this guaranty? Is it a guaranty of slavery? No. It is
+a guaranty of something flatly incompatible with slavery: a guaranty of
+"a republican form of government to every state in this union."
+
+And what is "a republican form of government?" It is where the
+government is a commonwealth--the property of the public, of the mass of
+the people, or of the entire people. It is where the government is made
+up of, and controlled by the combined will and power of the public, or
+the mass of the people--and where, of natural consequence, it will have,
+for its object, the protection of the rights of all. It is indispensable
+to a republican form of government, that the public, the mass of the
+people, if not the entire people, participate in the grant of powers to
+the government, and in the protection afforded by the government. It is
+impossible, therefore, that a government, under which any considerable
+number of the people, (if indeed any number of the people,) are
+disfranchised and enslaved, can be a republic. A slave government is an
+oligarchy; and one too of the most arbitrary and criminal character.
+
+Strange that men, who have eyes capable of discovering in the
+constitution so many covert, implied and insinuated guaranties of crime
+and slavery, should be blind to the legal import of so open, explicit
+and peremptory a guaranty of freedom, equality and right.
+
+Even if there had really been, in the constitution, two such
+contradictory guaranties, as one of liberty or republicanism in every
+state of the Union, and another of slavery in every state where one
+portion of the people might succeed in enslaving the rest, one of these
+guaranties must have given way to the other--for, being plainly
+inconsistent with each other, they could not have stood together. And it
+might safely have been left either to legal or to moral rules to
+determine which of the two should prevail--whether a provision to
+perpetuate slavery should triumph over a guaranty of freedom.
+
+But it is constantly asserted, in substance, that there is "_no
+propriety_" in the general government's interfering in the local
+governments of the states. Those who make this assertion appear to
+regard a state as a single individual, capable of managing his own
+affairs, and of course unwilling to tolerate the intermeddling of
+others. But a state is not an individual. It is made up of large numbers
+of individuals, each and all of whom, amid the intestine mutations and
+strifes to which states are subject, are liable, at some time or other,
+to be trampled upon by the strongest party, and may therefore reasonably
+choose to secure, in advance, some external protection against such
+emergencies, by making reciprocal contracts with other people similarly
+exposed in the neighboring states. Such contracts for mutual succor and
+protection, are perfectly fit and proper for any people who are so
+situated as to be able to contribute to each other's security. They are
+as fit and proper as any other political contracts whatever; and are
+founded on precisely the same principle of combination for mutual
+defence--for what are any of our political contracts and forms of
+government, but contracts between man and man for mutual protection
+against those who may conspire to injure either or all of them? But
+these contracts, fit and proper between all men, are peculiarly
+appropriate to those, who, while they are members of various local and
+subordinate associations, are, at the same time, united for specific
+purposes, under one general government. Such a mutual contract, between
+the people of all the states, is contained in this clause of the
+constitution. And it gives to them all an additional guaranty for their
+liberties.
+
+Those who object to this guaranty, however, choose to overlook all these
+considerations, and then appear to imagine that their notions of
+"propriety" on this point, can effectually expunge the guaranty itself
+from the constitution. In indulging this fancy, however, they
+undoubtedly overrate the legal, and perhaps also the moral effect of
+such superlative fastidiousness; for even if there were "_no propriety_"
+in the interference of the general government to maintain a republican
+form of government in the states, still, the unequivocal pledge to that
+effect, given in the constitution, would nevertheless remain an
+irresistible rebutter to the allegation that the constitution intended
+to guaranty its opposite, slavery, an oligarchy, or a despotism. It
+would, therefore, entirely forbid all those inferences and implications,
+drawn by slaveholders, from those other phrases, which they quote as
+guaranties of slavery.[25]
+
+But the "propriety," and not only the propriety, but the necessity of
+this guaranty, may be maintained on still other grounds.
+
+One of these grounds is, that it would be impossible, consistently with
+the other provisions of the constitution, that the general government
+itself could be republican, unless the state governments were republican
+also. For example. The constitution provides, in regard to the choice of
+congressional representatives, that "the electors in each state shall
+have the qualifications requisite for electors of the most numerous
+branch of the state legislature." It was indispensable to the internal
+quiet of each state, that the same body of electors, who should
+participate in the suffrage of the state governments, should participate
+also in the suffrage of the national one--and _vice versa_, that those
+who should participate in the national suffrage, should also participate
+in that of the state. If the general and state constitutions had each a
+different body of electors within each state, it would obviously give
+rise at once to implacable and irreconcilable feuds, that would result
+in the overthrow of one or the other of the governments within the
+state. Harmony or inveterate conflict was the only alternative. As
+conflict would necessarily result in the destruction of one of the
+governments, harmony was the only mode by which both could be preserved.
+And this harmony could be secured only by giving to the same body of
+electors, suffrage in both the governments.
+
+If, then, it was indispensable to the existence and authority of both
+governments, within the territory of each state, that the same body, and
+only the same body of electors, that were represented in one of the
+governments, should be represented in the other, it was clearly
+indispensable, in order that the national one should be republican, that
+the state governments should be republican also. Hence the interest
+which the nation at large have in the republicanism of each of the state
+governments.
+
+It being necessary that the suffrage under the national government,
+within each state, should be the same as for the state government, it is
+apparent that unless the several state governments were all formed on
+one general plan, or unless the electors of all the states were united
+in the acknowledgement of some general controlling principle, applicable
+to both governments, it would be impossible that they could unite in the
+maintenance of a general government that should act in harmony with the
+state governments; because the same body of electors, that should
+support a despotic government in the state, could not consistently or
+cordially unite, or even unite at all, in the support of a republican
+government for the nation. If one portion of the state governments
+should be republican, like Vermont, where suffrage is open to all--and
+another portion should be oligarchies, like South Carolina, and the
+other slave states--another portion limited monarchies, like
+England--another portion ecclesiastical, like that of the Pope of Rome,
+or that of the ancient Jews--and another portion absolute despotisms,
+like that of Nicholas, in Russia, or that of Francia, in Paraguay,--and
+the same body, and only the same body, of electors, that sustained each
+of these governments at home, should be represented in the national
+government, each state would send into the national legislature the
+representatives of its own peculiar system of government; and the
+national legislature, instead of being composed of the representatives
+of any one theory, or principle of government, would be made up of the
+representatives of all the various theories of government that prevailed
+in the different states--from the extreme of democracy to the extreme of
+despotism. And each of these various representatives would be obliged to
+carry his local principles into the national legislature, else he could
+not retain the confidence of his peculiar constituents. The consequence
+would be, that the national legislature would present the spectacle of a
+perfect Babel of discordant tongues, elements, passions, interests and
+purposes, instead of an assembly united for the accomplishment of any
+agreed or distinct object.
+
+Without some distinct and agreed object as a bond of union, it would
+obviously be impracticable for any general union of the whole people to
+subsist; and that bond of union, whatever it be, must also harmonize
+with the principles of each of the state governments, else there would
+be a collision between the general and state governments.
+
+Now the great bond of union, agreed upon in the general government, was
+"the rights of man"--expressed in the national constitution by the terms
+"liberty and justice." What other bond could have been agreed upon? On
+what other principle of government could they all have united? Could
+they have united to sustain the divine right of kings? The feudal
+privileges of nobles? Or the supremacy of the Christian, Mahometan, or
+any other church? No. They all denied the divine right of kings, and the
+feudal rights of nobles; and they were of all creeds in religion. But
+they were agreed that all men had certain natural, inherent, essential
+and inalienable rights, among which were life, liberty and the pursuit
+of happiness; and that the preservation of these rights was the
+legitimate purpose of governments among men. They had avowed this
+principle before the world, had fought for it, and successfully defended
+it, against the mightiest power in the world. They had filled the world
+with its glory; and it, in turn, had filled the world with theirs. It
+had also gathered, and was then gathering, choice spirits, and large
+numbers of the oppressed from other nations unto them. And this
+principle--in which were involved the safety, interests and rights of
+each and every one of "the people," who were to unite for the formation
+of the government--now furnished a bond of union, that was at once
+sufficient, legitimate, consistent, honorable, of universal application,
+and having more general power over the hearts and heads of all of them,
+than any other that could be found to hold them together. It comported
+with their theory of the true objects of government. This principle,
+therefore, they adopted as the corner-stone of their national
+government; and, as a matter of necessity, all other things, on which
+this new government was in any degree to depend, or which was to depend
+in any degree upon this government, were then made to conform to this
+principle. Hence the propriety of the power given to the general
+government, of "guaranteeing to every state in the Union a republican
+form of government." Had not this power been given to the general
+government, the majorities in each state might have converted the state
+governments into oligarchies, aristocracies, monarchies or despotisms,
+that should not only have trampled upon the minorities, and defeated
+their enjoyment of the national constitution, but also introduced such
+factions and feuds into the national governments, as would have
+distracted its councils, and prostrated its power.
+
+But there were also motives of a pecuniary and social, as well as
+political nature, that made it proper that the nation should guarantee
+to the states a republican form of government.
+
+Commerce was to be established between the people of the different
+states. The commerce of a free people is many times more valuable than
+that of slaves. Freemen produce and consume vastly more than slaves.
+They have therefore more to buy and more to sell. Hence the free states
+have a direct pecuniary interest in the civil freedom of all the other
+states. Commerce between free and slave states is not reciprocal or
+equal. Who can measure the increase that would have been made to the
+industry and prosperity of the free states, if all the slaves in the
+country had been freemen, with all the wants and energies of freemen?
+And their masters had had all the thrift, industry, frugality and
+enterprise of men who depend upon their own labor, instead of the labor
+of slaves, for their prosperity? Great Britain thought it policy to
+carry on a seven years' war against us principally to secure to herself
+the control and benefits of the commerce of three millions of people and
+their posterity. But we now have nearly or quite the same number of
+slaves within our borders, and yet we think that commerce with them and
+their posterity is a matter with which we have no concern; that there is
+"_no propriety_" in that provision of the national constitution, which
+requires that the general government--which we have invested with the
+exclusive control of all commerce among the several states--should
+secure to these three millions the right of traffic with their fellow
+men, and to their fellow men the right of traffic with them, against the
+impertinent usurpations and tyranny of subordinate governments, that
+have no constitutional right to interfere in the matter.
+
+Again. The slave states, in proportion to their population, contribute
+nothing like an equal or equitable share to the aggregate of national
+wealth. It would probably be within the truth to say that, in proportion
+to numbers, the people of the free states have contributed ten times as
+much to the national wealth as the people of the slave states. Even for
+such wealth as the culture of their great staple, cotton, has added to
+the nation, the south are indebted principally, if not entirely, to the
+inventive genius of a single northern man.[26] The agriculture of the
+slave states is carried on with rude and clumsy implements; by listless,
+spiritless and thriftless laborers; and in a manner speedily to wear out
+the natural fertility of the soil, which fertility slave cultivation
+seldom or never replaces. The mechanic arts are comparatively dead among
+them. Invention is utterly dormant. It is doubtful whether either a
+slave or a slave holder has ever invented a single important article of
+labor-saving machinery since the foundation of the government. And they
+have hardly had the skill or enterprise to apply any of those invented
+by others. Who can estimate the loss of wealth to the nation from these
+causes alone? Yet we of the free states give to the south a share in the
+incalculable wealth produced by our inventions and labor-saving
+machinery, our steam engines, and cotton gins, and manufacturing
+machinery of all sorts, and yet say at the same time that we have no
+interest, and that there is "no propriety" in the constitutional
+guaranty of that personal freedom to the people of the south, which
+would enable them to return us some equivalent in kind.
+
+For the want, too, of an enforcement of this guaranty of a republican
+form of government to each of the states, the population of the country,
+by the immigration of foreigners, has no doubt been greatly hindered.
+Multitudes almost innumerable, who would have come here, either from a
+love of liberty, or to better their conditions, and given the country
+the benefit of their talents, industry and wealth, have no doubt been
+dissuaded or deterred by the hideous tyranny that rides triumphant in
+one half of the nation, and extends its pestiferous and detested
+influence over the other half.
+
+_Socially_, also, we have an interest in the freedom of all the states.
+We have an interest in free personal intercourse with all the people
+living under a common government with ourselves. We wish to be free to
+discuss, with any and all of them, all the principles of liberty and all
+the interests of humanity. We wish, when we meet a fellow man, to be at
+liberty to speak freely with him of his and our condition; to be at
+liberty to do him a service; to advise with him as to the means of
+improving his condition; and, if need be, to ask a kindness at his
+hands. But all these things are incompatible with slavery. Is this such
+an union as we bargained for? Was it "nominated in the bond," that we
+should be cut off from these the common rights of human nature? If so,
+point to the line and letter, where it is so written. Neither of them
+are to be found. But the contrary is expressly guarantied against the
+power of both the governments, state and national; for the national
+government is prohibited from passing any law abridging the freedom of
+speech and the press, and the state governments are prohibited from
+maintaining any other than a republican form of government, which of
+course implies the same freedom.
+
+The nation at large have still another interest in the republicanism of
+each of the states; an interest, too, that is indicated in the same
+section in which this republicanism is guarantied. This interest results
+from the fact that the nation are pledged to "protect" each of the
+states "against domestic violence." Was there no account taken--in
+reference either to the cost or the principle of this undertaking--as to
+what might be the character of the state governments, which we are thus
+pledged to defend against the risings of the people? Did we covenant, in
+this clause, to wage war against the rights of man? Did we pledge
+ourselves that those, however few, who might ever succeed in getting the
+government of a state into their hands, should thenceforth be recognized
+as the legitimate power of the state, and be entitled to the whole force
+of the general government to aid them in subjecting the remainder of the
+people to the degradation and injustice of slavery? Or did the nation
+undertake only to guarantee the preservation of "a republican form of
+government" against the violence of those who might prove its enemies?
+The reason of the thing, and the connexion, in which the two provisions
+stand in the constitution, give the answer.
+
+We have yet another interest still, and that no trivial one, in the
+republicanism of the state governments; an interest indicated, too, like
+the one last mentioned, in the very section in which this republicanism
+is assured. It relates to the defence against invasion. The general
+government is pledged to defend each of the states against invasion. Is
+it a thing of no moment, whether we have given such a pledge to free or
+to slave states? Is there no difference in the cost and hazard of
+defending one or the other? Is it of no consequence to the expense of
+life and money, involved in this undertaking, whether the people of the
+state invaded shall be united, as freemen naturally will be, as one man
+against the enemy? Or whether, as in slave states, half of them shall be
+burning to join the enemy, with the purpose of satisfying with blood the
+long account of wrong that shall have accrued against their oppressors?
+Did Massachusetts--who during the war of the revolution furnished more
+men for the common defence, than all the six southern states
+together--did she, immediately on the close of that war, pledge herself,
+as the slave holders would have it, that she would lavish her life in
+like manner again, for the defence of those whose wickedness and tyranny
+in peace should necessarily multiply their enemies and make them
+defenceless in war? If so, on what principle, or for what equivalent,
+did she do it? Did she not rather take care that the guaranty for a
+republican government should be inserted in the same paragraph with that
+for protection against invasion, in order that both the principle and
+the extent of the liability she incurred, might distinctly appear?
+
+The nation at large, then, as a political community under the
+constitution, have both interests and rights, and both of the most vital
+character, in the republicanism of each of the state governments. The
+guaranty given by the national constitution, securing such a government
+to each of the states, is therefore neither officious nor impertinent.
+On the contrary, this guaranty was a _sine qua non_ to any national
+contract of union; and the enforcement of it is equally indispensable,
+if not to the continuance of the union at all, certainly to its
+continuance on any terms that are either safe, honorable or equitable
+for the north.
+
+This guaranty, then, is not idle verbiage. It is full of meaning. And
+that meaning is not only fatal to slavery itself, but it is fatal also
+to all those pretences, constructions, surmises and implications, by
+which it is claimed that the national constitution sanctions, legalizes,
+or even tolerates slavery.
+
+[Footnote 18: 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.]
+
+[Footnote 19: "Laws are construed strictly to save a right."--_Whitney
+et al._ vs. _Emmett et al., 1 Baldwin, C.C.R._ 316.
+
+"No law will make a construction 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._]
+
+[Footnote 20: In the convention that framed the constitution, when this
+clause was under discussion, "servants" were spoken of as a distinct
+class from "slaves." For instance, "Mr. Butler and Mr. Pickney moved to
+require 'fugitive slaves and servants to be delivered up like
+criminals.'" Mr. Sherman objected to delivering up either slaves or
+servants. He said he "saw no more propriety in the public seizing and
+surrendering a slave or servant, than a horse."--_Madison Papers, p.
+1447-8._
+
+The language finally adopted shows that they at last agreed to deliver
+up "_servants_," but _not "slaves"_--for as the word "servant" does not
+mean "slave," the word "service" does not mean slavery.
+
+These remarks in the convention are quoted, not because the intentions
+of the convention are of the least legal consequence whatever; but to
+rebut the silly arguments of those who pretend that the convention, and
+not the people, adopted the constitution--and that the convention did
+not understand the legal difference between the word "servant" and
+"slave," and therefore used the word "service," in this clause, as
+meaning slavery.]
+
+[Footnote 21: Gibbons _vs._ Ogden.--(9 Wheaton, 1.)]
+
+[Footnote 22: "The government (of the U.S.) proceeds directly from the
+people; is 'ordained and established' in the name of the
+people."--_M'Culloch_ vs. _Maryland_, 4 _Wheaton_, 403.
+
+"The government of the Union is emphatically and truly, a government of
+the people; and in form and in substance it emanates from them. Its
+powers are granted by them, and are to be exercised directly on them,
+and for their benefit."--_Same_, pages 404, 405.
+
+"The constitution of the United States was ordained and established, not
+by the United States in their sovereign capacities, but emphatically, as
+the preamble of the constitution declares, by 'the people of the United
+States.'"--_Martin_ vs. _Hunter's lessee_, 1 _Wheaton_, 324.]
+
+[Footnote 23: That is, male persons. The constitution, whenever it uses
+the pronoun, in speaking of the president, uniformly uses the masculine
+gender--from which it may be inferred that male persons only were
+intended to be made eligible to the office.]
+
+[Footnote 24: Somerset was not a citizen of England, or entitled, as
+such, to the protection of the English law. The privilege of the writ of
+_habeas corpus_ was granted to him on the ground simply of his being a
+man.]
+
+[Footnote 25: From whom come these objections to the "propriety" of the
+general government's interfering to maintain republicanism in the
+states? Do they not come from those who have ever hitherto claimed that
+the general government was bound to interfere to _put down
+republicanism_? And that those who were _republicans_ at the north,
+might with perfect "propriety" and consistency, pledge their assistance
+to the despots of the south, to sustain the worst, the meanest and most
+atrocious of tyrannies? Yes, from the very same. To interfere to assist
+one half of the people of a state in the cowardly, cruel and fiendish
+work of crushing the other half into the earth, corresponds precisely
+with their chivalrous notions of "propriety;" but it is insufferable
+officiousness for them to form any political compacts that will require
+them to interfere to protect the weak against the tyranny of the strong,
+or to maintain justice, liberty, peace and freedom.]
+
+[Footnote 26: Eli Whitney.]
+
+
+
+
+CHAPTER IX.
+
+THE INTENTIONS OF THE CONVENTION.
+
+
+The intentions of the framers of the constitution, (if we could have, as
+we cannot, any _legal_ knowledge of them, except from the words of the
+constitution,) have nothing to do with fixing the legal meaning of the
+constitution. That convention were not delegated to adopt or establish a
+constitution; but only to consult, devise and recommend. The instrument,
+when it came from their hands, was a mere proposal, having no legal
+force or authority. It finally derived all its validity and obligation,
+as a frame of government, from its adoption by the people at large.[27]
+Of course the intentions of the people at large are the only ones, that
+are of any importance to be regarded in determining the legal meaning of
+the instrument. And their intentions are to be gathered entirely from
+the words, which they adopted to express them. And their intentions must
+be presumed to be just what, and only what the words of the instrument
+_legally_ express. In adopting the constitution, the people acted as
+legislators, in the highest sense in which that word can be applied to
+human lawgivers. They were establishing a law that was to govern both
+themselves and their government. And their intentions, like those of
+other legislators, are to be gathered from the words of their
+enactments. Such is the dictate of both law and common sense.[28] The
+instrument had been reported by their committee, the convention. But the
+people did not ask this committee what was the legal meaning of the
+instrument reported. They adopted it, judging for themselves of its
+legal meaning, as any other legislative body would have done. The people
+at large had not even an opportunity of consultation with the members of
+the convention, to ascertain their opinions. And even if they had
+consulted them, they would not have been bound at all by their opinions.
+But being unable to consult them, they were compelled to adopt or reject
+the instrument, on their own judgment of its meaning, without any
+reference to the opinions of the convention. The instrument, therefore,
+is now to be regarded as expressing the intentions of the people at
+large; and not the intentions of the convention, if the convention had
+any intentions differing from the meaning which the law gives to the
+words of the instrument.
+
+But why do the partizans of slavery resort to the debates of the
+convention for evidence that the constitution sanctions slavery? Plainly
+for no other reason than because the words of the instrument do not
+sanction it. But can the intentions of that convention, attested only by
+a mere skeleton of its debates, and not by any impress upon the
+instrument itself, add any thing to the words, or to the legal meaning
+of the words of the constitution? Plainly not. Their intentions are of
+no more consequence, in a legal point of view, than the intentions of
+any other equal number of the then voters of the country. Besides, as
+members of the convention, they were not even parties to the instrument;
+and no evidence of their intentions, at _that_ time, is applicable to
+the case. They became parties to it only by joining with the rest of the
+people in its subsequent adoption; and they themselves, equally with
+the rest of the people, must then be presumed to have adopted its legal
+meaning, and that alone--notwithstanding any thing they may have
+previously said. What absurdity then is it to set up the opinions
+expressed in the convention, and by a few only of its members, in
+opposition to the opinions expressed by the whole people of the country,
+in the constitution itself.
+
+But notwithstanding the opinions expressed in the convention by some of
+the members, we are bound, as a matter of law, to presume that the
+convention itself, in the aggregate, had no intention of sanctioning
+slavery--and why? Because, after all their debates, they agreed upon an
+instrument that did not sanction it. This was confessedly the result in
+which all their debates terminated. This instrument is also the _only_
+authentic evidence of their intentions. It is subsequent in its date to
+all the other evidence. It comes to us, also, as none of the other
+evidence does, _signed with their own hands_. And is this to be set
+aside, and the constitution itself to be impeached and destroyed, and
+free government overturned, on the authority of a few meagre snatches of
+argument, intent or opinion, uttered by a few only of the members;
+jotted down by one of them, (Mr. Madison,) merely for his own
+convenience, or from the suggestions of his own mind; and only reported
+to us fifty years afterwards by a posthumous publication of his papers?
+If any thing could excite the utter contempt of the people of this
+nation for the miserable subterfuges, to which the advocates of slavery
+resort, it would seem that their offering such evidence as this in
+support of their cause, must do it. And yet these, and such as these
+mere fragments of evidence, all utterly inadmissible and worthless in
+their kind, for any legal purpose, constitute the warp and the woof, the
+very _sine qua non_ of the whole argument for slavery.
+
+Did Mr. Madison, when he took his oath of office, as president of the
+United States, swear to support these scraps of debate, which he had
+filed away among his private papers?--Or did he swear to support that
+written instrument, which the people of the country had agreed to, and
+which was known to them, and to all the world, as the constitution of
+the United States.[29]
+
+But even if the unexpressed intentions, which these notes of debate
+ascribe to certain members, had been participated in by the whole
+convention, we should have had no right to hold the people of the
+country at large responsible for them. _This convention sat with closed
+doors_, and it was not until near fifty years after the people had
+adopted the constitution itself, that these private intentions of the
+framers authentically transpired. And even now all the evidence
+disclosed implicates, _directly and absolutely_, but few of the
+members--not even all from the slaveholding states. The intentions of
+all the rest, we have a right to presume, concurred with their votes and
+the words of the instrument; and they had therefore no occasion to
+express contrary ones in debate.
+
+But suppose that _all_ the members of the convention had participated in
+these intentions--what then? Any forty or fifty men, like those who
+framed the constitution, may now secretly concoct another, that is
+honest in its terms, and yet in secret conclave confess to each other
+the criminal objects they intend to accomplish by it, if its honest
+character should enable them to secure for it the adoption of the
+people.--But if the people should adopt such constitution, would they
+thereby adopt any of the criminal and secret purposes of its authors? Or
+if the guilty confessions of these conspirators should be revealed fifty
+years afterwards, would judicial tribunals look to them as giving the
+government any authority for violating the legal meaning of the words of
+such constitution, and for so construing them as to subserve the
+criminal and shameless purposes of its originators?
+
+The members of the convention, as such, were the mere scriveners of the
+constitution; and their individual purposes, opinions or expressions,
+then uttered in secret cabal, though now revealed, can no more be
+evidence of the intentions of the people who adopted the constitution,
+than the secret opinions or expressions of the scriveners of any other
+contract can be offered to prove the intentions of the true parties to
+such contract. As framers of the constitution, the members of the
+convention gave to it no validity, meaning, or legal force. They simply
+drafted it, and offered it, such as it legally might be, to the people
+for their adoption or rejection. The people, therefore, in adopting it,
+had no reference whatever to the opinions of the convention. They had no
+authentic evidence of what those opinions were. They looked simply at
+the instrument. And they adopted even its legal meaning by a bare
+majority. If the instrument had contained any tangible sanction of
+slavery, the people would sooner have had it burned by the hands of the
+common hangman, than they would have adopted it, and thus sold
+themselves as pimps to slavery, covered as they were with the scars they
+had received in fighting the battles of freedom. And the members of the
+convention knew that such was the feeling of a large portion of the
+people; and for that reason, if for no other, they dared insert in the
+instrument no legal sanction of slavery. They chose rather to trust to
+their craft and influence to corrupt the government, (of which they
+themselves expected to be important members,) after the constitution
+should have been adopted, rather than ask the necessary authority
+directly from the people. And the success they have had in corrupting
+the government, proves that they judged rightly in presuming that the
+government would be more flexible than the people.
+
+For other reasons, too, the people should not be charged with designing
+to sanction any of the secret intentions of the convention. When the
+states sent delegates to the convention, no avowal was made of any
+intention to give any national sanction to slavery. The articles of
+confederation had given none; the then existing state constitutions gave
+none; and it could not have been reasonably anticipated by the people
+that any would have been either asked for or granted in the new
+constitution. If such a purpose had been avowed by those who were at the
+bottom of the movement, the convention would doubtless never have been
+held. The avowed objects of the convention were of a totally different
+character. Commercial, industrial and defensive motives were the
+prominent ones avowed. When, then, the constitution came from the hands
+of such a convention, unstained with any legal or tangible sanction of
+slavery, were the people--who, from the nature of the case, could not
+assemble to draft one for themselves--bound either to discard it, or
+hold themselves responsible for all the secret intentions of those who
+had drafted it? Had they no power to adopt its legal meaning, and that
+alone! Unquestionably they had the power; and, as matter of law, as well
+as fact, it is equally unquestionable that they exercised it. Nothing
+else than the constitution, as a legal instrument, was offered to them
+for their adoption. Nothing else was legally before them that they could
+adopt. Nothing else, therefore, did they adopt.
+
+This alleged design, on the part of the convention, to sanction slavery,
+is obviously of no consequence whatever, unless it can be transferred to
+the people who adopted the constitution. Has any such transfer ever been
+shown? Nothing of the kind. It may have been known among politicians;
+and may have found its way into some of the state conventions. But there
+probably is not a little of evidence in existence, that it was generally
+known among the mass of the people. And, in the nature of things, it was
+nearly impossible that it should have been known by them. The national
+convention had sat with closed doors. Nothing was known of their
+discussions, except what was personally reported by the members. Even
+the discussions in the _state_ conventions could not have been known to
+the people at large; certainly not until after the constitution had been
+ratified by those conventions. The ratification of the instrument, by
+those conventions, followed close on the heels of their
+discussions.--The population meanwhile was thinly scattered over the
+country. The public papers were few, and small, and far between. They
+could not even make such reports of the discussions of public bodies, as
+newspapers now do. The consequence must have been that the people at
+large knew nothing of the intentions of the framers of the constitution,
+but from its words, until after it was adopted. Nevertheless, it is to
+be constantly borne in mind, that even if the people had been fully
+cognizant of those intentions, they would not therefore have adopted
+them, or become at all responsible for them, so long as the intentions
+themselves were not incorporated in the instrument. Many selfish,
+ambitious and criminal purposes, not expressed in the constitution, were
+undoubtedly intended to be accomplished by one and another of the
+thousands of unprincipled politicians, that would naturally swarm around
+the birth-place, and assist at the nativity of a new and splendid
+government. But the people are not therefore responsible for those
+purposes; nor are those purposes, therefore, a part of the constitution;
+nor is its language to be construed with any view to aid their
+accomplishment.
+
+But even if the people intended to sanction slavery by adopting the
+intentions of the convention, it is obvious that they, like the
+convention, intended to use no language that should legally convey that
+meaning, or that should necessarily convict them of that intention in
+the eyes of the world.--They, at least, had enough of virtuous shame to
+induce them to conceal this intention under the cover of language, whose
+legal meaning would enable them always to aver,
+
+   "Thou canst not say I did it."
+
+The intention, therefore, that the judiciary should construe certain
+language into an authority for slavery, when such is not the legal
+meaning of the language itself, cannot be ascribed to the people, except
+upon the supposition that the people presumed their judicial tribunals
+would have so much less of shame than they themselves, as to _volunteer_
+to carry out these their secret wishes, by going beyond the words of the
+constitution they should be sworn to support, and violating all legal
+rules of construction, and all the free principles of the instrument. It
+is true that the judiciary, (whether the people intended it or not,)
+have proved themselves to be thus much, at least, more shameless than
+the people, or the convention. Yet that is not what ought to have been
+expected of judicial tribunals. And whether such were really the
+intention of the convention, or the people, is, at least a matter of
+conjecture and history, and not of law, nor of any evidence cognizable
+by any judicial tribunal.
+
+Why should we search at all for the intentions, either of the
+convention, or of the people, beyond the words which both the convention
+and the people have agreed upon to express them? What is the object of
+written constitutions, and written statutes, and written contracts? Is
+it not that the meaning of those who make them may be known with the
+most absolute precision of which language is capable? Is it not to get
+rid of all the fraud, and uncertainty, and disagreements of oral
+testimony? Where would be our constitution, if, instead of its being a
+written instrument, it had been merely agreed upon orally by the members
+of the convention? And by them only orally reported to the people? And
+only this oral report of it had been adopted by the people? And all our
+evidence of what it really was, had rested upon reports of what Mr. A,
+and Mr. B, members of the convention, had been heard to say? Or upon Mr.
+Madison's notes of the debates of the convention? Or upon the oral
+reports made by the several members to their respective constituents, or
+to the respective state conventions? Or upon flying reports of the
+opinions which a few individuals, out of the whole body of the people,
+had formed of it when they adopted it? No two of the members of the
+convention would probably have agreed in their representations of what
+the constitution really was. No two of the people would have agreed in
+their understanding of the constitution when they adopted it. And the
+consequence would have been that we should really have had no
+constitution at all. Yet there is as much ground, both in reason and in
+law, for thus throwing aside the _whole_ of the written instrument, and
+trusting entirely to these other sources for evidence of what any part
+of the constitution really is, as there is for throwing aside those
+particular portions of the written instrument, which bear on slavery,
+and attempting to supply their place from such evidence as these other
+sources may chance to furnish. And yet, to throw aside the written
+instrument, so far as its provisions are prohibitory of slavery, and
+make a new constitution on that point, out of other testimony, is the
+only means, confessedly the only means, by which slavery can be made
+constitutional.
+
+And what is the object of resorting to these flying reports for
+evidence, on which to change the meaning of the constitution? Is it to
+change the instrument from a dishonest to an honest one? from an unjust
+to a just one? No. But directly the reverse--and solely that dishonesty
+and injustice may be carried into effect. A purpose, for which no
+evidence of any kind whatever could be admitted in a court of justice.
+
+Again. If the principle be admitted, that the meaning of the
+constitution can be changed, on proof being made that the scriveners or
+framers of it had secret and knavish intentions, which do not appear on
+the face of the instrument, then perfect license is given to the
+scriveners of constitutions to contrive any secret scheme of villainy
+they may please, and impose it upon the people as a system of
+government, under cover of a written instrument that is so plainly
+honest and just in its terms, that the people readily agree to it. Is
+such a principle to be admitted in a country where the people claim the
+prerogative of establishing their own government, and deny the right of
+any body to impose a government upon them, either by force, or fraud, or
+against their will?
+
+Finally. The constitution is a contract; a written contract, consisting
+of a certain number of precise words, to which, and to which only, all
+the parties to it have, in theory, agreed. Manifestly neither this
+contract, nor the meaning of its words, can be changed, without the
+consent of all the parties to it. Nor can it be changed on a
+representation, to be made by any number of them less than the whole,
+that they intended any thing different from what they have said. To
+change it, on the representation of a part, without the consent of the
+rest, would be a breach of contract as to all the rest. And to change
+its _legal meaning_, without their consent, would be as much a breach of
+the contract as to change its words. If there were a single honest man
+in the nation, who assented, in good faith, to the honest and legal
+meaning of the constitution, it would be unjust and unlawful to change
+the meaning of the instrument so as to sanction slavery, even though
+every other man in the nation should testify that, in agreeing to the
+constitution, he intended that slavery should be sanctioned. If there
+were _not_ a single honest man in the nation, who adopted the
+constitution in good faith, and with the intent that its legal meaning
+should be carried into effect, its legal meaning would nevertheless
+remain the same; for no judicial tribunal could lawfully allow the
+parties to it to come into court and allege their dishonest intentions,
+and claim that they be substituted for the legal meaning of the words of
+the instrument.
+
+[Footnote 27: The Supreme Court say, "The instrument, when it came from
+their hands, (that is, the hands of the convention,) was a mere
+proposal, without obligation or pretension to it." "The people were at
+perfect liberty to accept or reject it; and their act was
+final."--_M'Cullock_ vs. _Maryland_,--4 _Wheaton_ 403-4.]
+
+[Footnote 28: The Supreme Court of the United States say:
+
+"The intention of the instrument must prevail: _this intention must be
+collected from its words_."--_Ogden_ vs. _Saunders_,--12 _Wheaton_, 332.
+
+"The intention of the legislature is to be searched for in the words
+which the legislature has employed to convey it."--_Schr. Paulina's
+Cargo_ vs. _United States_,--7 _Cranch_, 60.]
+
+[Footnote 29: "Elliot's Debates," so often referred to, are, if
+possible, a more miserable authority than Mr. Madison's notes. He seems
+to have picked up the most of them from the newspapers of the day, in
+which they were reported by nobody now probably knows whom. In his
+preface to his first volume, containing the debates in the Massachusetts
+and New York conventions, he says:
+
+"In the compilation of this volume, care has been taken to search into
+contemporary publications, in order to make the work as perfect as
+possible; still, however, the editor is sensible, from the daily
+experience of newspaper reports, of the present time, that the
+sentiments they contain may, in some instances, have been inaccurately
+taken down, and in others, probably too faintly sketched, fully to
+gratify the inquisitive politician." He also speaks of them as "rescued
+from the ephemeral prints of that day, and now, for the first time,
+presented in a uniform and durable form."
+
+In the preface to his second volume, which is devoted to the Virginia
+convention, he says the debates were reported by an able stenographer,
+David Robertson; and then quotes the following from Mr. Wirt, in a note
+to the life of Patrick Henry:
+
+"From the skill and ability of the reporter, there can be no doubt that
+the substance of the debates, as well as their general course, are
+accurately preserved."
+
+In his preface to the third volume, embracing the North Carolina and
+Pennsylvania conventions, he says:
+
+"The _first_ of the two North Carolina conventions is contained in this
+volume; the _second_ convention, it is believed, _was neither
+systematically reported nor printed_." "The debates in the Pennsylvania
+convention, that have been preserved, it appears, _are on one side
+only_; a search into the contemporary publications of the day, has been
+unsuccessful to furnish us with the other side of the question."
+
+In his preface to the fourth volume, he says:
+
+"In compiling the opinions, on constitutional questions, delivered in
+congress, by some of the most enlightened senators and representatives,
+the files of the New York and Philadelphia newspapers, from 1789 to
+1800, had to be relied on; from the latter period to the present, the
+National Intelligencer is the authority consulted for the desired
+information."
+
+It is from such stuff as this, collected and published thirty-five and
+forty years after the constitution was adopted--stuff very suitable for
+constitutional dreams to be made of--that our courts and people now make
+their constitutional law, in preference to adopting the law of the
+constitution itself. In this way they manufacture law strong enough to
+bind three millions of men in slavery.]
+
+
+
+
+CHAPTER X.
+
+THE PRACTICE OF THE GOVERNMENT.
+
+
+The practice of the government, under the constitution, has not altered
+the legal meaning of the instrument. It means now what it did before it
+was ratified, when it was first offered to the people for their adoption
+or rejection. One of the advantages of a written constitution is, that
+it enables the people to see what its character is before they adopt it;
+and another is, that it enables them to see, after they have adopted it,
+whether the government adheres to it, or departs from it. Both these
+advantages, each of which is indispensable to liberty, would be entirely
+forfeited, if the legal meaning of a written constitution were one thing
+when the instrument was offered to the people for their adoption, and
+could then be made another thing by the government after the people had
+adopted it.
+
+It is of no consequence, therefore, what meaning the government _have_
+placed upon the instrument; but only what meaning they were _bound to
+place upon it_ from the beginning.
+
+The only question, then, to be decided, is, what was the meaning of the
+constitution, _as a legal instrument_, when it was first drawn up, and
+presented to the people, and before it was adopted by them?
+
+To this question there certainly can be but one answer.--There is not
+room for a doubt or an argument, on that point, in favor of slavery. The
+instrument itself is palpably a free one throughout, in its language,
+its principles, and all its provisions. As a legal instrument, there is
+no trace of slavery in it. It not only does not sanction slavery, but it
+does not even recognize its existence. More than this, it is palpably
+and wholly incompatible with slavery. It is also the supreme law of the
+land, in contempt of any state constitution or law that should attempt
+to establish slavery.
+
+Such was the character of the constitution when it was offered to the
+people, and before it was adopted. And if such was its character then,
+such is its character still. It cannot have been changed by all the
+errors and perversions, intentional or unintentional, of which the
+government may have since been guilty.
+
+
+
+
+CHAPTER XI.
+
+THE UNDERSTANDING OF THE PEOPLE.
+
+
+Although the inquiry may be of no legal importance, it may nevertheless
+be one pertinent to the subject, whether it be matter of _history_
+even--to say nothing of legal proof--that the _people_ of the country
+did really understand or believe that the constitution sanctioned
+slavery? Those who make the assertion, are bound to prove it. The
+presumption is against them. Where is their contrary history?
+
+They will say that a part of the people were actually slaveholders, and
+that it is unreasonable to suppose they would have agreed to the
+constitution, if they had understood it to be a free one.
+
+The answer to this argument is, that the actual slaveholders were few in
+number compared with the whole people; comprising probably not more than
+one-eighth or one-sixth of the voters, and one-fortieth or one-thirtieth
+of the whole population. They were so few as to be manifestly incapable
+of maintaining any separate political organization; or even of holding
+their slave property, except under the sufferance, toleration and
+protection of the non-slaveholders. They were compelled, therefore, to
+agree to any political organization, which the non-slaveholders should
+determine on. This was at that time the case even in the strongest of
+the slaveholding states themselves. In all of them, without exception,
+the slaveholders were either obliged to live, or from choice did live,
+under free constitutions. They, of course, held their slave property in
+defiance of their constitutions. They were enabled to do this through
+the corrupting influence of their wealth and union. Controlling a large
+proportion of the wealth of their states, their social and political
+influence was entirely disproportionate to their numbers. They could act
+in concert. They could purchase talent by honors, offices and money.
+Being always united, while the non-slaveholders were divided, they could
+turn the scale in elections, and fill most of the offices with
+slaveholders. Many of the non-slaveholders doubtless were poor,
+dependent and subservient, (as large portions of the non-slaveholders
+are now in the slaveholding states,) and lent themselves to the support
+of slavery almost from necessity. By these, and probably by many other
+influences that we cannot now understand, they were enabled to maintain
+their hold upon their slave property in defiance of their constitutions.
+It is even possible that the slaveholders themselves did not choose to
+have the subject of slavery mentioned in their constitutions; that they
+were so fully conscious of their power to corrupt and control their
+governments, that they did not regard any constitutional provision
+necessary for their security; and that out of mere shame at the
+criminality of the thing, and its inconsistency with all the principles
+the country had been fighting for and proclaiming, they did not wish it
+to be named.
+
+But whatever may have been the cause of the fact, the fact itself is
+conspicuous, that from some cause or other, either with the consent of
+the slaveholders, or in defiance of their power, the constitutions of
+every one of the thirteen states were at that time free ones.
+
+Now is it not idle and useless to pretend, when even the strongest
+slaveholding states had free constitutions--when not one of the separate
+states, acting for itself, would have any but a free constitution--that
+the whole thirteen, when acting in unison, should concur in establishing
+a slaveholding one? The idea is preposterous. The single fact that all
+the state constitutions were at that time free ones, scatters for ever
+the pretence that the majority of the people of all the states either
+intended to establish, _or could have been induced to establish_, any
+other than a free one for the nation. Of course it scatters also the
+pretence that they believed or understood that they were establishing
+any but a free one.
+
+There very probably may have been a general belief among the people,
+that slavery would for a while live on, on sufferance; that the
+government, until the nation should have become attached to the
+constitution, and cemented and consolidated by the habit of union, would
+be too weak, and too easily corrupted by the innumerable and powerful
+appliances of slaveholders, to wrestle with and strangle slavery. But to
+suppose that the nation at large did not look upon the constitution as
+designed to destroy slavery, whenever its principles should be carried
+into full effect, is obviously to suppose an intellectual impossibility;
+for the instrument was plain, and the people had common sense; and those
+two facts cannot stand together consistently with the idea that there
+was any general, or even any considerable misunderstanding of its
+meaning.
+
+
+
+
+CHAPTER XII.
+
+THE STATE CONSTITUTIONS OF 1845.
+
+
+Of all the existing state constitutions, (excepting that of Florida,
+which I have not seen,) not one of them contains provisions that are
+sufficient, (or that would be sufficient if not restrained by the
+constitution of the United States,) to authorize the slavery that exists
+in the states. The material deficiency in all of them is, that they
+neither designate, nor give the legislatures any authority to designate
+the persons, who may be made slaves. Without such a provision, all their
+other provisions in regard to slaves are nugatory, simply because their
+application is legally unknown. They would apply as well to whites as to
+blacks, and would as much authorize the enslavement of whites as of
+blacks.
+
+We have before seen that none of the state constitutions, that were in
+existence in 1789, recognized slavery at all. Since that time, four of
+the old thirteen states, viz., Maryland, North Carolina, South Carolina
+and Georgia, have altered their constitutions so as to make them
+recognize slavery; yet not so as to provide for any legal designation of
+the persons to be made slaves.
+
+The constitution of South Carolina has a provision that implies that
+_some_ of the slaves, at least, are "negroes;" but not that all slaves
+are negroes, nor that all negroes are slaves. The provision, therefore,
+amounts to nothing for the purposes of a constitutional designation of
+the persons who may be made slaves.
+
+The constitutions of Tennessee and Louisiana make no direct mention of
+slaves; and have no provisions in favor of slavery, unless the general
+one for continuing existing laws in force, be such a one. But both have
+specific provisions inconsistent with slavery. Both purport to be
+established by "the people;" both have provisions for the writ of
+_habeas corpus_. Indeed, the constitutions of most of the slave states
+have provisions for this writ, which, as has been before shown, denies
+the right of property in man. That of Tennessee declares also "that all
+courts shall be open, and _every man_, for an injury done him in his
+lands, goods, person or reputation, shall have remedy by due course of
+law, and right and justice administered without sale, denial or delay."
+Tennessee also was formerly a part of North Carolina; was set off from
+her while the constitution of North Carolina was a free one. Of course
+there has never been any legal slavery in Tennessee.
+
+The constitutions of the states of Kentucky, Missouri, Arkansas,
+Mississippi, and Alabama, all have provisions about slaves; yet none of
+them tell us who may be slaves. Some of them indeed provide for the
+admission into their state of such persons as are slaves under the laws,
+(which of course means only the _constitutional_ laws,) _of other
+states_. But when we go to those other states, we find that their
+constitutions have made no designation of the persons who may be made
+slaves; and therefore we are as far from finding the actual persons of
+the slaves as we were before.
+
+The principal provision, in the several state constitutions, recognizing
+slavery, is, in substance, this, that the legislature shall have no
+power to _emancipate_ slaves without the consent of their owners, or
+without making compensation. But this provision is of no avail to
+legalize slavery, for slavery must be _constitutionally established_,
+before there can be any legal slaves to be emancipated; and it cannot be
+established without describing the persons who may be made slaves.
+
+Kentucky was originally a part of Virginia, and derived her slaves from
+Virginia. As the constitution of Virginia was always a free one, it gave
+no authority for slavery in that part of the state which is now
+Kentucky. Of course Kentucky never had any legal slavery.
+
+Slavery was positively prohibited in all the states included in the
+Louisiana purchase, by the third article of the treaty of cession--which
+is in these words:--
+
+   Art. 3. "The _inhabitants_" (that is, _all_ the inhabitants,) "of the
+   ceded territory shall be incorporated in the union of the United
+   States, and admitted as soon as possible, _according to the
+   principles of the federal constitution_, to the enjoyment of all the
+   rights, advantages, and immunities of _citizens_ of the United
+   States; and, in the mean time, they shall be maintained and protected
+   in the free enjoyment of their liberty, property, and the religion
+   which they profess."
+
+The cession of Florida to the United States was made on the same terms.
+The words of the treaty, on this point, are as follows:--
+
+   "Art. 6. The _inhabitants_ of the territories, which his Catholic
+   majesty cedes to the United States by this treaty, shall be
+   incorporated in the Union of the United States, as soon as may be
+   consistent with the principles of the federal constitution, and
+   admitted to the enjoyment of all the privileges, rights and
+   immunities of the _citizens_ of the United States."
+
+To allow _any_ of the "inhabitants," included in those treaties, to be
+held as slaves, or denied the rights of citizenship under the United
+States' constitution, is a plain breach of the treaties.
+
+The constitutions of some of the slave states have provisions like this,
+viz., that all laws previously in force, shall remain in force until
+repealed, unless repugnant to this constitution. But I think there is no
+instance, in which the slave acts, then on their statute books, could be
+perpetuated by this provision--and for two reasons; 1st. These slave
+acts were previously unconstitutional, and therefore were not, legally
+speaking, "laws in force."[30] 2d. Every constitution, I think, that has
+this provision, has one or more other provisions that _are_ "repugnant"
+to the slave acts.
+
+[Footnote 30: This principle would apply, as we have before seen, where
+the change was from the _colonial_ to a state government. It would also
+apply to all cases where the change took place, under the constitution
+of the United States, from a _territorial_ to a state government. It
+needs no argument to prove that all our territorial statutes, that have
+purported to authorize slavery, were unconstitutional.]
+
+
+
+
+CHAPTER XIII.
+
+THE CHILDREN OF SLAVES ARE BORN FREE.
+
+
+The idea that the children of slaves are necessarily born slaves, or
+that they necessarily follow that _natural law_ of property, which gives
+the natural increase of property to the owner of the original stock, is
+an erroneous one.
+
+It is a principle of natural law in regard to property, that a calf
+belongs to the owner of the cow that bore it; fruit to the owner of the
+tree or vine on which it grew; and so on. But the principle of _natural
+law_, which makes a calf belong to the owner of the cow, does not make
+the child of a slave belong to the owner of the slave--and why? Simply
+because both cow and calf are _naturally_ subjects of property; while
+neither men nor children are _naturally_ subjects of property. The law
+of nature gives no aid to any thing inconsistent with itself. It
+therefore gives no aid to the transmission of property in man--while it
+does give aid to the transmission of property in other animals and in
+things.
+
+Brute animals and things being _naturally_ subjects of property, there
+are obvious reasons why the natural increase should belong to the owner
+of the original stock. But men, not being _naturally_ subjects of
+property, the law of nature will not transmit any right of property
+acquired in violation of her own authority. The law of nature denies all
+rights not derived from herself. Of course she cannot perpetuate or
+transmit such rights--if rights they can be called.
+
+One important reason why a calf belongs to the owner of the cow that
+bore it, is, _that there is no principle of natural law that can be
+opposed to that ownership_. For the calf is naturally a subject of
+property, and if it were not given to the owner of the cow, it would be
+lawful for any other person to assume the ownership. No wrong would be
+done to the animal by so doing. But as man is not naturally a subject of
+property, and as each separate individual is, on principles of natural
+law, entitled to the control of his own person, it is as much a wrong,
+and as much a violation of natural law, to make a slave of the child of
+a slave, as to make a slave of any other person. The natural rights of
+the child to the control of his own person, rise up, from the moment of
+his birth, in opposition to the transmission to him of any ownership,
+which, in violation of natural law, has been asserted to the parent.
+
+Natural law may be overborne by arbitrary institutions; but she will
+never aid, or perpetuate them. For her to do so, would be to resist, and
+even deny her own authority. It would present the case of a principle
+warring against and overcoming itself. Instead of this, she asserts her
+own authority on the first opportunity. The moment the arbitrary law
+expires by its own limitation, natural law resumes her reign. If,
+therefore, the government declare A to be a slave, natural law may be
+practically overborne by this arbitrary authority; but she will not
+herself perpetuate it beyond the person of A--for that would be acting
+in contradiction to herself.--She will therefore suffer this arbitrary
+authority to expend itself on the person of A, according to the _letter_
+of the arbitrary law; but she will assert her own authority in favor of
+the child of A, to whom the letter of the law enslaving A, does not
+apply.
+
+Slavery is a wrong to each individual enslaved; and not merely to the
+first of a series. Natural law, therefore, as much forbids the enslaving
+of the child, as if the wrong of enslaving the parent had never been
+perpetrated.
+
+Slavery, then, is an arbitrary institution throughout. It depends, from
+first to last, upon the letter of the arbitrary law. Natural law gives
+it no aid, no extension, no new application, under any circumstances
+whatever. Unless, therefore, the letter of the arbitrary law explicitly
+authorize the enslavement of the child, the child is born free, though
+the parent were a slave.
+
+If the views that have already been taken of our written constitutions,
+be correct, no parent has ever yet been legally enslaved in this
+country; and of course no child. If, however, any one thinks he can
+place his finger upon any _constitutional_ law, that has enslaved a
+parent, let him follow that law, and see whether it also expressly
+authorized the enslavement of the child. If it did not, then the child
+would be free.
+
+It is no new principle that the child of a slave would be born free, but
+for an express law to the contrary. Some of the slave codes admit the
+principle--for they have special provisions that the child shall follow
+the condition of the mother; thus virtually admitting that, but for such
+a provision, the child would be free, though the mother were a slave.
+
+Under the constitutions of the states and the United States, it requires
+as explicit and plenary _constitutional_ authority, to make slaves of
+the children of slaves, as it would to make slaves of any body else. Is
+there, in any of the constitutions of this country, any general
+authority given to the governments, to make slaves of whom they please?
+No one will pretend it. Is there, then, any particular authority for
+making slaves of the children of those, who have previously been held in
+slavery? If there be, let the advocates of slavery point it out. If
+there be no such authority, all their statutes declaring that the
+children of slaves shall follow the condition of their mothers, are
+void; and those children are free by force of the law of nature.
+
+This law of nature, that all men are born free, was recognized by this
+country in the Declaration of Independence.--But it was no new principle
+then. Justinian says, "Captivity and servitude are both contrary to the
+law of nature; for by that law all men are born free." But the principle
+was not new with Justinian; it exists in the nature of man, and is as
+old as man--and the race of man generally has acknowledged it. The
+exceptions have been special; the rule general.
+
+The constitution of the United States recognizes the principle that all
+men are born free; for it recognizes the principle that natural birth in
+the country gives citizenship[31]--which of course implies freedom. And
+no exception is made to the rule. Of course all born in the country
+since the adoption of the constitution of the United States, have been
+born free, whether there were, or were not any legal slaves in the
+country before that time.
+
+Even the provisions, in the several state constitutions, that the
+legislatures shall not _emancipate_ slaves, would, if allowed their full
+effect, unrestrained by the constitution of the United States, hold in
+slavery only those who were then slaves; it would do nothing towards
+enslaving their children, and would give the legislatures no authority
+to enslave them.
+
+It is clear, therefore, that, on this principle alone, slavery would now
+be extinct in this country, unless there should be an exception of a few
+aged persons.
+
+[Footnote 31: Art. 2, Sec. 1, Clause 5, "No person, except a _natural
+born_ citizen,* * * * shall be eligible to the office of President."]
+
+
+
+
+
+End of the Project Gutenberg EBook of The Unconstitutionality of Slavery, by
+Lysander Spooner
+
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