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THE

UNCONSTITUTIONALITY OF SLAVERY.

ENIiABGIlO EDITION-.

By lysander SPOONER

PUBLISHED AND FOR SALE EY
BELA MARSH,
14 BROMPIELD STREET, BOSTON.

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In paper covers,  $0.75.
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NOTICES.
HON. WILLIAM H. SEWARD writes to Gerrit Smith concerning it as follows:
" Adbdrn, November 9th, 1855.
My Bsar Sm: I thank you for sending mea copy of Mr, Spooner's treatise. I had
bought a copy of the first edition. It is a very able work, and I wish that it might be uni
versally studied. The writing and publishing of such books is the most effective way of
working out the great reformation which this nation is required to make by the spirit of
humanity. Very sincerely your friend and obedient servant, WILLIAM H. SEWARD.
ThA TTnwnwATiT.K Ofrtht Smith." »
 ess from Mississippi, in the ^end.te., Dec.

11 UNCONSTITUTIONALITY Or SLAVERY.
2d, 1856, (as reported in the Congressional Globe) after describing the book, as " making an
argument iu favor of the Constitutional power of Congress, not only to interfere with, but
to abolish, slavery in the southern States of the Union," said:
" The Senator [Wilson] did not say, — what I am willing to say myself — that the book
is ingeniously written. No mere simpleton could ever have drawn such an argument. If
his premises were admitted, I should say at once that it would be a herculean task to over
turn his argument."
[Although BJr. Brown thus leaves it to be inferred that he thought there might be
some error in the premises, he made no attempt to point out any. It would seem to be
incumbent on him to do so.]
GERRIT SMITH says : " The more I read that admirable, invincible, and matchless ar
gument, wbich Lysander Spooner has made to show the unconstitutionality of slavery, the
more I am pleased with it. He yields nothing but what the legal rules of interpretation
compel him to yield. And why should he make unnecessary concessions in an argument
undertaken in behalf of all that is sacred and vital in the rights of man ? Were I studious
of fame or usefulness, I had rather be the author of this manly, brave, and independent ar
gument against the constitutionality of slavery, than of any other law argument ever writ
ten, either in this age, or in any former age^-either on tills side, or on the other side, of
the Atlantic, Why will not all lawyers read it ? Who of them could read it without being
convinced that slavery is unconstitutional ? "
WENDELL PHILLIPS, without confessing his conviction of its truth, says: *'This
claim (ofthe anti-slavery character ofthe constitution) has received the fuUest investigation
from Mr. Lysander Spooner, who has urged it with all his unrivalled ingenuity, laborious
research, and close logic."
ELIZUR WRIGHT calls it " One ofthe most magnificent constitutional arguments ever
produced in any country. It needs such a work as Mr. Spooner's ou constitutional law, to
make the constitution of the least value to us as a shield of rights."
WILLIAM LLOYD GARRISON, speaking of Part First, and disagreeing to its conclu
sions, on the ground that the words of the constitution do not fully express the intentions
of its authors, yet says : " Hia logic may be faultless, as a mere legal effort. We admit Mr.
Spooner's reasoning to be ingenious; perhaps, as an effort of logic, unanswerable. It im
presses us as the production of a mind equally honest and acute. Its ability, and the im
portance ofthe subject on which it treats, will doubtless secure for it a wide circulation and
a careful perusal."
JOSHUA LEAVITT says, of Part First : '^ It is unanswerable. There will never be an
honest attempt to answer it. Neither priest nor politician, lawyer nor judge, will ever dare
undertake to sunder that iron4inked chain of argument, which runs straight through this
book from beginning to end."
NATHANIEL P. ROGERS, speaking of Part First, and agreeing with some of its posi
tions, and disagreeing with others, says : " It is a splendid essay. If the talent laid out in
it were laid out in the bar, it would make the author distinguished and rich." " This essay
should give the author a name at the Boston bar. It will at the bar of posterity."
SAMUEL E. SEWALL, Esq., says of Part First: — " It merits general attention not
merely ftom the importance of the subject, but from the masterly manner in which it is
handled. It everywhere overflows with thought. We regard it as a great arsenal of legal
weapons to be used in the great contest between liberty and slavery. I hope it will receive
the widest circulation."
J. FULTON, Jr., says of Part First : " Now that I have read it, I feel bound to say

UNCONSTITUTIONALITY OF SLAVERY. Ill
that it is the most clear and luminous production that I have ever read on the subject. It
begins without a line of pre&ce, and ends without a word of apology. It is a solid mass of
the most brilliant argument, unbroken, as it seema to me, by a single flaw, and treads down
as dust everything which haa preceded it upou that subject. Let every friend of the slave
read the work without delay. I believe it is destined to give a new phase to our struggle."
RICHARD HILDRETH says of Part First: " No one can deny to the present work
the merit of great ability and great leajming. If anybody wishes to see this argument
handled in a masterly manner, with .great clearness and plainness, and an array of consti
tutional learning, which, in the hands of most lawyers, would have expanded into at least
three royal octavos, we commend them to Mr. Spooner^s modest pamphlet of one hundred
and fifty pages."
ELIHU BURRITT says: "It evinces a depth of legal erudition, which would do
honor to the first jurist of the age."
The Trite American., (Cortland County, N. Y.,) says: "It is an imperishable and
triumphant work- A law argument that would add to the fame of the most famed jurist,
living or dead."
The Bangor Gazette says : " Itis indeed a masterly argument. No one, unprejudiced ,
who has supposed that that instrument (the constitution) contained guarantees of slavery,
or who has !had doubts upon the point, can rise ftova. the perusal witliout feeling relieved
from the supposition that our great national charter is one of slavery and not of free
dom. And no lawyer can read it without admiring, besides its other great excellences,
the clearness of its style, and its logical precision."
The Hampshire Herald^ (Northampton) says : " It is worthy the most gifted intellect
in the country."
WILLIAM L. CHAPLIN says: "This -effort of Mr. Spooner is a remarkable one in
many respects. It ia unrivalled in the simplicity, clearness, and force of style with which it
is executed. The argument is original, steel-ribbed and triumphant. It bears down all
opposition. Pettifogging, black-letter dullness, and pedantry, special pleading and dema
gogism, all retire before it. If eveay lawyer in the country could have it put into his hands ,
and be induced to study it, as he does his brief, it would alone overthrow slavery. There is
moral force enough in it for that purpose."
The Liberty Press, (Utica,) says* *'¦ The author labors to show, and docs show,
that slavery in this country is unconstitutional, and unsustained by law, either state or
federal," The Granite Freeman 8&yB'. " We wish every voter in the Union could have the op
portunity to read this magnificent argument. We should bear no more, after that, of the
^ compromises of the Constitution ' as an argument to close the lips and palsy the hands of
those who abhor slavery, and labor for its removal."
The Charter Oak says: " Of its rare merit as a controversial argument, it is super
fluous to speak. It may, in fact, be regarded as unansw-erable, and we are persuaded that
its general circulation would .give a new aspect to tbe Anti Slavery cause, by exploding the
popular, but mistaken notion, that slavery Is somehow entrenched behind the Consti
tution." The LihfTty Gazette (Burlington, Vt.,) says; "This work cannot be too highly
praised, or too extensively circulated. Its reasoning is conclusive, and no one can read it
without being convinced that the constitution, instead of being the friend and protector of
slavery, is a purely Anti-Slavery document."
The Indiana Freetnan sa,j3: "Every Abohtionist should have tbis admirable work ,
and keep it in constant circulation among his neighbors."

IV UNCONSTITUTIONALITY OP SLAVERY.

SYNOPSIS

Chap, I. What is Law? (p. 5.) Nothing inconsistent with justice can be law.
Falsehood of the definition, that " Law is a rule of civil conduct, prescribed by the supreme
power of a State."
[ Where the genuine trial by jury prevails, this principle can be carried out in practice.]
Chap. II, Written Constitutions, (p. 15.) Admits, for the sake ofthe argument, tliat
constitutions and statutes, inconsistent with justice, may be made law ; and insists only
that our constitutions shall be interpreted by the established rules, by which all other legal
instruments are interpreted ; one of which rules ia, that all words, that are susceptible of
two meanings, one favorable to justice, and the other to injustice, shall be taken in the
sense favorable to juatice.
Chap. III. The Colonial Charters, {p. 21.) a?hat these charters were the constitu
tional law of the Colonies up to the time of the Revolution ; that the provisions in them to
the effect that their legislation should be "consonant to reason, and 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," made it impossible that slavery could have any
legal existence in the Colonies up to the time of the F>.evolution ; and that the decision of
the King's Bench, in Somersett's case, was as much applicable to the Colonies as to Eng
land. Note corrects Bancroft's statement, that England ever legalized the slave trade.
Chap. IV. Colonial Statutes, (p. 82.) Shows that the Colonial legislation, on the
subject of slavery, failed to identify, with legal accuracy, the persons to be made slaves ;
aud, therefore, even if such legislation had been constitutional, would have foiled to legal
ize slavery. That, consequently, there was no legal slavery in the country, up to the time
of the Revolution.
Chap. V. The Declaration of Independence, (p. 86.) By this the nation declares it
to be " a self-evident truth," that all men are created free and equal. All " self-evident
truths " are necessarily a part of the law of the land, unless expressly denied. The na
tion, as a nation, has never denied this self-evident truth, which it once asserted. This
truth is, therefore, a part of the law of the land, and makes slavery Illegal.
Chap. VI. The State Constitutions of 1789. (p. 39.) None of the State constitutions
in existence in 1789, established or authorized slavery. All of them, on their face, are free
constitutions. Shows that the words ^^free.^" and "free^nan^" used iu these constitutions,
were used in the English or political sense, to designate native or naturalized persons, as
distinguished from aliens, or persons of foreign birth not naturalized ; and thatthey were,
in no case, used to designate a free person, aa distinguished from a slave. That the use of
the words in this sense, iu the State constitutions of 1789, as they had been previously used
in the colonial charters, and colonial legislation, furnish an authoritative precedent, by
which to fix the meaning of the words, ^'¦free persons.,'''* in the Constitution of the United
States, in the clause relative to representation and direct taxation.
Chap. VII. The Articles of Confederation., (p. 51), contain no recognition of slavery;
but use the word "/ree " in the English or political sense, to signify the native and natural
ized citizens, as distinguished from aliens ; and thus furnishes a precedent, authorized by
the whole nation, for giving the same meaning to the word ^^free " in the constitution.
Chap. VIII. The Constitution ofthe United States, (p. 54.) This chapter, m the
first place,, takes it for granted to have been shown that slavery had no legal existence up
to the time of the adoption of the United States Constitution. It then says that that con-

UNCONSTITUTIONALITY OF SLAVERY. V
stitution certainly did not create or establish slavery as a new institution ; that the moat
that can be claimed, is that it recognized the legaUty of slavery so far as it then legally ex
isted under the State governments ; but that, as slavery then had no legal existence, under
the State governments, any intended recognition of it, by the Constitution of the United
Statea, must necessarily have failed of effect. That consequently all " the people of the
UnitedStatea" were made "citizens of the United States" by the constitutionj and there
fore could never afterwards be made slaves by the State governments.
Secondly, (p 56.) Shows, from its provisions, that the Constitution of the United States
does not recognize slavery as a legal institution, but presumes all men to be free ; denies
..the right ofproperty in manj and, of itself, makes it impossible for slavery to have a legal
eiflStehce in any of the United States. Shows, (p. 67,) that the clause relative to persons ^
held to service or labor, has no reference tp_.slaves.;. that (p. 73) ffie'^fcerm, ^'' free persons, ^'tn.
-theTJiause^lative to representation, Ls used in the political sense, to designate native and ^
naturalized persons, as distinguished from persons of foreign birth, not naturalized; tbat
(p. 81) the clause relative to " migration and importation of persons," does not imply that >.
the persons imported are slaves; that it makes no discrimination as to the persons,
whether African or European, to be imported; that it as much authorizes the importation
of Englishmen, or Frenchmen, as slaves, as it does Africans; that it would, therefore, be a
^>^flraticg? constitution if the importation of persons implied that the persons to be imported
were slaves; that (p. 87) the clause relative to the protection of " the States against domes
tic violence," does not imply the existence or legality of slavery, or protection against slave
insurrections; that (p. 90) " We, the people of the United Statea," means all the people of
the United States ; the constitution, therefore, made citizens of all the then people of the
United States ; that (p. 95) the " power to regulate commerce," is a power to regulate com
merce among o^Zthe people of the United States, and impUes that all are ftee to carry on
commerce ; that (p. 96) the power to estabhsh post offices, is a power to carry letters for all
the people, and implies that all the people are free to send letters ; that (p. 96) tbe power to
secure to authors and inventors their exclusive right to their writings and discoveries, impUes
that all capable of writings and discoveries, are capable of being the owners thereof ; that
(p. 96) the power to raise armies, implies that Congress have power to accept volunteers, or
hire soldiers by contract with themselves, and that all are free to make auch contracts ; that
(p. 97) the power to arm and discipUne the miUtia, impUes that aU are Uable to be armed
and discipUned ; that the right to keep and bear arms, is a right of the whole people ; that
(p. 98) the prohibition upon any State law impairing the obligation of contracts, irapUes
that all men have the right to enter into aU contracts naturaUy obligatory; that {p. 99) all
natural bom citizens are eUgible to the Presidency, to the Senate, and to the House of Rep
resentatives ; that (p. 102) the trial by juryimjpUegthat all persons are free; that (p. 102)
fegL'fifg&gffl CgypM.v dehies^the-ri^^-of-pEopertY in mah ; that (p. 105) the guaranty to every
- -.State of a repubUcan form of government, is a guaranty against slavery.
Chap. IX. The Intentions ofthe Convention, (p, 114.) Personal intentions ofthe
framers of no legal consequence to fix the legal meaning of the constitution. The instru
ment must be interpreted as being the instrument of the whole people.
Chap. X. The Practice ofthe Government, (p. 123.) The practice ofthe govern
ment, under the constitution, has not altered the meaning of the constitution itself. The
instrument means the same now, that it did before it was ratified, when it was first offered
to the people for their adoption or rejection.
Chap. XI. The Understanding of the People, (p. 124.) No legal proof, and not even
a matter of history, that the people, before they adopted the constitution, understood that
it was to support slavery. Could never have been adopted, had they so understood it.
Chap. XII. The State Constitutions o/1845. (p. 126.) Do not authorize slavery ;
do not designate, nor authorize the State legislatures to designate, the persons to be made
slaves. Have provisions repugnant to slavery. The treaties for the purchase of Louisi-

VI UNCONSTITUTIONALITY OF SLAVERY.
ana and Florida, imply that all the " inbabitants " were free, possessing the rights of lib
erty, property, and religion, and were to become citizens of the United States.
I Chap. XIII. The Children of Staves are bom Free. (p. 129.) Shows that, even if
I the persons held as slaves at the adoption of the Constitution, were to continue to be held
as slaves, their children, born in the country, were nevertheless all to be free by virtue of
natural birth in the country.

PART SECOND.

Chap. XIV. Tlie Definition of Law. (p. 137.) The definition of law, given in chap
ter first, insisted on and defended. Additional authorities cited in note.
Chap. XV. Ought Judges to resign their seats? (p. 147.) No; but to continue to
hold them, and do justice.
Chap. XVI. The Supreme power of a State, (p. 153.) Absurd results from the
theory that the legislature represents " the supreme power of the State."
Chap. XVII. Rules of Interpretation, (p. 155.) Examines the established rules of
legal interpretation, and shows that they required the word " free," or the term " free
PERSONS," in the clause relative to representation, to be interpreted to mean, native and
naturalized persons, as distinguished from immigrants not naturalized; and not to mean
persons enjoying their personal liberty, as distinguished from slaves.
Chap. XVIII. Servants counted as Units, (p. 237.) The provision that " those
bound to service for a term of years," should be included among the " free persons," im
plies that there were to be no slaves.
Chap. XIX. Slave Representation, (p. 238.) Absurdity and injustice of it, a. con
clusive reason against any interpretation authorizing it.
Chap. XX. Wiy aliens are counted as three-fifths, (p. 242.) Not beino fuU citizens,
ought not to be counted as such. Inequality produced among the States by doing so.
Chap. XXI. Why the wards '¦'¦Free Persons'" were used. The word" free," had
always been the technical word, both iu this country and in England, for describing native
and naturalized persons, as distinguished from aliens. The indefiniteness of the word
" CITIZEN " made it an improper word to be used, where precision of meaning was required.
Chap. XXII. '¦'¦All other Persons.^' (p. 257.) These words used to avoid the use of
the unfriendly and Inappropriate word "aUens," and also to include "Indians not
taxed." Chap. XXin. Additional Arguments on the word Free. (p. 265.) Showing that this
word must bo taken in the political sense, before mentioned, aud not as distinguished from
slaves. Chap. XXIV. Power of the General Qovernwent over Slavery, (p. 270.) Origin and
necessity of the power to abolish slavery in the States.
Appendix A. Fdoitivb Slaves, (p. 279.) Extended legal and historical argument on
this subject.
I Appendix B. Sdqgestiokb to Abolitionists, (p. 290.) Abolitionists can abolish slavery
legally, only by taking the ground that the United States Constitution authorizes the
general government to aboUsh it.

AN ESSAY

TRIAL BY JURY.

Bt lysander SPOONER.

PUBLISHED AND POK SALE BY

BELA MARSH,

14 BROMPIELD STREET, BOSTON.

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TUl ESSAY ON THE TRIAL BT JURY.

CONTENTS.

Page.
Chap. I. The Right of Jueies to Judge of the Justice of
Laws, - 5
Section I, - - 5
Section 2, 11
Chap. II. The Trial bt Juet, as defined bt Magna Carta, 20
Section 1. The History of Magna Carta, 20
Section 2. The Language of Magna Carta, 25
Chap. III. Additional Proofs op the Rights and Duties of
Jurors, 51
Section I. Weakness of the Regal Authority, 51
Section 2. The Ancient Common Law Juries were mere
Courts of Conscience, 63
Section 3. The Oaths of Jurors, - 85
Section 4. The Right of Juroi-s to fix the Sentence, 91
Section 5. The Oaths of Judges, 98
Section 6. The Coronation Oath, 102
Chap. IV. The Rights and Duties of Juries in Civil Suits, 110
Chap. V. Objections a>'Sweeed, 123
Chap. VI. Juries of the present dat illec^l, 142
Chap. VII. Illegal Judges, I.57
Chap. VIII. The Free Administration of Justice, 172
Chap. IX. The Criminal Intent, j7g
Chap. X. Moral Considerations for Jurors, 192
Chap. XI. Authority of Magna Carta, . jgo
Chap. XII. Limitations imposed upon the Majoritt by the
Trial bt Jurt, 206
Appendix — Taxation, 222

AN ESSAY ON THE TRIAL BY JURY. IX
The theory of this book is that the ancient and common-law juries, such
as we are now constitutionally entitled to, were raere courts of conscience,
who tried, and whose oaths required them to try, all causes, both civil and
criminal, according to their own notions of justice, regardless of all legisla
tive enactments, and all judicial opinions, which did not correspond with
their own sense of right.
And inasmuch as it was necessary that the jurors should be drawn by lot,
or otherwise taken at random, from the whole body of male adults, without
any choice, dictation, or interference, by the government, it was reasonably
presumed that substantially all opinions, prevailing among the people,
would be represented in the jury ; that, in other words, a jury would be, in
fact, a fair epitome of " the country," or_whole community, which it was de
signed to represent.
And since the twelve, thus selected, could render no judgment, unless by
an unanimous assent, it follows that no laws were intended to be enforced,
except such as substantially the whole people were agreed in, as being just.
From this statement, it will be seeu that our modern idea, that the majority
have the right arbitrarily to govern the minority, and to establish any thing
they may please as law, without regard to justice, is wholly incompatible
with the principles of the Trial by Jury.

NOTICES.
The following is from the pen of Richard Hildreth, Esq., the historian.
"ESSAY ON THE TRIAL BY JURY."
Mehsrb. Editors : — This remarkable book, by Lysander Spooner, will richly repay peru
sal on the part of aU who feel the least interest in the theory of govemment, that is to saj,
all the thinking men of the United States, and indeed of all the world over. The chsirming
ease and lucidity of Mr. Spooner's style, — in which, among all the writers of the English
language, he has very few competitors, — the close coherence of his ideas, and the sharp
dexterity of his logic, give to his book, what we seldom find now-ardays, the interest of a
well-compacted drama, with all the AristoteUan unities complete, and a regular beginning,
middle, and end. Having begun to read it, we found it impossible to lay it down till we
got to the end of it, though obUged to sit up long past midnight, and though we were
already informed of the general tenor of the argument, from having seen the greater part
of the proof-sheets. The book indeed has this further resemblance to a poem of the first
class, that it will not only bear re-perusal, but gain by it — which we take to be the great
distinction between the true poem, whether in verse or prose, and the mere novel or ro
mance. There are, however, some citations and notes, which may be skipped on the second

X ESSAY ON THE TRIAL BY JURY.
perusal, and indeed on the flrst, by those inveterately given to that practice, as not essen
tial to the argument, only corroborative of it. But if any reader intends to take issue — as
the lawyers say — with Mr. Spooner, he had better read the whole at least twice over.
The trial by jury has enjoyed and enjoys a most lofty traditional reputation as " the
palladium of English liberty." Looking at jury trial as it now actually exists, the judges
dictating not only the conclusion in law, that is, the decision to which the jury is bound to
come upon any such state of facts as they may consider to be proved, but having also the
exclusive decision as to what evidence shall be admitted to prove these facts, and the in
structing of the jury what weight they ought to allow to this or that piece of evidence, and
what conclusions they ought to draw from it ; with all these assumptions of authority on
the part of the judges, the jury seems to have become very much what the late Mr. Justice
Story was accustomed, in private conversation, to describe it as being — a mere stalking-
horse, from behind which the judge may shoot quietly and safely, deciding everything, at
the same time that he escapes the responsibility, and in some cases, the odium, of doing so.
Such being the practical character of our modern juries, mere cloaks and shields of
judicial dictation, it has come, among thinking men, to be a great puzzle how they ever got
their immense reputation as a " palladium of liberty ;" and some writers have not scrupled
to denounce the whole idea as a mere humbug.
Mr. Spooner, however, has shown very conclusively, and by a skilful array of authori
ties that cannot be got over, that in its original institution, and during the whole time in
which it got this reputation as the "palladium of liberty," the jury was a totally different
thing from what it has become iu these later times under the plastic hands of the judges,
the juries having been originally sole judges of both law and fact, indeed possessing sub
stantially a veto on the execution of any such laws as they did not consider conformable
to justice and the public good.
All readers may not agree with Mr. Spooner's somewhat enthusiastic admiration of this
jury veto power ; but that it did exist, and that it was this which made the jury the " pal
ladium of English liberty," he has proved beyond the shadow of a doubt; and in so doing
has shed a groat deal of new light upon the gradual formation of what is known as the
British constitution, the source from which so large a part of our American constitutions
are derived. Nothing is more certain than that the great, indeed the sole value of the trial by jury
is pohtical. As a mere contrivance for deciding matters of fact — according to the common
representation made of it by modern lawyers — it is clumsy, inconvenient, and liable to a
variety of objections. In those countries on the continent of Europe, in which it has been
introduced of late years, for the trial of criminal cases, it has greatly disappointed the
expectations formed by those who had been accustomed to read of it in books as the " pal
ladium of liberty," aud is generally esteemed a total failure.
We axe not entirely prepared to go with Mr. Spooner, for the complete re-estabUshment
of the jury veto on the ancient model. But that it is absolutely essential to the Uberties
of the people to preserve to juries the right of deciding law as well as fact, in all criminal
cases, we do not entertain the slightest doubt. And considering the recent and alarming
strides, as well of legislative as judicial usurpation, — especially the fact recently announ
ced from the bench of the Federal Court of the United States for this circuit, that ail the
judges of the Supreme Court of the United States scout the idea of any right in a jury to
judge of the law in any case whatsoever, — we think Mr. Spooner has done excellent service
in calling attention, as he has so ably, to the ancient conservative jury veto.
Mr. Spooner is a thorough-going Democrat, — as zealous for the rights of the people
and as fierce against judicial usurpation, as JeEferson himself. Indeed some of the Innees
which he makes at their honors on the bench — as in the note on page 164  have a heartv
frankness about them highly refreshing to one who has been sickened and disgusted— as
what hater of falsehood and cant has not been? — by the systematic routine flattery and
servility of the bar towards the judges. But more consistent, more ^comprehensive and
truer to liberty than Jefferson ever was, Mr. Spooner is equally hostile to the usurpations
and tyranny of a domineering majority under the forms of legislation. And, indeed, in our

ESSAY ON THE TRIAL BY JURY. XI
American States, judicial usurpation is seldom very boldly ventured upon, except in the
service of a tyrant majority, eager to trample under foot the constitutional and natural
rights of the minority. The Conservatives, therefore, no less than the Democrats, owe a
debt of gratitude to Mr. Spooner. It is truth and justice in whose cause he is ealisted, not
that of party. R. H.
HON. STEPHEN ROYCE, formeriy Chief Justice, and afterwards Grovernor, of Ver
mont, says : East Berkshire, Vermont,
September 21, 1857.
Q-. W. Searle, Esq.: Sir, — You wiU please accept my thanks for the favor of Mr.
Spooner's book upon ''The Trial by Jury." Ihave derived much pleasure from a hasty
perusal of it, and hope the author will persevere and produce the other works, of which he
has giveu indications in this. Although I do not look to see his theories extensively carried
out in practice, yet I think his labors must have effect for good. Investigations so decidedly
able and searching, can scarcely fail to excite reflection and serious enquiry, — as well with
honest legislators and statesmen, as among enUghtened jurists. And the result maybe, at
least, a step taken towards restoring to suitors some of those common-law rights, of which,
in the lapse of centuries, they have been gradually deprived.
With high respect, your ob't serv't,
STEPHEN ROYCE .
GEORGE W. SEARLE, Esq., says: The general proposition assumed and aimed to be
sustained is, that "for more than six hundred years — that is, since Magna Carta in 1215
— there has been no clearer principle of English or American constitutional law, than that,
in criminal cases, it is not only the right and duty of juries to judge what are the fkcts,
what is the law, and what was the moral intent of the accused ; but that it is also their
right, and their primary and paramount duty, to judge of the justice of th^ law, and to hold
all laws invaUd, that are, in their opinion, unjust or oppressive, and all persons guiltless In
violating, or resisting the execution of, such laws." It will bo seen that this is a bold pro
position, and at first glance it may appear untenable ; but it is certainly a position not to be
enthely appreciated by a glance. It must be confessed that it elevates the tribunal of the
Jury to the highest pinnacle of power, making them the judge of the judges, and giving
them authority to sit in judgment upon the legislature itself. This position the author
seeks to maintain in a very learned and ingenious argument of 224 pages, in the first instance
from the general nature of the jury aa the palladium of liberty, and a bulwark against the
tyranny of authority— by the history, spirit, and language of Magna Carta — and by a variety
of reasoning in detail. This head is followed by a general refutation of objections.
It ia not our purpose to enter at length upon any discussion, either in support or refu
tation of the doctrines laid down by the author; for the former task we feel our incompe
tency, and for the discharge ofthe latter, that much more time would be requisite than we
have at our command, if indeed any time would justify the undertaking. Whatever doubts
there may be as to the author's opimons upon many subjects, we may say of his writings
what Charles James Pox once said of a speech he was about to reply to in the House of
Commons, to one who noticed his serious perturbation, " it is not so easy a matter to answer
such an argument as that." * * • That the positions assumed are novel and heretical,
judged in the Ught of prevaiUng adjudications, is quite true, but that for that reason they
are any the less worthy of regard, is quite wide of the truth. To the thinking man we
recommend it as food upon which he may feed and grow strong j and to the professional
man, in an age of progressive jurisprudence, when the science of law, too long bound with
an iron grasp to antiquated decisions and principles having nothing but their antiquity
and their folly for their authority, is beginning to take its march by the side of modern
science, we recommend its candid and impartial examination, assuring him that in it he will
find the bold expression of manly truths, without fear or favor.

Xll ESSAY ON THE TRIAL BY JURY.
WENDELL PHILLIPS, Esq., says of it: "Though I dissent from Mr. Spooner's
main conclusion, I must confess this efibrt is marked with aU his pre-eminent ingenuity
and ^bility. He has laid all history under contribution for Ught as to the origin and func
tions of juries ; and I am debtor to his diligence and research for much that was new to me.
The original province of a jury has never before been fuUy investigated in any work acces
sible and intelligible to common readers. I am uot aware that there has been any able and
extended argument about it since Erskine's.
The fullness, therefore, of historical illustration, which Mr. Spooner has given to those
points, even, on which many of the profession would agree with him, makes the volume a
valuable contribution to legal literature.
Though he has not converted me to his views, yet I always read him with pleasure, and
admire him for an opponent on one account — he states his questions so fairly, and faces
the difficulties Uke a man.
I quite agree that juries have the right, in both civil and criminal cases, to judge wliat
ihe law is J i. e. what the Legislature have constitutionaUy enacted — buti cannot allow
them the right to set aside statutes because they think them unjust."
ROBERT E. APTHORP, ESQ., says of it: If it cannot be answered, it must make
a deep impression on the conscience, and thus on the jurisprudence, of the age in
which we Uve. That it can be answered I greatly doubt ; or rather I should say, I have no
doubt about it. One thing is certain, — no tyro will venture to flesh his sword upon such
a structure of logic and fact ; and should any worthy antagonist present himself in the
Usts, our generation and aU future ones would owe Mr. Spooner a debt of gratitude for
having /orced attention,' in high places, to a subject than which, I may safely ^ay, none
more intimately and vitally concerns this RepubUc.
REV. EDWARD BEECHER, D. D., says of it : Thus stated, it is plain that no point of
history can exceed in dignity and importance that which Mr. Spooner has undertaken to
discuss. '
The mode of his discussion is worthy of the gravity of the point at issue. It does not
at aU consist of rhetorical declamation, but is a sober, earnest, leamed, and powerful argu
ment, based on copious citations from numerous and weighty legal and historical authorities,
ancient and modem.
ELIZUR WRIGHT says of it : " To me it seems not only very remarkable a.s a book,
but as a discovery ; one which may be more useful to the world than new gold regions."
HON. SAMUEL E. SEWALL says of it : « This is a work of deep research and power
ful argument. It ought to be in the hands not merely of every judge and every lawyer.
but of every man who values liberty, and wishes to examine its sacred foundations."
HON. JOSHUA R. GIDDINGS says of it : " It should be placed in the Ubrary of every
lawyer, and of every reader of general literature."

THE

UNCONSTITUTIONALITY

OF

SLAVERY.

BY LYSANDER SPOONER.

BOSTON:
PUBLISHED BY BELA MARSH,
» No. 14 Bbomfield St.
1860.

^''^^^Jder

Entered anV^ttHafeMlf Congress, in the year 1845, by
SR SPOONER,
In the GlerklPOffice of the District Court of Massachusetts.

CONTENTS OF PART FIRST.

PAGE
CHAPTER I.— WHAT IS LAW?  5
H.— WRITTEN CONSTITUTIONS, .... 15
" HI. — THE COLONIAL CHARTERS, ... - 21
rV. — COLONIAL STATUTES,  32
« V  THE DECLARATION OF INDEPENDENCE, - 36
« VI. — THE STATE CONSTITUTIONS OF 1789.

39
MEANING OF THE "WORD "FREE," "
« vn. — THE ARTICLES OF CONFEDERATION, - 51
" VIII. — THE CONSTITUTION OF THE UNITED STATES, 54
« IX. — THE INTENTIONS OF THE CONVENTION, . 114
" X. — THE PRACTICE OF THE GOVERNMENT, - 123
" XI.— THE UNDERSTANDING OF THE PEOPLE, - 124
" XII. — THE STATE CONSTITUTIONS OF 1845, - 126
•• xm. - THE CHILDREN OFSLAVES ARE BORN FREE, 129

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 govemment.
To do this it is necessary to define the term law. Populai
opinions are very loose and indefinite, both as to the true defini
tion 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 aU circum-
stances, 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 pnnciple, whether mental, moral or phys
ical. 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
1*

O THE trNCONSTITUTIONALITY OF SLAVERY.
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
die vegetable and animal kingdoms, in all their various depart
ments : 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 naturiH, universal, impartial and inflexible
principle, which, under all circumstances, necessarily fixes, deter
mines, 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 ju,slice.
This rule, principle, obligation or requirement of natural justice,
has its origin in the natural rights of individuals, results necessa
rily from them, keeps them ever in view as its end and purpose,
secures their enjojrment, 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 1 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 ahvays 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

WHAT IS LAW S 7
not been thus anticipated, the natural law prevails. We thus
poUtically and judicially recognize the principle of law as originat
ing in the nature and rights of men. By recognizing it as origin
ating 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
f'om 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 aU.
Natural law, then, is the paramount law. And, being the para
mount 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 arbi
trary, partial and temporary rule must, of necessity, be of less obli
gation 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 compari
son 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
nght of men to enter into obligatory contracts, permits the forma-
lion of govemment, founded on contract, as all our governments

8 THE tTNCONSTITtmONALITY OF SLAVERY.
profess to be. But in order that the contract of government may
be valid and lawful, it must purport to authorize nothing incon
sistent with natural justice, and men's natural rights. It caniwt
^awfully 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 associiition oi
individuals — than to a single individual. They are a necessary
attribute of man's nature ; and he can no more part with them —
to government or anybody else — than with his nature itself.
But the contract of government may lawfully authorize the adop
tion of means — not inconsistent with natural justice — for the
better protection of men's natural rights. And this is the legiti-'
mate and true object of government. And rules and statutes, not
inconsistent with natural justice and men's natural rights, if
enacted by such govemment, are binding, on the ground of con
tract, upon those who are parties to the contract, which creates the
govemment, and authorizes it to pass rules and statutes to carry
out its objects.*
But natural law tries the contract of govemment, and declares it
lawful or unlawful, obligatory or invahd, by the same rules by
which it tries all other contracts between man and man. A con-
tract 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 vaHdity 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
* It is obvious that legislation can have, in this country, no higlier or other author
ity, 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 author
Ity 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 wbich arbitrary gcvernments
have been founded. And the idea of any necessary or inherent authority in leo-ig.
lation, as such, is, of course, equally an imposture. If legislation be consisreni
with natural justice, and the natural or intrinsic obligation of the contract of govern
ment, it is obligatory : if not, not.

WHAT IS LAW ? 9
to justice and men's natural rights. On the same principle, if the
majority, however large, of the people of a country, enter mto a
contract of govemment, 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 govemment 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 govemment 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, destruc
tion. 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 can
not, by accepting office under a government, rid themselves of that
paramount obligation, that all men are under, to declare, if they
declare anything, that justice is law ; that government can have
no lawful powers, except those with which it has been invested by
lawful contract ; and that an unlawful contract for the establish
ment of govemment, is as unlawful and void as any other con
tract to do injustice.
No oaths, which judicial or other officers may take, to carry out
and support an unlawful contract or constitution of governmeni,
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 govern
ment, state and national, which we call constitutions, are void, and
unlawful, so faj as they purport to authorize, (if any of ihem do
autliorize,) anything in violation of natural justice, or the natural

10 THB UNCONSTITUTIONALITY OF SLAVERY.
rights of any man or class of men whatsoever. .4.nd all judicial
tribunals are bound, by the highest obligations that can rest upon
them, to declare that these contracts, in all such particular*, (if
any such there be,) are void, and not law. And all agents, legis
lative, executive, judicial and popular, who voluntarily lend their
aid to the execution of any of the unlawful purposes of the gov
ernment, are as much personaUy 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 trae character and definition of law. Yet, instead of
being allowed to signify, as it in reality does, that natural, uni-
versal and inflexible principle, which has its origin in the nature
of man, keeps pace everywhere with the rights of man, as their
shield and protector, binds alike governments and men, weighs by
the same standard the acts of communities and individuals, and is
paramount in its obligation to any other requirement which can
be imposed upon men — instead, I say, of the term law being
allowed to signify, as it really does, this immutable and overrul
ing principle of natural justice, it has come to be applied to mere
arbitrary rules of conduct, prescribed by individuals, or combina
tions 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 vener
ation for physical power, that this injustice has not opened their
eyes lo the distinction between law and force, between the sacred
requirements of natural justice, and the criminal exactions of,unre-
slrained selfishness and power. They have thus not only suflered
the name of law to be stolen, and applied lo crime as a cloak to
conceal its true nature, but they have rendered homage and obe
dience 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 com-
mand of power, without reference to ils justice or ils injustice, its
innocence or ils criminality. And now, commands the most crim
inal, if christened wilh the name of law, obtain nearly as ready an

WHAT IS LAW? 11
obedience, oftentimes a more ready obedience, than law and jus
tice 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
aUowed falsehood, absurdity and cruelty to usurp the name and
the throne of rehgion.
But I am aware that other definitions of law, widely difierent
from that I have given, have been attempted— definitions too,
which practicaUy obtain, to a greal extent, in our judicial tribunals,
and in all the departments of government. But these other defini
tions are nevertheless, aU, in themselves, uncertain, indefinite,
mutable ; and therefore incapable of being standards, by a refer
ence 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 Umited, 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 em
braces the essence of aU 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." — NoaA Webster.
In this definition, hardly anything, that is essential fo 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 unceitain 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.

12 THE UNCONSTITUTIONALITY OF SLAVERY.
Again. If physical power be the fountain of law, then law ana
force are synonymous terms. Or, perhaps, rather, law would be
the result of a combination of wiU and force ; of will, united with
a physical power sufficient to compel obedience lo it, btit 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 there
fore identical in their essence ?
According to this definition, too, a command to do injustice, is
as much law, as a command to do justice. AU that is necessarj',
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 wiU 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 fol
lows 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 legiti
mate law of that case, and judicial tribunals can take cognizance
of no other.
And it makes no difference, on this principle, whether this com
bination of will and power be found in a single individual, or in a
community of an hundred millions of individuals. — The numbers
concemed do not alter the rale —otherwise law would be the result
of numbers, instead of " supreme power." It is therefore suffi
cient 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 wiU and power of miUions
of men are to make the law relative to any acts which they are
able to accomplish.
On this principle, then — that mere wiU and power are compe
tent to establish the law that is lo govern an act, withoui reference
to the justice or injustice of the act itself, the wiU and power of
any single individual to commit theft, would be sufficienl 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, mav be

WHAT IS LAW? 13^
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 in
justice, which large and organized bodies of men, self-styled
governments, may accomplisu.
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 belween " 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 oqjy what, the will and power of
individuals may arbitrarily establish.
There is nothing ^e<^ in the nature, character or boundaries of
" a state," Will and power may alter them al pleasure. The
wUl and power of Nicholeis, and that will and power which he
has concentrated around, or rather within himself, establishes all
Russia, both in Europe and Asia, as " a slate," 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 wiU 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, /or 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 feel square, within which the
wiU 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 lime being, the .aw
within those limits ; and his acts are, therefore, for the time being,
2

14 THE UNCONSTITUTIONALITY OF SLAVERY.
\
as necessarily lawful, without respect to their intrinsic justice ot
injustice, as are the acts of larger bodies of men, within those
Iraiits where their wiU and power are supreme and irresistible.
If, then, law reaUy 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 wiU and force, wherever they are com
bined 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 Ucenses all
possible crime, violence and wrong, both by governments and in
dividuals. The definition was obviously invented by, and is suited
merely lo gloss over the purposes of, arbitrary power. We are
therefore compelled to reject it, and to seek another, that shaU
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 laio 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
obUgation or requirement of natural justice, it foUows that govem
ment can have no powers except such as individuals may rig-A^/w?/^
delegate to it : that no law, inconsistent with men's natural rights,
can arise out of any contract or compact of government : ihat cmt-
stitutional law, tinder any form of government, comists only of
those principles of the written constitution, that are con.sistent with
natural law, and man's natural rights ; and that any other princi
ples, 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 aa
any that can exist under the name of law.

VTRITTEN CONSTII (JTIONS. 15
It is possible, perhaps, that this doctrine would spare enough of
our existing constitutions, to save our governments from the
necessity of a new organization. But whatever else it might
spare, one thing it would not spare. It would spare no vestige of
that system of human slavery, which now claims to exist by
authority of law.*

CHAPTER II.
WRITTEN CONSTITUTIONS.
Taking it for granted that it has now been shown that no rule
of civil conduct, that is inconsistent wilh 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 govemment, which judicial tribunals
actuaUy recognize as authoritative.
In making this examination, however, I shaU not insist upon
the principle of the preceding chapter, that there can be no law
* The mass of men are so much accustomed to regard law as an arbitrary com
mand 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." — Bladc-
utone. "Justice is the constant and perpetual disposition to render to every man his
due." — Justinian.
" The precepts of the law are to live honestly ; lo hurt no one j to give to every
one his due." — Justinian 4" Blaclcstone.
" Law. The rule and bond of men's actions ; or it is a rule for the well govern
ing of civil society, to give to every man that which doth belong to him." — Jacobus
Law Dictionary.
" Laws are arbitrary or positive, and natural ; the last of which are essentially
just and good, and bind everywhere, and in all places where they are observed. * *
* * Those which are natural laws, are from God ; but those which are arbitrary,
are properly human and positive institutions." — Selden on Fortescue, C. 17, also
Ja,cj}b^s Zjaw 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, andmay not be changed. "—2
SSiep. Abr. 356, also Jac. Law Diet.

16 THE UNCONSTITUTIONALITY OF SLAVERY
contrary to natural right ; but shaU admit, for the sake of the argu
ment, that there may be such laws. I shall only claim that in the
interpretation of all statutes and constitutions, the ordinary legal
" All laws derive their force from the law of nature ; and those which do not, are
accounted as no laws." — Fortescue, Jac. Law Diet.
" No law will make a construction to do wrong ; and there are some things which
tlie law favors, and some it dislikes ; it favoreth those things that come from the
order of nature." — 1 Inst. 183, 197. — Jac. Law Diet.
" 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." —
Hoolcer. Blackstone speaks of law as " A science, which distinguishes the criterions of
right and wrong ; which teaches to establish the one, and prevent, punish or redress
the other ; which employs in its theory the noblest faculties of the soul, and exerts
in its practice the cardinal virtues of the heart ; a science, which is universal in its
use and extent, accommodated to each individual, yet comprehending the whole
community." — Blaclcstone^s Lecture on ttie Study of the Law.
" This law of nature being coeval with mankind, and dictated by God himself, is
•f course superior in obligation to any olher. 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 medi
ately or immediately, from this original." — Blaclcstone, Vol. I, 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 natures sunt immulabilia, and they are leg-es legiijn" — (the laws of
nature are immutable — they are the laws of laws.) — Hob. 87.
Mr. Christian then adds :
" With deference to tbese high authorities, (Blackstone and Hobart,) I should
conceive that in no case whatever can a judge oppose his own opinion and authority
*o the clear will and declaration of the legislature. His province is to interpret and
obey the mandates of the supreme power of the state. Ahd if an act of Parliament,
if we could suppose such a case, should, like the edict of Herod, command all the
•hildren 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 jus
tice, upon an appeal to the House of Lords this inconsistency would be the conse
quence, 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 intrinsicaUy 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 UniteO
States. That difficulty is, the " inconsistency" there would be, if tbe House ot
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

WKITTEN CONSTITUTIONS. 17
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
reason why Blackstone adniitted that he knew of no power in the ordinary forms of
the (British) constitution, that was vested with authority to control an act of Parlia
ment that was unreasonable, (against natural justice.) But in the United States,
where the judicial aud 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 discus
sions 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 depart
ments 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 de
partment. There have been cases, few and far between, in which the United
States courts have declared acts of state legislatures unconstitutional. But the
history of the co-ordinate departments ofthe same governments has been, that the
judicial sanction followed the legislative act with nearly the same unerring certainty,
that tbe shadow foUows-the substance. Judicial decisions have consequently had
the same effects in restraining the actions of legislatures, that shadows have in re
straining the motions of bodies.
Why this uniform concurrence of the judiciary with the legislature ? It is be
cause 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 arrrena-
ble only to the legislature for their official character. They are made entirely inde
pendent 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 ofthe judiciary from the other de
partments 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 govemment.
Whether any of our present judges would, (as Mr. Christian su^ests they ought,)
" resign their offices" rather than be auxiliary to the execution of an act of legis
lation, 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 pf resigning their offices to avoid declaring it
to be law, tbat *' children of two years old and under," may be wrested forever
from that parental protection which is their birthright, and subjected for life to out
rages 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 it* jjerpe tration. 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. \,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 commLTii-
ties ; in the construction also of which compacts, we have no other rule to resort ta
2*

18 THE UNCONSTITUTIONALITY OF SLAVERY.
of natural right. The rule is laid down by the Sv preme Court of
the United Slates in these words, to wit : _
" Where rights are infringed, where fundamental principles are

but the law of nature : (tbat) being the only one to which aU the communities are
equaWysahject." — Blackstone, VoL I, p. i3. ,,. ^ ^ , ,. ,
" Those rights then which God and nature have established, and are theretore
called natural rights, such as are life and liberty, need not the aid of human laws to
be more eiFectually 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." — B/ocAstone,
Vol. i,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." ~ Blaclcstone, Vol. l,p. 123.
" The principal aim of society (government) is to protect individuals in the enjoy
ment of those absolute rights, which were vested in them by the immutable laws of
nature ; but which could not he preserved in peace without that mutual assistance
and intercourse, which is gained by the institution of friendly and social communi
ties. Hence it follows, that the iirst and primary end of human laws is to maintam
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 j so
that to maintain and regulate these, is clearly a subsequent consideration. Aud
therefore the principal view of human law is, or ought always to be, to explain,
protect,- and enforce such rights as are absolute ; which, in themselves, are fcAV and
simple : aud then such rights as are relative, which, arising from a variety of connex
ions, 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." — Blaclcstone, Vol. I, p. 124.
" The absolute rights of man, considered as a free agent, endowed with discern
ment to know good from evil, and with power of choosing those measures which
appear to him most desirable, are usuEdly 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." — Blacle-
atone, Vol. I, p. 125.
" Moral or natural liberty, (in the words of Burlamaqui, ch. 3, s. IB,) 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 ofthe law of nature, and that they do not any way abuse it
to the prejudice of any other men." — Christian's note, Blaclcstone, Vol. 1, p. 126.
" The law of Nature is antecedent and paramount to all human governments.
* * * Every individual of the human race comes into the world with rights which
if the whole aggregate of human power Avere concentrated in one arm, it could not
take away. * * * The Declaration of Independence recognizes no despotism
monarchical, aristocratic, or democratic. It declares that individual man is pos
sessed of rights of which no government can deprive him." — John Quincy Adams.
All the foregoing definitions of law, rights and natural liberty, although some of
them are expressed in somewhat vague and indefinite terms, nevertheless recognb*
he primary id -a, that law is a fixed principle, resulting from men's natural righte ¦

WRITTEN CONSTITUTIONS. 19
svcrthrown, where ihe general system of the laws is departed from,
the legislative intention must be expressed with irresistible clear
ness, to induce a court of justice to suppose a design to efTect such
objects," *
and that therefore the acknowledgment and security of the natural rights of in
dividuals constitute the whole basis of law as a science, and a sine qua non of gov
ernment 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 continuaUy
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 iiictions 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 s,i^e 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, iu
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 proraote the protec-
.ion 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 con
ceded 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 of his hands, and the enjoy
ment of all his rights, and he will then be more competent to his own defence ; his
rights will he 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 governmeni thau we now have.
If individuals choose to form an association or government, for the mutual pro
tection 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 everything, and
secures nothing. Such a contract of govemment would be a burlesque on the
wisdom of asses. Such a contract never was, nor ever will be voluntarUy 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 Ilis proportion ofthe aggregate cost of protecting al' the rights of each of the
* United States va. Fisher, 2 Crunch, 390.

20 THE UNCONSTITUTIONALITY OF SLAVEEY.
It will probably appear from this examination of the written con
stitutions, that slavery neither has, vm 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 defi
ance of the plainest provisions of their fundamental law.
For the more convenient consideration of this point, we wUl
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 embrac
ing 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.
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
hberty so far as to restrain or infringe tbe equally free development of the natures
and faculties of others. The dividing line between the equal liberties of each must
never be transgressed by either. This principle is the foundation and essence of
law and of civil right. And legitimate government is formed by the voluntary
association of individuals, for the mutual protection of each of them in the enjoy
ment 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 re
sponsibility of his own happiness aud well-being. If his necessities require more
than his faculties will supply, he must depend upou 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 occa
sion—an extremity, that would probably never occur but for some antecedent in
justice.

CHAPTEE III.
THE COLONIAL CHARTERS.
When our ancestors came to this country, they brought with
them the conimon law of England, including the writ of habeas
corpus, (the essential principle of which, as will hereafter be
shown, is to deny the right of property in man,) the trial by jury,
and the other great principles of liberty, which prevail in England,
and which have made it impossible that her soil should be trod by
the foot of a slave.
These principles were incorporated mto 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 conlrary, but, as nearly as circumstances would
allow, conformable to the laws, statutes and rights of our kingdom
of England."*
¦* The second charter to Virginia (1609) grants the power of making "orders,
ordinances, constitutions, directions and instructions," " so always as the said stat
utes, 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 charier (1611 — 12) gave to the " General Court" " power and author
ity" to " make laws and ordinances" " so always as the same be not contrary tc
the laws and statutes of our realm of England."
The first charier 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 ex
isted in Virginia, makes no mention of slavery, but requires the laws to he " rea
sonable and not repugnant to the laws of this our realm." " The 6»id corporation
shall and may lorm and prepare laws, statutes and ordinances fft aitd 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
ibe 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."

22

THE UNCONSTITUTIONALITY OF SLAVERY.

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.*
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 conso
nant 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 0uke 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 irom 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 WilUam 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."
SeveraUther charters, patents, &c., that had a temporary existence, might be
named, that contained substantially the same provision.
* In the case of the town of Pawlet v. Clarke and others, the court say-
Let us now see how far these principles were applicable to New Hampshire, al
the lime 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 fir<.t roval commis
sion granted in 31 Charles II among other things, judicial powers, in all actions
were granted to the provincml governor and council, ¦ So always that theform of
proceeding in such cases, and the judgment thereupon to be given, be as consonant
and agreeable to the lavvs 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 how
ever, of sueh a provision, we take il to be a clear principle that the common law in
force at the emigration of our ancestors, is deemed the birthright of the eoloni
unless so far as it is inapplicable to their situation, or repugnant to their other riJfu
and privileges. A fortiori the principle applies to a royal p ovince "—(9 Cntf K'^
U. States' Reports, 332-3.) 'r.wicn s

TIIE COLONIAL CHARTERS. 23
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, broughl 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.* 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 tole/ated in the colonies, is no evi
dence 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 sia.y there, and carry them away when they went.
But the toleration of this practice did not make it lawful, notwith
standing all customs, not palpably and grossly contrary to the
principles of EngHsh liberty, have great weight, in England, in
establishing law.
The fact, that England tolerated, (i. e. did not punish criminally,)
the African slave-trade al that time, could not legally establish
slavery in the colonies, any rnore than it did in England —
especially in defiance of the positive lequirements of the charters,
that the colonial legislation should be consonant lo reason, and not
repugnant lo the laws of England.
Besides, the mere toleration of the slave trade could not make
slavery itself — the right of property in man — lawful anywhere ;
* Somerset v. Stewart. — Loffl's Reports, p. 1 tn 19, of Easier Term, 1772. In
be Dub.in ediiior. the case is not entered in the Index.

24 the UNCONSTITUTIONALITY OF SLAVEKY.
not e fen 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 legahze one's claim to
property obtained by such wrong. Even if a wrong can be legal
ized al all, so as to enable one to acquire rights of properly by
such wrong, it can be done only by an exphcit and positive provi
sion. The English statutes, on the subject of the slave trade, (so fax
as I have seen,) never attempted to legaUze the right of property
in man, in any of the thirteen Norih American colonies. It is
doubtful whether they ever attempted to do it anywhere else. It
is also doubtful whether Parliament had the power — or perhaps
rather it is certain that they had not the power — to legalize it
anywhere, if they had attempted to do so.* And the cautious
and curious phraseology of their statutes on the subject, indicates
plainly that they themselves either doubted their power to legalize
it, or feared to exercise it. They have therefore chosen to con
nive 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 sta|ule 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
.egilizing slavery in the United Slates, 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 thev
could be called,) on the coast of Africa, to allow slave'v under

* Have Parliament the constitutional prerogative of abolishing the writ oT habecu
mrpus ? the trial by jury 7 or the freedom of speech and the press ? !f not, hava
they the prerogative of abolishing a man's right of property in his own person 1

the COLONLiL CHARTERS. 25
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 legaHzing the
right of property in the slaves that had been brought to, and bom
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 il, as would have applied to a case arising within the
island of Great Britain. And it must therefore always have been
held by English courts, (in consistency with the decisions in
Somerset's case,) that the slave trader had no legal ownership of
his slave. And if the slave trader had no legal right of property
in his slave, he could transfer no legal right of property to a pur
chaser in the colonies. Consequently the slavery of those that
were brought into the colonies after the statute of 1750, was equal
ly illegal with that of those who had been brought in before.*
* Mr. Bancroft, in tbe 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 " 1695, 8 and 10 Wm. 3, ch. 26." (Should be
1697, 8—9 and 10 Wm. 3, ch. 26.)
Now the truth is that, although this statute may have been, and very probably
was designed to insinuate to the slave traders the personal approbation of Parlia
ment 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 govemor,
deputy-governor or judge, in the colonies or plantations in America, or any other
person or persons, for the use cr on the behalf of such govemor, 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 ia

26 THE UH CONSTITUTIONALITY OF SLAVEEY.
The conclusion of the whole matter is, that until some reason
appears against them, we are bound by the decision of the King's
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 infer
ence 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 re
lieves the masters of vessels ftom 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 " im
ported" 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 planta-
tious 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 traflBc.
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 im
port of the whole.
The act is entitled, "An Act to settle the Trade to Africa." Sec. 1, recites as
follows : —
" Whereas, tbe Trade to Africa is highly beneficial and advantageous to this
kingdom and to the Plantations and Colonies thereunto belonn-ing."
The act rontains ^loen^y-one sections, regulating trade, duties, &c., like any other
navigation act. " Negroes" are mentioned only in the following instances and
connexions, to wit :
Sec. 7. " And be it enacted by the authority aforesaid. That from and after the
four-and-twentieth day of June, one thousand six hundred ninety-and-eight, it shall
and may be lawful to and for any of the subjects of his majesty's realms o'f England
ns well as the said Company,* to trade from England or any of his majesty's plan
tations 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 merchandises to be exported from England or any of his majesty's plan-
* The Royal African Company.

THE COLONIAL CHARTERS. 27
Bench in 1772, and the colonial charters. That decision declared
that there was, at that time, in England, no right of property in
tations or colonies in America to and for the coast of Africa, between Cape Blanco
and Cape Mount, and in proportion for a greater or lesser value, and answering and
paying a further sum and duty of ten pounds per centum ad valorem, red wood
only excepted, which is to pay five pounds per centum ad valorem, at the place
of importation upon all goods and merchandize (negroes excepted) imported in
(into) England or any of his majesty's plantations or colonies in America, from the
coast of Africa, between Cape Blanco and Cape Mount aforesaid. * * * jVna
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, andthat 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 entrj' at any of his majesty's
custom houses aforesaid of the said ship or vessel, or before any goods or merchan
dize be landed or taken out of the said ship or vessel (negroes excepted) sball 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 dotli 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 brougbt to England or any of his majesty's plantations
firom 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 for
feited, or the value thereof."
Sec. 20. " And be it further enacted by the authority aforesaid, that no govemor,
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 govemor or deputy-governor or judges,
from and after the nine-and-twentieth day of September, one thousand six hundred
and ninety-eight, shall be a factor or factor's agent or agents for the said Company,*
or any other person or persons for the sale or disposal of any negroes, and that
every person offending herein shall forfeit five hundred pounds to the uses afore
said, 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 descend-
* The Royal African Company.

28 THE UNCONSTITUTIONALITY OF SLAVERY.
man, (nolwilhstanding the English government had for a long
time connived al the slave trade.) — The colonial charters required

ants of those who were imported under it, from tbe 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 ap
parent 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
traile,) every obstruction to private enterprise was removed, and the ports of Africa
were laid open to English competition, for ' the slave trade,' — such" (says Mr.
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 aud 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 advan
tageous 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 ap
pears, 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 thom
it could not be Jegally) inferred that th" 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 oet for extending and improving the trade to Africa."
" Whereas, the trade to aud 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 .'o 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 pre
amble 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 funda
mental principles of English law, legal rules of construction imperatively require

THE COLONIAL CIUBTEttB. 29
the I'.'gjslation of th<; colofiico to ho " coiiKonant to reason, and not
repugnant or contrary, but conforrnubl'i, or agtee'dhh:, na nearly a«
that thin meuniiiK •li;ouUl I/'! aKcribed to it, ratlM^r than it uliould l« held to authorizi!
anythin^f rorilrary to natural fiffht, or <;«nlr:iry t'; the luiiilamental principbjn of
Iir)ii«li law.
Wi; ari: •i\>\ii//;(l In put till* coiislrijcli'in upon thin \iri:'>in\ih;, for the furllKT ri/a^pti
tliat it c'lrrcwpoiuh* with the cn:j*,'lin«':lau«eN of tbe slJittite — not one of wbich ni':n-
tioH» DMtli a ihiii;^ M Ihe Irannpt/rtiilim of dumm lo, or the gate of iMivai ia " ttu;
plaiitiitioiinand culmiien." 'i'lji; fir«t wi-lion of i)ii; act i» in tln^w; word*, lo wit;
"Tliat il Dliall and may bu biwliil lor all liin iiiiijchty'K nubjectK Vt Irailu and
trufllc to ami iroiii any port or phu'; in Alin;.!, ]ifi.vit.i:ii tliu port of Siilh'i; in South
)'.ir\r,)ry, ami ibe '/'ape of 'ioml Hope, when, at»uch tiiiicK, and iu micb inanmT, and
in or with «u':li quantity oi goodn, wares and -merchafidlze'i, aw he or llM;y whall
thirik lit, willwut any f<;«trairit wlmtso'jvjr, wav*; mm ih tieri.'in ali-'T ijxjjrfinHcd."
H';re ]^iaiijly in no autiiority (^iviii " lo iraih; and Irallii:" in arjythii)g uxcjit
what In kiuiWH eitlicf to the EinrJitU law, or IIm: law of rialuri', a» " t{'""K, warcn, or
inurcbaiidizeii " — mnim'4 wbi':b rnen want not known, citlur to the Englihh law, or
l/i'; law r,f nature.
The niitvtnii w^'tion ofthe tu-.i in in the«e wordn:
"That all hi» iniiji'hty'n mibji'ctH, who kIwII tradi: to or (rorii any of Ibe porlH or
pl!WM!« of ACnia, betwi'f'u 'Jajw lilanro ami llu; (y.ipi. nl' (',i},:il Hupi', nhiill forevi^r
li'jreuftf'r b'; a body corpnralf ami politic, in name atjd In (lc«;d, by the name of the
'>)iri|iaiiy of MijP'banlK 'IVa-ding to Africa, ami by iJie haiijr: name «hall have piT-
jK'liial wiicc'^Kxion, and whall br'.vc a <:oininon Hi-al, and hy ihal name shall and rnay
'.ue, and b<! nui'd, and do any othi'r aci, loalliT and thinjf, which any olbi:r body
corporale or jiolillc, aft much, may lawi'ully do."
J\'*iiln:r thi* ijor any oIIii.t hf-ction oi" the tM;t purportw lo give tbi» "IJrjmjwny,"
in it» (:o(pora1<! ':ap»<:ity, any aiilbority io buy or (tell HlavM, or lo transport slaves
Uf llw plaotationH and (olonifH.
The twenly-ninth mection of lint ait in in tln'hi: word»!
"And in; it riirllaT enacted, by the authority aliai^naid, thiit no commander or
iri'dNt'T of any tdiip lr(wiin« to Afrira, nIiuH by fraud, Jhrce or violnice, nt by any
otb<:r indlr'.'ct pra<;ti<:e wbatNocvr, tale; on laiard, or carry away fVoio the coast of
Africa, any n<'nro or native of the nald rrmatry, or rnininit, or Hiif(i-r to la; coinmit-
tivl, any vio|cm;e on tl»' iialivcK, to tlie prejudice of the wiid tra/lc j and thut every
perHoM mt nlli'jtding shall, ior every hui'.Ii oI|enc;e, fnrl'-it llie Niiin of one hundred
pounds of law/ill money offlrcat I'ritain ; one iiiojety Iberr'of to the iiHe o/'the Kaiil
''fanpany b'.'reby eMtabliMbeil, and tbeir siieeeKMOrw, /or and tijwards the maintaining
of said (oris aial «eltleincnls, and lla; other inoie'ty to and lar tho use of liim or
1be/n who shall inform or nue for the same."
Nov/, altlioiij(li then; is perhaps no ^ood reawoii to doubt that the ner.ri-l intention
of I'arlianjciil In the pansaf^e of tliis act, was to sliiniilale tbe wlave trad':, and that
there was a tar;it iiiMlerslnriiliiig betwr-en ibe goveriiineiit and the slave dealers, that
the slave tradi; nbould go ou unharincd (in praetiee) by tho fjoveninjent, and
altlmii^b il wa« iindoiibledly aiidcrsiood that Ibis jienafly of om.- Iiimdred pounds
would either not la: suerl for at all, or would be sued for so siddoni as pradically to
interjiose no obstaehj lo the general success of the trade, still, ns no part of the
whole statute gives any authority lo this "(Jompiuiy of Merchants trading to
Africa" to truns|iorl men from Africa agaiiiMt their will, ami as this twenty-ninth
sectlnn ciaitaiiis a special prohibition to individuals, uriiliT penally, to do lo, no ono
can prctiaid that rhe troJo was legalized. If tho penalty hail been but ono pound,
limtuad of one liiimlred pounds, it would have been siillicieiit, in Um to hftTB
3*

30 THE UNCONSTITUTIONALITY- OF SLAVERY.-
circumstances would allow, to the laws, statutes and rights of the
realm of England." That decision, then, if correct, settled the
rebutted the pretence that the trade was legalized. The act, on its f;ice and in its
legal meaning, is much more an act to prohibit, than tp authorize the slave trade.
The only possible legal inlerence from the statute, so far afi coTwerns the " svp-
plying' ihe 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 throivn
open iu order that the facilities for the transportation of these emigi'ants might be
increased. But although there is, in this statute, no authority given for — but, on the con
trary, 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 wilh the cus
toms ofthe 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, ox 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 tbe empire.
The implications, furnished by the act, in favor ofthe toleration of slavery, in the
English settlements, on the coasl of Africa, are the following :
The third section of the act refers to anoiher 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 "ofiicers 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 rhe
possession of the Royal African Company, and of the number of the soldiers therein,
and also the state and condition of the military stores, castles, slaves, canoes and
other vessels and things, belonging to the said company, and necessary foi- the vse
and defence of the said forts and settlements, and shall with all possible desjiatch
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 " casUe
slaves " " for the use and defence ofthe said forts and settlements." The act dots
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 ajipro-
balion of Parliament.
But the most distinct approbation given to slavery by the act, is implied in the
twenty-eighth section, in these words :
" That it shall and may be lawful for any of his majesty's subjects trailing 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 previouslv
established principles of English law, and give the slave holders a le-al ri.'ht of
property in their slaves, in any place where English law had previouslv been ex
pressly established, (as it had been in the North American colonies ) yet it sutii-
ciently evinces that Parliament approved of Englishmen holding slaves iii the
settlements ontheeoast of Africa, in conformity with the customs of that couinrv
But It implies no authority for transporting their slaves to America ; it does notI nm
towards legalizing slavery in America; it implies no toleration even of slavery
anywhere, except upon the coasl of Africa. Had slaverv heen positively and

TSE COLONIAL CHAHTERS. 31
iti».w both for England and the colonies. And if so, there was no
constitutional slavery in the colonies up to the time of the revolu
tion.

explicitly legalized on the coast of Africa, il would still have been a local institu
tion. This reasoning may appear to some like quibbling ; and it would perhaps be ho,
were not the rule well settled that nolhing 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 coasl of Africa,) we have the decision of Lord Mansfield, who
held that il 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
inefiectual 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 con
formity with the law of this act — (a Ihing^ 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 asd
thirty years previous, heen held in bondage in Virginia and elsewhere. And as
no distinclion can now be traced between the descendants cf those who were im
ported under this act, aud 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 il could ba
proved,) that those introduced into the country subsequent Ic 1750, were legally tne
Droperty of those who introduced Ihem.

32 THE UNCONSTITUTIONALITY OF SLAVERY.

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 anoiher 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, occa
sion, and time itself from whence it was created, is erased from
the memory. It is so odious that nolhing can be suffered to sup
port 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 distin
guished 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 mast — 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 bv
the statutes. '

COLONIAL STATUTES. 33
When slavery was first introduced into the country, there were
no laws at all on the subject. Men bought slaves of ihe 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 asswmed the existence of slaves, although no laws defining
the persons who might be made slaves, had ever been enacted.
For instance, they passed statutes for the summary trial and
punishment of slaves ; statutes permitting the masters to chastise
and baptize their slaves,* and providing that baptism should not
be considered, in law, an emancipation of them. Yet all the
while no act had been passed declaring who might be slaves.
Possession was apparently aU the evidence that public sentiment
*" Chastise." An act passed in South Carolina in 1740, authorized slaves to sue
for their liberty, by a guardian appointed for the purpose. The act then provides
that if judgment be for the slave, he shall be set free, and recover damages ; " but
in case judgment shall be given for the defendant, (the master,) the said court is
hereby fully empowered lo inflict such corporeal punishment, not extending to life
or limb, on tlie ward of the plaintiff, (the slave,) as they in their discretion shall see
fit." — Brevard's Digest, vol. 2, p. 130.
" Baptize." In 1712 South Carolina passed this act :
" Since charity and the Christian rehgion 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 properly 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 whatso
ever, to receive and profess the Christian faith, and be thereunto baptized. But that
notwithstanding such slave or slaves shall receive and profess the Christian reli
gion, and be baptized, he or they shall not thereby be manumitted or set free, or his
or their owner, master or mistress lose his or their civil right, property and authority
over such slave or slaves, but that the slave or slaves, with respect to his or their
servitude, shall remain and continue in the same state aud condition, that he or
they was in before the making of this act." — Grimke,p. 18. Brevard, vot. 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 hy the charity and piety of their owners made partakers of the blessed sacra
ment of baptism, should by virtue of their baptism be made free ; It is enacted and
declared by this grand assembly, and the authority thereof, that the conferring of
baptism doth not alter the condition of the person as to his bondage or freedom ;
that divers masters, freedfrom this doubt, may more carefully endeavour the propa
gation of Christianily by permitting children, though slaves, or those of greater
growth, if capable to be admitted to that sacrament." — flemng-'s Statutes, vol 2.
p. 260.

34 THE UNCONSTITUTIONALITY OF SLA^EEy.
demanded, of a master's property in his slave. Under such a
code, multitudes, who had either never been puichased as slaves,
or who had once been emancipated, were doubtless seized and
reduced lo 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 pur
pose of declaring who might be slaves ; and then the persons were
so described as to make the designation of no legal effect, ai 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 vvas passed that would cover the case of the Africans gene
rally, and make them slaves. Slavery was introduced in 1620,
but no act was passed even purporting to declare who might be
slaves, until 1670. In that year a statute was passed in these
words: "That all servants, not being Christians, imported into
this country by shipping, shall be slaves for their lives."*
This word " servants " of course legally describes individuals
known as such to the laws, and distinguished as such from other
persons generally. But no class of Africans " imported," were
known as " servants," as distinguished from Africans generally,
or in any manner to bring them within the legal description of
" servants," as here used. In 1682 and in 1705 acts were again
passed declaring " that all servants," &c., imported, should be
slaves. And it was not until 1748, after slavery had existed an
hundred and twenty-eight years, that this description was changed
for the following :
" That aE persons, who have been or shall be imported into this
colony," &c., &c., shall be slaves.!
In 1776, the only statute in Virginia, under which the slave
holders could make any claim at all to their slaves, was passed as
late as 1753, (one hundred and thirty-three years after slavery
had been introduced ;) all prior acts having been then repealed,
without saving the rights acquired under them.t

* Hemng, vol. 2, p. 283.
tHening. vol. 5, p. 547-8.
t In 1 763 Virginia passed a statute, occupying some twelve or fifteen pages of the
statute OOOK, 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, fo-

COLONIAL STATUTE!) 35
Even i*" the colonial charters had contained no express prAhibi-
lion 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 fol
lows 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
Dnited Stales — that allare 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 Meirtin.)
In South Carolina, the only statutes, prior to the revolution, tha*
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.*
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 stat
utes, 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 ofthe same act, which was in these words :
" That all persons loho have been, or shall be imported into this colony, by sea or
land, and were not Christians in their native country, except Turks and IMoors 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 tbe
condition of their mothers and the particular directions of this act."
"¦ The following is the preamble and the important enacting clause of this statute
<sf 1740:
** Whereas, in his majesty's plantations in America, slavery has been introduced

36 THE UNCONSTITUTIONALITY OF SLAVERY.
The same law, in nearly the same words, was passed in Geor-
• gia, in 1770.
These were the only general statutes, under which slaves were
held in those four States, (Virginia, North Carolina, South Caro-
lina-aHd Georgia,) at the time of the revolution. They would all,
for the r^sons given, have amounted to nothing, as a foundation
for the slavery now existing in those states, even if they had no;
beetli'' specially prohibited by their charters.

CHAPTEE V.
THE DECLARATION OF INDEPENDENCE.
Admitting, for the sake of the argument, that prior to the revolu
tion, 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 crovyn. 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

and allowed ; and the people commonly called negroes, Indians, mulattos and mes
tizoes have (been) deemed absolute slaves, and the subjects of properly 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 sub
jection and obedience, and the owners and other persons having the care and
government of slaves, may be restrained from exercising loo great rigor and craelty
over them ; and that the public peace and order of this province may be preserved :
Be il enacted. That all negroes, Indians, (/ree Indians in amity with this govern
ment, 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 bom, shall be and they are, hereby declared to be and
remain forever hereafter absolute slaves, and shall follow the condition of tha
mother," &c. — Grimlce, p. 1 63 - 4. Brevard, vol. 2, p. 229.

THE DECIAKATION OF INDEPENDENCE. 37
tkemselves 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 hfe, 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 countn,- ratified the act of absolu
tion, 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 admilted that this principle
was the law of the country at that particular time, (1776) — even
though it had continued to be the law for only a year, or even a
day. For if it were the law of the countrj' even for a day, it
freed every slave in the country — (ifthere 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
si?tce 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 au
thorize slavery, are indefinite, and uncertain in their apphcation,
and for that reason void.
But again. The people of this countri,- — in the very instni-
ment by which they first announced their independent political
existence, and first asserted their right to establish governments
of their owti — declared that the natural and inalienable right of
all men to Hfe, liberty, and the pursuit of happiness, was a " self-
evident truth."
Now, aU " self-evident truths," except such as may be exphcifly,
or by necessary implication, denied, (and no government has a
right to deny any of them,) enter into, are taken for granted bj',
und constitute an essential part of all constitutions, compacts, and
systems of govemment whatsoever. Otherwise it would be im
possible for any systematic govemment to be established ; for it
must obviously be impossible lo make an actual enumeration of
all the " self-evident traths,'' that are to be taken into account in
the administration of such a govemment. This is more especially
tme of governments founded, like ours, upon contract. It is
clearly impossible, in a contract of government, to enumerate aU

38 THE unconstitutionality of slavery.
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 enume
rated, make a part of aU 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 there
fore taken for granted. And it is the same in aU compacts of
government, unless particular trulhs 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 constitu
tions, 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 funda
mental constitution, or in any other explicit or authoritative man
ner. 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
4lh of July, '76, they collectively asserted it, as their justification
and authority for an act the most momentous and responsible of
any in the history of the country. And this assertion has never
been retracted by us as a people. We have virtually reasserted
the same truth in nearly every stale constitution since adopted.
We have virtually reasserted it in the national constitution. It
is a truth that lives on the tongues and in the hearts of all. It is
true we have, in our practice, been so unjust as to withhold the
benefits of this truth from a certain class of our fellow-men. But
even in this respect, this truth has but shared the common fate of
Olher trulhs. They are generally allowed but a partial applica
tion. Still, this truth itself, as a truth, has never be^n denied by
us. as a people, in any aulhenOc form, or otherwise than impliedl'^'

THE DECLARATION OF INDEPENDENCE. 39
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 lo 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 il 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 bc 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.

CHAPTEE 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 ihem
established, or recognized slavery.
All those parts of the stale 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 lo 1789. Those two states went on, beyond
this period, under their old charters.*
*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 ; Mas
sachusetts, 1780 ; New Hampshire, 1763.
These earlv Constitutions ought to be collected and ] ublished with appropriate
notes.

40 THE UNCONSTITUTIONALITY OF SLAVERY.
The eleven constitutions formed, were all democratic in their
general character. The most of them eminently so. They gener
ally 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 authorita
tive manner. Most or all of them had also specific provisions
incompatible with slavery. Not one of them had any specific
recognition of the existence of slavery. Not one of them granted
any specific authority for its continuance.
The only provisions or words in any of them, that could be
claimed by anybody as recognitions of slavery, are the following,
nz. :
1. The use of the words " our negroes " in the preamble to the
eonstitution of Virginia.
2. The mention of " slaves " in the preamble to the constitution
of Pennsylvania.
3. The provisions, in some of the constitutions, for continuilig
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 ofthe constitutions, ofthe 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 govemment of the constitution
of Virginia speaks of negroes in this connexion, to wit : It charges
George die Third, among other things, with "prompting mlf
negroes lo 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 ex
clude 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 peo
ple 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

THE STATE CONSTITUTIONS OF 1789. 41
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 enjojrment 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 common
wealth, " 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 incom
patible with that. Such, for instance, is the following, whicn
consiimtes the first article of the " Declaration of Rights of the
Inhabitants," (i. e. of all the inhabitants) " of the state of Pennsyl
vania." " 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, possess
ing and protecting property, and pursuing and obtaining happiness
and safely."
The 46th section of the frame of govemment is in these words.
" The Declaration of Rights is hereby declared to be a part of
the constitution of this commonwealth, and ought never to be
violated on any pretence whatever."
Slavery was clearly impossible under these two constitutional
provisions, to say nothing of others.
3. Several of the constitutions provide that all the laws of the
colonies, previously " in force" should continue in force until re
pealed, unless repugnant to some of the principles of the constitu
tions themselves.
Maryland, New York, New Jersey, South Carolina, and per
haps one or two others had provisions of this character. North
Carolina had none, Georgia none, Virginia nom. The slave
laws of these three latter states, theh, necessarily fell to the ground
on this change of government.
Maryland, New York, New Jersey and South Carolina had acts
upon their stanite books, asmming the existence of slavery, and
4*

42 THE UNCONSTITUTIONALITY OF SLAVEEY.
pretending to legislate in regard to it; and it may perhaps be
argued that those laws v/ere continued in force under the provision
referred to. Bul those acts do not come within the above descrip
tion 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 nad 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 stiU other reasons agains*
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 vrith such particularity as lo
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 spe
cific provisions in her constitution incompatible with slavery, to wit :
" That the common law of England ***** shall remain m
force, until altered by a future law of the legislature ; such pans
only as are repugnant to the rights and privileges contained in this
charier." (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
entitied 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," ivithout 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
Ihey 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 IS.^

THE STATE CONSTITUTIONS OF 1789. 43
jhat the electors of that state should be 'free white men." That
of Georgia (Art. 11,) and that of North Carolina (Art. 40,) ust
the term " free citizen." That of Pennsylvania (Se;. 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 wiU be seen hereafter, from the connex
ion 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 correl
atives, 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 tho colonial charters, viz., tc
describe those persons possessed of the privilege of citizenship, or
some corporale 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 vrit, as the correlatives or opposites of slavery — then it would
oe argued that they involved a recognition, at least, of the exist
ence of slavery.
But this argument — whatever it might be worth to support an
implied admission of tlie 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, insinua
tions, 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
admilted 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 coniinuing
slavery. To call one man free, gives no legal authority for mak

14 THE lr^-CO^fSTrT^TTIONALlTT OF SL-l^TiKY.
ing another man a slave. And if, as in die case of Oiese constitu
tions, no express autiiority for slaverj- were given, slavery would
be as much unconstitutional as diough diese words had not been
used. The use of tiiese 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 constraction of all statutes, contracts
and legal instruments whatsoever — that, is, those which courts
design, nat to invalidate, but to enforce — that where words are
susceptible of two meanings, one consistent, and the other incon
sistent, ^-ith hbertj', 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 aO these early state
constitutions, is there anything in the other parts of them, to show
that these words " free " and " freemen '' are used as the correla
tives of slavery. The rule of law, therefore, is imperative, that
they must be regarded in the sense consistent with libertj- and
right. If this rule, that requires courts to give an innocent construction
to all words that are susceptible of il, were not imperative, courts
might, at their own pleasure, pervert the honest meaning of the
most honest statutes and contracts, into sometiiing dishonest, for
there are almost al\vays 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 dis
honest meaning. If courts could lawfully depart from the rule,
that requires them to attribute an honest meaning to all langTiage
that is susceptible of such a meaning, it w^ould be nearly impossible
to frame eidier 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 constimtions as to contracts and
statutes ; for constitutions are but contracts between the people,
whereby they grant autiiority to, and estabHsh law for the govem
ment. What odier meaning, then, than as correlatives of slavery, are
the words " free " and " freemen" susceptible of, as diey are used
in the early state constitutions ?
Araong the definitions given by Noah Webster are these :

THE STATE CONSTITUTIONS OF 1789. 45
" Freem'an. One who enjoys, or is entitied 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 /ree o/the city of London."
" Possessing without vassalage, or slavish conditions ; as a man
free o/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 lo 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 tnereby, 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 appren
ticeship 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 anoiher. Thus members of incorporated com
panies were called "¦freemen of die company," or "free members
of the company ;" and were said to be "free of the said company."
The citizens of an incorporated city were called " the freemen of
the city," as " freemen of the city of London."
In Jacobs' Law Dictionary the following definitions, among
others, are given of the word " freeman.''
"Freeman — liber homo." * * " In the distinction oT a
freeman from a vassal under the feudal policy, liber homo was
commonly opposed to vasstes, 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 to^vn, or of any olher corporate body, con
sisting, among other members, of those called freemen."
" There are three ways to be a freeman of London ; by servi
tude of an apprenticeship ; by birthright, as being the son of a

46 THE UNCONSTITUTIONALITY OF SLAVERY.
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 certifi
cate of the Mayor and Aldermen, * * * as the custom of
distributing the effects of freemen deceased : of enrolling appren
tices, or that he who is /ree 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 olher 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 consonant^ 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 distin
guished from aliens, or persons attainted, or deprived of their
pohtical privileges as members of the state. Thus they use ihe
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, wilh 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 mver used as the correlatives, or opposites of
slaves or slavery — and for the reason that they have in Enn-land
no such persons or institutions, known to their laws, as slaves or
slavery. The use of the words " free " and " freemen," therefore,
do not in England at all imply the existence of slaves or slavery.
This use of the words " free '¦ and " freemen," which is common
to the English law, was introduced into this country at its first set-

THE STATE CONSTrTUTIONS OF 1789. 47
tlement, in all, or very nearly all the colonial charters, patents,
&c., and continued in use, in this sense, until the time of the
revolution ; and, of course, until the adoption of the first slate con
stitutions. *
The persons and companies, to whom the colonial charters
were granted, and those who were afterwards to be admitted as
their associates, were described as " freemen of said colony,"
" freemen of said province," " freemen of said company," " free
men of the said company and body politick," &c. (See charter of
Rhode Island.)
Many, if not all the charters had a provision similar in sub
stance to the following in the charter to Rhode Island, viz. :
" That all and every the subjects of us, our heirs and success
ors," (i. e. of the king of England granting the charter,) " which
are already planted and settled within our said colony of Provi
dence 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 bom there,
or on the sea going thiiher, 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 follovring enactment of William Penn, as proprietary and
Govemor of the Province of Pennsylvania and its territories, illus
trates one of the common uses of the word " freeman,'' as known
lo the English law, and as used in this country prior to the
revolution — that is, as distinguishing a native bom citizen, and
one capable of holding real estate, &c., from a foreigner, rwt
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 belong
ing, 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
*he acceptation of the laws of England, the consequences of wliich
¦may prove very detrimental to them in their estates and traffic,
* Since that time the words " free" and " freemen" have been gradually falling
into disuse, and the word citizen been substituted — doubtless forthe reason thatit
is not pleasant to our pride or our humanity to use words, one of whose significa-
tions serves to suggest a contrast between ourselves and slaves.

48 THE unconstitutional;ty of slavery.
and so injurious lo the prosperity of this province and terntones
thereof. Be it enacted, by the proprietary and governor ot the
province and counties aforesaid, by and witii the advice and con
sent of the deputies of \he 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
sa-me, 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, pro
prietary 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 per
son 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 ex
pressed, paying at his admission twenty shillings sterling, and no
more, anything in this law, or any other law, act, or thing in this
province, to the contrary in any wise notwithstanding."
" Given at Chester," &c., " under the hand and broad seal of
William Penn, proprietary and governor of this province and
territories thereunto belonging, in the second year of his govem
ment, by the king's authority. W. Penn." *
Up to the time of our revolution, the only meaning which the
words " free " and " freemen " had, in the English law, in the
charters granted to the colonies, and in the important documents of
a political character, when used to designate one person as
distinguished from another, was to designate a person enjoying
some franchise or privilege, as distinguished from aliens or persons
not enjoying a similar franchise. They were never used to
designate a free person as distinguished from a slave — for the
very sufficient reason that all these fundamental laws presumed
that there were no slaves.
Was such the meaning of the words " free " and " freemen," as
used in the constitutions adopted prior to 1789, in the States of
Georgia, North and South Carolina, Maryland, Delaware and
New York? '
The legal rale of interpretation before mentioned, viz., that an
innocent meaning must be given to all words that are susceptible
* Dallas' edition of the Laws of Pennsylvania, vol. 1, Appendix, page 25.

,THE STATE. CONSTITUTIONS OF 1789 49
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 the'se constitutions
have themselves explicitly given to the words this meaning.
While not one of them has given them a meaning correlative
with slaves, inasmuch as none of them purport either to establish,
authorize, or even to know of the existence of slavery.
The constitution of Georgia (adopted in 1777) evidently uses
the word " free " in fliis 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 per
son 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 thttt he shall not be capable of being elected a representative
until after two years' residence."
The constitution of New York, (adopted in 1777,) uses the word
m the same manner :

50 the UNCONSTITUTIONALITY OF SLAVERY.
" 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 reprtsentatives of the said county in
assembly, if during the time aforesaid he shall have been a free
holder, possessing a freehold of the va^e of twenty pounds, with
in 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 respect
ively, shall be entitled to vote for representatives iu 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 /ree
white fnan, and no other person," &c., " shall be deemed a person
qualified to vote for, and shall be capable of being elected a repre
sentative." 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 olher persons than " white " may
be slaves. Not so. No olher parts of the constitution authorize
such an inference ; and the implication from the words themselves
Clearly is, that some " while" 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 impli
cation would be that some "white" persons were, or might be
slaves. There is, therefore, no alternative but to give the word
"free," in this instance, the same meaning that it has in the
constitutions of Georgia, North Carolina and Pennsylvania.
In 1704 Soulh Carolina passed an act entitied, "An act for
making aliens free of this part of the Province." This statute

THE ARTICLES OF CONFEDERATION 61
remained in force until 1784, when it was repealed by an act
entitled "An act to confer the right of citizenship on aliens."*'
One more example of this use of the word "freeman.'' The
constitution of Connecticut, adopted as late as 1818, has this pro
vision :
" Art. 6, Sec. 1. All persons who have been, or shall hereafter,
previous to the ratification of this constitution, be admitted freeme?i,
according to the existing laws of this Slate, 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 exist
ence 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 constitu
tional slavery in the country up to the adoption of the constitu
tion of the United States.

CHAPTER VII.
THE ARTICLES OF CONFEDERATION.
The Articles of Confederation, (formed in 1778,) contained no
recognition of slavery. The only words in them, that could be
claimed by anybody as recognizing slavery, are the following, in
Art. 4, Sec. 1.
" The better to secure and perpetuate mutual friendship and in
tercourse among the people of the different States in this Union,
the free inhabitaiits of each of these States, paupers, vagabonds
and fugitives from justice excepted, shall be entitled to all the pri
vileges 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
* Cooper's edition of the Laws of South Carolina, vols 2 and 4. " Aliens."

52 the UNCONSTITUTIONALITY OF SLAVEEY.
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 Eng
lish 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" iu 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 cor
porate capacity ; and not, like the constitution, a government estab
lished by the people in their individual character. The Confedera
tion, then, being a league between states or corporations, as such,
of course recognized nothing in the character of the State govem-
ments except what their corporate charters or State constitutions
uthorized. And as none of the State constitutions of the day
ecognized 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 Olher 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 in
stance, 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 die States, to en-

THE ARTICLES OF CONFEDERATION. 63
atle even such to the franchises of suffrage, and of eligibiUty 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 con
stitution, 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 fran
chises enjoyed by the " inhabitants" and " people" of 'the Stales.
Even the privilege of residence he assumes to be a franchise en
titling 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 fof 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 ali the privileges and immu
nities of free citizeTis 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 anoiher, and people in another ; or
what was meant by superadding lo ' 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
oi free inhabitants of a State, although not citizens of such State,
are entitled, in every other State, to all the privileges of free citi
zeTis 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 Stale, 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 diffi
culty is diminished only, not removed. The very improper power
would still be retained by each State, of naturalizing aliens in every
5*

54 I'llE UWL.'OllSTllUllUlSjlL.lll or Oi^/iVtKH
other State. In one State, residence for a short time confers aU the
rights of citizenship ; in another, c ualifications of greater impor
tance are required. An alien, therefore, legally incapacitated fof
certain rights in the latter, may, by previous residence only in the
former, elude his incapacity, and thus the law of one Slate be pre
posterously rendered paramount to the laws of another, within the
jurisdiction of the other.
" We owe it to mere casualty, that very serious embarrassments
on this subject have been hitherto escaped. By the laws of several
States, certain descriptions of aliens, who had rendered themselves
obnoxious, were laid under interdicts inconsistent, not only with
the rights of citizenship, but with the privileges of residence. What
would have been the consequence, if such persons, by residence,
or otherwise, had acquired the character of citizens under the laws
of another State, and then asserted their rights as such, both to res
idence and titizenship, within the State proscribing them? What
ever 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, Mith
great propriety, made provision against them, and all others pro
ceeding from the defect of the confederation on this head, by
authorizing the general government to establish an uniform rule
of naturaUzation throughout the United States." '
Throughout tbis whole quotation Mr. Madison obviously takes
it for granted that the word " free" is used in the articles of con
federation, as the correlative of aliens. And in this respect he no
doubt correctiy 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 OP THE UNITED STATES.
We come now to the period commencing with the adoption of
the constitution of the United States.
We have already seeh that slavery had not been authorized or
established by any of the fundamental constitutions or charters
that had existed previous lo this time ; that it had always been a
mere abuse sustained by the common consent sf ihe strono-est
party, in defiance cf the avowed constitutional principles of theit

THE CONSTITUTION OF THE UNITED STATES. 55
governments. Aiid the question now is, whether it was constitu
tionally 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 govern
ments 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 guaran
tied to the Stales 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 exist
ence, 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 7iot recognize it as a con
stitutional 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 re
cognize slavery, as a constitutional State institution, such intended
recognition would have failed of effect, and been legally void, be
cause slavery then had no constitutional existence to be recognized.
Suppose, for an illustration of this principle, that the constitu
tion 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 cliildren, or
that men without the charge of crime, should be maimed —
deprived, for instance, of a hand, a foot, or an eye. This inlended
recognition, on the part of the constitution of the United States,
of the legality of such a practice, would obviously have- failed of
all legal effect — would have been mere surplusage — if il should
appear, from an examination of the State constitutions themselves.
that they had really conferred no such power upon the legis
latures. And this principle applies wilh the same force lo laws
that would arbitrarily make men or children slaves, as to laws
that should arbitrarily order them to be maimed or murdered.

56 THE UNCONSTITUTIONALITY OF SLAVEEY.
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," wiihout discrimi
nation. 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 citi
zens of a higher govemment, under a constitution that was " the
supreme law of the land," " anything in the constitution or laws
ofthe States to the contrary notwithstanding." If the State gov
ernments 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 govemment over another,
ihan 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 die
United States, not only does not recognize or sanction slavery, as
a legal institution, but dial, on die contrary, it presumes all men

THE CONSTITUTION OF THE UNITED STATES. 57
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 amy of the United States.
In the first place — although the assertion is constantly made.
and rarely deniedj^ 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 neces
sarily sanction it, (that is, if slavery then had any constitutional
existence to be sanctioned.) The intentions of the constitution
are the only means whereby it sanctions anything. And its
intentions necessarily sanction everything to which they apply,
and which, in the nature of things, they are competent to sanc
tion. 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?
Weiare not accustomed to use the word "intention," when speak
ing 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 constitu
tion 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 con
cealing such an intention ; and then by the aid of exterior, circum
stantial and historical evidence, they attempt to enforce upon the
mind the conclusion that, as matter of fact, such was tiie intention

58 THE UNCONSTITUTIONALITY OF SLAVERY.
of tiiose who drafted the constitution ; and thence they finally
infer that such was the intention of the constitution ilself.
The error and fraud of this whole procedure — and it is one
purely of error and fraud — consists in this — that it artfully sub
stitutes the supposed Intentions of those who drafted the constitu
tion, for the intentions of the constitution itself ; and, secondly, it
personifies the constitution as a crafty individual ; capable of both
open and secret intentions ; capable of legally participating in, and
giving effect to all the subtleties and double dealings of knavish
men ; and as actually intending to secure slavery, while openly
professing to " secure and establish liberty and justice." It per
sonifies 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 "'s 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 dis
guise ; 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
nolhing 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 lo be,, and can then strain or pervert
the ordinary meaning of its words, in order to make them utter
those intentions, we can make anything we choose of any legal
instrument whatever. The legal meaning of tbe words of an in
strument is, therefore, necessarily our only guide to its intentions.
In ascertaining the legal meaning of the words of the constitu
tion, these rules of law, (tbe reasons of which will be more fully
explained hereafter,) are vital to be borne ccstantiy in mind, viz. :
1st, that no intention, in violation of natural justice and natural
right, (like that to sanction slavery,) can be ascribed to the consti-

THE CONSTITUTION OF THE UNITED STATES. 59
tution, unless that intention be expressed in terms that are legall'g
competent to express such an intention ; and, 2d, that no terms,
except those that are plenary, express, explicit, dist'iact, unequivo
cal, and to which no other meaning can be given, are legally com
petent to authorize or sanction anything contrary to natural right.
The rule of law is materially different as to the terms necessary to
legalize and sanction anything contrary lo natural right, and those
necessary to legahze things that are consistent with natural right.
The latter may be sanctioned by natural implication and inference ;
the former only by inevitable implication, or by language that is
full, definite, express, explicit, unequivocal, and whose unavoidable
import is to sanction the specific wrong inlended.
To assert, therefore, that the constitution intended to sanction
slavery, is, in reaUty, equivalent to asserting that the necessary
meaning, the unavoidable import of the words alone of the consti
tution, come fully up to the point of a clear, definite, distinct, ex
press, explicit, unequivocal, necessary and peremptory sanction of
the specific thing, human slavery, property in man. If the neces
sary 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 1 No
one, who knows anything of law, and the meaning of words. Not
even the name of the thing, alleged to be sanctioned, is given.
The constitution itself contains no designation, description, or
necessary admission of the existence of such a thing as slavery,
servitude, or the right of property in man. We are obliged to go
out of the instrument, and grope among' the records of oppression
lawlessness and crime — records unmentioned, and of course un
sanctioned by the constitution — io 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 enigmati
cal words, by unnecessary implication and inference, by innuendo
and double entendre, and under a name that entirely fails of describ
ing the thing. Everybody must admit that the constitution itself
contains no language, from which alone any court, that were either
strano^ers to the prior existence of slavery, or that did not assume
its prior existence to be legal, could legally decide that the consti
tution sanctioned it. And this is the true test for determining
whether the constitution does, or does not, sanction slavery, viz..

60 THE UNCONSTITUTIONALITY OF SLAVERY.
whether a court of law, strangers lo the prior existence of slavery
or not assuming ils prior existence to be legal — looking only af
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
slaver}' could stand no such test. The fact is palpable, that the
constitution contains no such legal sanction ; that it is only by un
necessary implication and inference, by innuendo and double-eii-
tendre, by the aid of exterior evidence, the assumption of the prior
legality of slavery, and the gratuitous imputation of criminal in
tentions that are not avowed in leged 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 unplications, inferences, innuendos and double-entendre, all
aid of exterior evidence, all assumptions of the prior legaUty 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, per
emptory 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 fLx 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 re
marks in regard to legal rules of interpretation in general. Many
persons appear lo have the idea that diese rales have no foundation
in reason, justice or necessity ; that they are Uttie else than whim
sical and absurd conceits, arbitrarily adopted by the courts. No idea
can be more erroneous than this. The rules are absolutely indis
pensable to the adn^inistration of the justice arising out of any class
of legal instruments whatever — whedier 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 alf these instraments,
the Zaw fixes, and necessarily must fix their meaning ; and for the
obvious reason, diat odierwise dieir meaning could not be fixed at
all. The parties to die simplest contract may disagree, or pretend
lo disagree as to its meaning, and of course as to their respective

THE CONSTITUTION OF THE UNITED STATES. 61
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 mean
ing. The people of a nation may establish a compact of govern
ment. The motives of one portion may be to establish liberty,
equality and justice ; and they may think, or pretend to think, that
the words used in the instrument convey that idea. The motives
of another portion may be to establish the slavery or subordination
of one part of the people, and the superiority or arbitrary power of
the other part ; and they may think, or pretend to think, that the
language agreed upon by the whole authorizes such a government.
In all these cases, unless there were some rules of law, applicable
alike to all instruments, and competent to settle their meaning,
their meaning could not be settled ; and individuals would of
necessity lose their rights under them. The law, therefore, fixes
their meaning ; and the rules by which it does so, are founded
in the same justice, reason, necessity and truth, as are other legal
principles, and are for that reason as inflexible as any other legal
principles whatever. They are also simple, intelligible, natural,
obvious. Everybody are presumed to know them, as they are pre
sumed 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 plea
sure 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 constitu
tions, would be rendered impossible.
What, then, are some of these rules of interpretation *
fi

62 THE UNCONSTITUTIONALITY OF SLAVERY.
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 meamng, and
only that meaning, which is consistent with right, shall be
attributed to them — unless other parts of the instrument overrale
that interpretation.
Another rule, (if indeed it be not the same,) is, that no language
excepi that which is peremptory, and no implication, except one
that is inevitable, shall be held to authorize or sanction anything
contrarjr to natural right.
Another rale 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, doubt
less 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 expUcit and peremptory
language that legislatures could employ. But judges have always,
in this country and in England, been dependent upon the execu
tive 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 accompUsh, 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 wOl of those in whose
power they were. It is natural also that the executive should ap
point, and that the legislature should approve the appointment of
no one for the office of judge, whose integrity they should sup
pose would stand in the way of their purposes. The con.sequence
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
thehr enactments, though inconsistent with natural right. But, as
if sensible of the degradation and crimihalitj- of so doing, they
have made a stand at the first point at which they could make it,
vrithout bringing themselves in direct coUision ^vith 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 Ian-

THE cajEsmmos of tbr csfteb stajxs. 63
gimge be so es^kat and perranptfHj, that iheie is no way trf' eTaa-
ing ils andmritf , bat bj Sady denying the authonty of those who
enacted it. lliey (the coon) will themsehes add nothing- to the
language of the stamte, to hdp oat its aipposed meaning. They
in]l imply nodiii^, infer nothing, and assonse nothing, except
what is ineTitahle ; they will not go oat of the letter of the siatate
in search of any historical CTidence as to the meanii^ of die
i^islaiaTe, to enaUe them to eifectnate any mpat intentions not
fully expressed by the aanue iiselil Wheiever a sianrie is snp-
pi^ed to hate in view die accompliahment of any tu^ast end, they
win apply the most sningent principles of constraction to preTSOt
that obiect being efiected. Tbey -nill not go a hair's laeaddi
beyond the Uieial (x- ineTitaUe import qf the words rf the statntE,
eren thon^ ihey shoidd be conscious, aH the while, diat the real
intEDtiiHis of die makers of it would be entirely defeated by their
lefbsaL The mle (as has beat already stated) is laid down by
the Supreme Comt of the United States in these words :
" Where ^^its are infiinged, where fimdamental pinoles are
ovetthrown, where the general system of the laws fe departed from,
die legislative intsation most be e^essed with irredstiile tiear-
nea, to indoce a cooit of police to suppose a d^ign to efiect
such directs.' — {Umited States vs. F-isker et aL, 2 Craitdk,
390.)* Such Iks become die setded doctiine of courts. And ahhoo^
it does not come np to the trae siandaid of law, y^ it is good in
itself, so &r as it goes, and oo^t to be unflinchingly adhered to,
not merely for its own sake, bat also as a scaffidding, frmi which.
to erect diat higher standard of law, to wit, that no langnage or
anihority wbatever can legalize anything inconsistent with natural
jnslioe.t

* TUs hngn^e of the SapKine Cant *"¦*»"¦= sa »ii«»i>j.iii at the tnth cf the
chage jast made gainst jorjg^ viz., ibat lalita ihaa kse theJT cffies;, tbef w3I
'ncfale a-hst thef^ kaaw la be bw, ia sAsernency la ibe IgjIAlaies oi vhom
ikef def^d ; fir it admits, 1st, tlet the piesenation of ra^'s ristUx is the vital
inKiflear]aw,and,ad,that eooits (aod tbe Sajaeine Court of i^ Uaiied Steles
ia paiticabr) vill liain]de apm thai faiaeifle at the Wiii^iii^ of the kgislatBR^
-vfaea the iwwi«ft» coanES ia tbe sbape of a ^ansle of soch ~ irrzss^Si^eeieem^x^
that its —«»«¦¦» camxt he eraded.
t ¦ Lais are caxtstnied stritdr to sare a right-" — TfUhie^ et J. ts. ^rnmeU
a a!., I BeUmbL, CCS- 3is'.
" Xo la«- ¦Bill isaieaconstnaciH«ilodo»i«c.J;aBdtlieieaiesiBiieihii^s«iieh
the law feiTsrs. <bj socne it distites ; it bnneih thresh ihiags tbat oome f?vsi de
ei^T of naKBe.'  'jsidi's Lsx ZJifisai— -S-V I.J*-.

64 THE UNCONSTITUTIONALITY OF SLAVERY.
Another reason for the rules before given, against all construe
tions, impUcations and inferences — except inevitable ones — ii>
favor of injustice, is, that but for them we should have.no guaranty
that our honest contracts, or honest lavsrs would be honestly
administered by the judiciary. It would be nearly or quite
impossible for men, in framing their contracts or laws, to use lan
guage so as to exclude every possible implication in favor of
wrong, if courts were allowed to resort to such implications. The
law therefore excludes them ; that is, the ends of justice — the
security of men's rights under their honest contracts, and under
honest legislative enactments — make it imperative upon courts of
justice to ascribe an innocent and honest meaning to all language
that will possibly bear an innocent and honest meaning. If courts
of justice could depart from this rule for the purpose of upholding
what was contrary to natural right, and should employ their inge
nuity in spying out some impUed 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 t)f 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 govem
ment, for the judiciary to give any other than an honest and inno
cent meaning to any language, that would bear such a construction.
The same reasons that forbid the allowance of any unnecessary
impUcation or inference in favor of a wrong, in the constraction of
a statute, forbids also the introduction of any extraneous or histori
cal evidence to prove that the intentions of the legislature were to
sanction or authorize a wrong.
The same rules of constraction, that apply to statutes, apply
also to all those private contracts between man and man, v}hich
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

THE CONSTITUTION OF THE UNITED STATES. 65
them. At the same time, a plaintiff, or party tliat wishes to set
up a contract, or that claims its fuUilmenl, will not be allowed to
offer any evidence exterior to ils words, to prove that tlie 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 mean
ing, must be given to all language that will possibly bear such a
meaning. All wiU 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
overthrovsm, where the general system of the law is departed from,
the legislative intention must be expressed -with irresistible clear
ness, 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' indiriduals.
This contract of the people at large becomes a law unto the judi
ciary 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 enact
ment 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
6*

66 THE UNCONSTITUTIONALITY OF SLAVERY.
the government, as it is that they should be restrained fiom per
verting the meaning of a private contract, or a legislative enact
ment ? Obviously written compacts of govemment 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
consisteni with natural rights — as, for example, in defence of life,
Uberty, chastity, &c. Here is an innocent and just meaning, of
which the words are susceptible ; and such is therefore the extent
of their legal meaning. If the courts could go beyond the inno
cent 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 vnrong 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 inno
cent use. And why? Simply because justice is the end of aU
law — the legitunate 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 wilh foreign nations, and
among the several States, and with the Indian tribes."
This power has been held by the Supreme Court to be an exclu
sive one in the general government— and one that cannot be
controlled by the States. Yel it gives Congress no constitutional
authority to legalize any commerce inconsistent with natural

THE CONSTITUTION OF" THE UNITED STATES. 67
justice between man and man ; although the mere verbal hnport
of the words, if stretched to their utmost tension in favor uf ihe
wrong, would authorize Congress lo legaUze a commerce in
poisons and deadly weapons, for the express purpose of having
them used in a manner inconsistent wilh natural right — as for
the purposes of murder.
At natural law, and on principles of natural right, a pereon.
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 legaUy an accessary to the murder thai
should be committed with it. And if the grant to Congress of a
" power to regulate commerce," can be stretched beyond tlie
innocent meaning of the words — beyond the power of regulating
and authorizing a commerce that is consistent Avith natural
justice — and be made to cover everything, intrinsicaUy criminal,
that can be perpetrated under the name of commerce — then Con
gress have the authority of the constitution for granting to individ
uals the Uberty of bringing weapons and poisons from " foreign
nations " into this, and from one State into anotiier, and seUing
them openly for the express purposes of murder, vrithout any
Uability to legal restraint or punishment.
Can any stronger cases than these be required to prove the
necessity, the soundness, and the inflexibiUty 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 ordy an innocent meaning to language whose mere verbal
import might be susceptible of both an innocent and cruninal
meaning ? If this rule of interpretation could be departed from,
there is hardly a power granted to Congress, that might not law
fully 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 serrice 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 «;ervice or
\abor; but shall be delivered up on claim of the parly to whom
such service or labor mav be due."

68 THE unconstitutio'nality of slatesy.
There are several reasons why this clause renders no sanction
to slavery.
1. It must be constraed, 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, obri-
ously 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 Stales 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 ser
vants—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 sub
ject 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 speciaUy 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. *

* In Ihe convention Ihat framed the constitution, when this clause was under
discussion, " servants " were spoken of as a distinct class from " slaves " Fm
instance, " Mr. Butler and Mr. Pickney moved to require ' fugitive slaves and ser

the constitution of THE UNITED STATES, 69
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 atten
dant of slavery, that test would of itself abolish slavery ; because
aU 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"'\ak.e, 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 Iftw takes no more cog
nizance of the case than it does of the conduct of a refractory horse.
rants to bo deUvered up like criminals.' " Mr. Sherman objected to delivering up
cither 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 Hnally adopted shows that they at last agreed lo deliver up " ser -
cants," but not " slaves " — for as the word " servant" dpes not mean •' slave," thf
word " servioe" does not mean slavery.
These remarks in the convention are quoted, not because tne intentions of the
convention are of the least legal consequence whatever ; but to rebut the silly ar
guments of those who pretend that the convention, and not the people, adopted tht
constitution — and that the convention did not understand the legal difference be
tween the word " servant " and " slave," and therefore used the word " service •'
in this clause, as meaning slavery.

70 THE UNCONSTITUTIONALITY OF SLAVERY.
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 iLie
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 recog
nized, 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 v/ords 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, how
ever they may attemjrt 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 m.aterial 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
an act 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 anything 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

THE CONSTITUTION OF THE UNITED STATES. 71
slavery, to show that an act of a Slate legislature, declaring one
man to be tiie property of anoiher, is a " law,'' wilhin 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 tliat 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 lo 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 die act constitu
tional. If it could, any act, purporting to hold " persons to service
or labor,'' would necessarily be constitutional, wilhout-any regard
to the " persons" so held, or the conditions on which diey 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 tlie 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 die arguments in favor of slavery, that have heretofore been
drawn from this clause of die 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 con
ditions, or for what cause — that fact alone was sufficienl lo make
the act constitutional. The entire sum of the argument, in favor
of slavery, is but this, viz., the constitution recognizes die con
stitutionality of " laws" dial " hold persons to service or labor," —
slave acts '• hold persons to service or labor," — therefore slave acts
must be constitutional. This profound syllogism is die great pillar
of slavery in this country. It has, (if we are to judge by results,)
withstood the scrutiny of all tbe legal acumen of diis 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 pro-
pouiid the following, to wit : The State consdtuUons recognize the

72 THE UNCONSTITUTIONALITY OF SLAVEEY.
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 constitu
tional " laws," under which persons may be " held to service or
labor." But it does not follow, therefore, that every act, that pur
ports to hold " persons to serrice oi labor," is constitutional.
We are obliged, then, to determine whether a statute be consti
tutional, 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 lawfuUy
required. Neither, of course, is the requirement of serrice or
labor, on any conditions, that are inconsistent with any rights that
are secured to the people by the constitution, sanctioned by the con
stitution as lawful. Slave laws, then, can obriously 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, incon
sistent with their being made slaves ; and, 2d, that it sanctions the
general principle of holding " persons to service or labor '' arbitra
rily, without contract, without compensation, and withoui 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 aU — 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 " a
that time, they have not been made so since.
6. The constitution itself, (Art. 1, Sec. 2,) in fixing the basis oJ
representation, has plainly denied that those described m Art 4

THE CONSTITUTION OF THE UNITED STATES. 73
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 oi 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 saves the necessity of going out of the constitution
to find the persons intended, and it is also more consistent with the
prevalent municipal, and vrith natural law.
And it makes no difference to this result, whether the word
" free," in the first article, be used in the poUtical 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 :)
" Eepresentatives and direct taxes shall be apportioned among
the several Stales,, which may be included within this Union,
according lo 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 " aU 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 " al.
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 sanc
tion or recognize slavery. Now it is very clear that no such

74 THE UNCONSTITUTIONALITY OF SLAVERY.
meaning can be given to the word, for suck 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 pur
pose oi avoiding any such sanction; but it is entirely inadmissible
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 tiiis
use of the word " free," as has already been shown, (Ch. 6,) 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 con
stitution, of any of which the word is susceptible. In fact, it is
the only one that is either appropriate to, or consistent \rith, the
other parts of the instrument. Why, then, is it not the legal
meaning ? Manifestly it is the legal meaning. No reason what
ever can be given against it, except that, if such be its meaning,
the constitution will not sanction slavery ! A very good reason —
a perfecdy unanswerable reason, in fact — in favor of this mean
ing ; 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 legaUy exist. If it were used as the cor
relative of something that did not legally exist, the words " all
other persons " would have no legal application. Until, then, it

THE CONSTITUTION OF THE UNITED STAIES. 75
be shown that slavery had a legal existence, authorized either by
the United States constitution, of by the then existing Slate con
stitutions — a thing that cannot be shown — the word " firee "
certainly cannot be claimed to have been used as its correlative.
But even if slavery had been authorized by the State constitu
tions, the word " free," in the United States constitution, could not
have been claimed to have ^een used as its correlative, unless it
had appeared that the United States constitution had itself pro
vided or suggested no correlative of the word " free ;" for it would
obriously be absurd and inadmissible to go out of an instrument
to find the intended correlative of one of its owm words, when it
had itself suggested one. This the constitution of the United
States has done, in the persons of aliens. The power of naturali
zation is, by the constitution, taken from the Slates, 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 " aU 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 Stales, and go out of the constitution of the United
States to find the persons whom it describes as the " free," and
" all other persons.'' And what makes the argument die 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 " aU other persons," — than the very classes suggested by the
United States constitution itself, to wit, citizens and aliens ; (for
it has preriously been shown that die then existing State constitu
tions 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 olher persons" than " the free,'' we shall, for
aught I see, be equaUy obliged to go out of it to find those whom
it describes as the " free" — for "the free," and " aU olher per
sons " 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 " aU other persons," we are obliged to go out of h
to ascertain who are the persons on whom il declares that the

76 THE UNCONSTITUTIONALITY OF SLAVERY.
representation of the government shaU 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 govem
ment, 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 con
stitution, 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
sonie 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 law.s 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 con
stitution 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 " aU
other persons," on whom it requires its own representation to be
based. We have, therefore, no more authority from the consti
tution 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 fhe description can
possibly be found there.
Again. If we were permitted to go to the State constitutions,
or to the Slate statute books, to find who were the persons intend
ed by the constitution of the United States ; and if, as the slave
argument assumes, it was left to the States respectively to pre
scribe who should, and who should not, be " free " within the mean
ing 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 die Union. Not only so, but die

THE CONSTITUTION OF THE UNITED STATES. , 77
application might also be varied at pleasure in the same State.
One inevitable consequence of this stale of things would be, that
there could be neither a permanent, nor a uniform basis of repre
sentation 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 constructiort 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 tvvo different classes, on which its repre
sentation must be based ; foir 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 uncer
tain 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 th^se 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," &q., 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 indispen
sable. Yet under the slave construction this legal knowledge be
comes impossible, Under the other construction it is as perfectly
7*

yS THE UNCONSTITUTIONALITY OF SLAVERY.
and entirely within the power of Congress, as, in the nature of
things, such a subject can be — for naturalization is a legal pro
cess ; 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 consist
ent 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, aU 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 aUens,
" Indians not taxed," and possibly some others. The represen-
sentation is then placed upon the best, most just, and most rational
basis that the words used can be made to describe. The repre-
tation 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 grow
ing 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 accordint;: to
certain principles, becomes invested — as it evidendy 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 per
sons composing the different bases on which its apportionment is
to be made ; instead of being, as they otherwise would be, oblio-ed
to seek for these persons through aU 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 Uni led States
government becomes, so far at least as its popular representation
— which is its most important feature — is concemed, an independ
ent government, subsisting by its own vigor, and pervaded through
out by one uniform principle. Reject this definition, and the

THE CONSTITUTION OF THE UNITED STATES. 79
popular national representation loses at once its nationality, and
becomes a mere dependency on the will of local corporations — a
mere shuttiecock 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 repre
sentation 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 com
pact 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 univer
sally given to it by our political papers of a similar character up
to the time the constitution was adopted, we give to the govern
ment 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 mEiking 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 distinclion there
recognized between citizens and aliens. If we look into the con
temporary 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

80 THE UNCONSTITUTIONALITY OF .SLAVERY
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 shaU 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 constraing a political paper, which
purports to establish men's relations to the State, and especially
in construing the clause in which it fixes the basis of representation
and taxation, to give to the words, which de.scribe the persons to
be represented and taxed; and which appropriately indicate those re
lations of men to the State which make them proper subjects of tax
ation 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 ad
mitted to exist, would absolve the persons described from all aUe-
giance to the Slate, would deny them all right to be represented, .
and discharge them from all liability to be taxed.*

* It is a well settled rule of interpretation, that each single word of an instrument
must be liken to have some appropriate reference or relation to the matters treated
qfin the rest of the instrument, where it is capable of such a meaning. By this
rule the words " free " and " freeman," when used in charters of incorporation, uni
versally apply to persons who are members of the corporation — or are (as it is
termed) " free ofthe company" or corporation, created by the charter — that is, free
to enjoy, as a matter of right, the privileges of the corporation. It is not probable
that, at the adoption ofthe constitution, any other use of these words, " free " and
" freeman," could have been found in a single charter of incorporation in the Eng
lish language, whether the charter were one of a trading corporation, of a city, a
colony, or a State. Now, the constitution of the United States is but the charter
of a corporation. Its object is to form " the people of the United States" into a
corporation, or body politic, for the purpose of maintaining government, and for
dispensing the benefits of government to the members of the corporation. If the
word " free," in such a charter, is lo be construed to have any reference lo the
general subject matter of the charter, it of course refers to those who are members
of the corporation ; to the citizens ; those who are " free of the corporation," as
dislinguishod from aliens, or persons not members ofthe corporation.
But the advocates of slavery are compelled to adopt the absurdity of denying that
tbe meaning of the word " free " has any relation lo the rest of the instrument j or

THE CONSTITUTION OF THE UNISED STATES. 81
But it is unnecessary to follow out thia slave argument into aU
Its ramifications. It sets out wilh nothing but assumptions, that
are gratuitous, absurd, improbable, irrelevant, contrary to aU pre
vious usage, contrary to natural right, and therefore inadmissible.
It conducts to nothing but contradictions, absurdities, impossibili
ties, 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 pro
hibited 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 im
plies, in this clause, that the persons to be imported are neces
sarily to be imported as property — that is, as slaves.
But the idea that the word " importation " applies only to pro
perty, is erroneous. It appUes 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 coun
try;" 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
any reference to the persons who are really " free of the corporaiion," wliich the
instrument creates. They are obliged to maintain that it is used only to describe
those who are free from some individual tyranny, which the instrument nowhere
else recognizes as existing, and which really had no legal existence to be recog
nized. All this is a palpable violation of a perfectly well settled rule of interpretation —
of a rule, which is obviously indispensable for maintaining any kind of coherence
belween the different parts of an instrument.

82 THE UNCONSTITUTIONALITY OF SLAVERY
" 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 wiU bear one. Such is the legal rale.
Even the popular understanding of the word " import," when
appUed 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 MarshaU said, that in construing the constitution, " the
intention of the instrument must prevail ; that this intention must
be coUected 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 toivards the wrong, that is appUed, 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 constraction
should be placed upon the word " importation," is, that the clause
contains no other word that describes die immigration of foreign
ers. Yel that the clause related to the immigration of foreigners
generally, and that it restrained Congress, (up to the year 1808,)
from prohibiting die immigration of foreigners generally, there
can be no doubt.
The object, and the only legal object, of the clause was to re
strain Congress from so exercising their " power of regulating com
merce with foreign nations, and among the several States, and
with the Indian tribes "— (which power has been decided by die
Supreme Court of the United States, to include a power over navi-
gation and the transportation of passengers in boats and vessels*)
* Gibbons vs. Ogden. — (9 Wheaton, 1.)

THE CONSTITUTION OF THE UNITED STATES 83
— 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 popula
tion. The word " importation," (I repeat,) is the only word in the
clause, that applies to persons that were lo 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 corning 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 per
sons going out from one State into another, the word " importa
tion" is the only one in the clause that is appUcable 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 immigra
tion, 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 aU 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 thiis imported.
Again. The argumenl, that the allowance of the " importa
tion " of " persons," implies the aUowance 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 valid
ity of foreign slave laws — the importer certainly could not claim
to import his slaves as property ; but he would appear at the

84 THE UNCONSTITUTIONALITY OP SLAVERY.
custom-house as a mere pirate, claiming to have his captures
legaUzed. 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 vaUdity of the slave laws of other countries.
But further. The allowance of the " importation" of slaves, as
such, under this clause of the constitution, would imply that Con
gress 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 calUng himself the owner, nor
anything 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 govemment — at the hazard of making it a party to
die illegal enslavement of human beings — the responsibiUty 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 anything of this kind) that the fact of "importation"'
under the commercial regulations of Congress, should be there
after 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 caUed his slaves,
should be permitted to bring them in on his own responsibiUty,
and seU 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. Sup
pose such were the intention of the constitution — what foUows ?
Why, that the national government, the only government that vras
'0 be known to foreign nations, the only govemment that was

THE CONSTITUTION OF THE UNITED STATES. 85
to be permitted to regulate our commerce or make treaties with
foreign nations, the government on whom alorie was to rest
the responsibility of war wilh 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 out
lawed as a people, and bring certain and swift destruction upon the
whole nation ; and yet this government, that had the sole responsi
bility of all our foreign relations^ was (jonstitutionally prohibited
from interfering in the matter, or from doing anything 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
cause of the danger, save ourselves,) from ihe 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 coun
tries, or capture on the high seas ? and that we had even prohibited
our only govemment 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 Uability 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 >vord. 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 estabUshed a piratical
government — how could we have rebutted the charge otherwise

86 THE UNC0NST1TUTI0NALIT\ OF SLAVEEY.
than by denying that the words " importation of persons " legaUy
implied dial the persons imported were slaves? Suppose that
European ambassadors had represented to President Washington
that their governments considered our constitution as Ucensing our
people to kidnap the people of olher nations, widiout discrimina
tion, and bring them to the United States as slaves. Would he
not have denied that the legal meaning of the clause did anything
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 constitu
tion did guaranty 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 brijag 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 under
standing !) 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 constraed to the letter,) would
not, of itself, give any authority for the continuance of slavery
after " importation." If a man bring either property or persons
into this country, he brings diem in to abide the constitutional
laws of the country ; and not to be held according to die 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
tiiat should prevail amongst us. To aUow this kind of " importa
tion,'' would be to allow not merely the importation of foreign
" persons," but also 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 imponcuion — is the more inoviiable

THE CONSTITUTION OF THE UNITED STATES. 87
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 shaU naturalize every foreigner without distinction,
the moment he sets foot on our soil. And they had this power as
perfectly prior to ISOS, as since. And it is a power entirely incon
sistent widi the idea that they were bound to admit, and forever
after to acknowledge as slaves, aU 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 lo 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 wiU have
been secured against " domestic violence," and the " repubUcan
form of governmeni" will be completely successful.
This version of this provision of the constitution presents a fair
iUustration of those new ideas of law and language, that have been
invented for the special purpose of bringing slavery wilhin the
pale of the constitution.
If il have been sho'wn that none of the other clauses of the con
stitution refer to slavery, this one, of course, cannot be said to
* Since the publication of the first edition, it has been asked whether the " tax
or duty " authorized by the clause, does not imply that the persons imported are
property? The answer is this. " A tax or duly " on persons is a poll lax ; and a
poll t^x is a tax or duty on persons — nothing more — nothing less. A poll tax
conveys no implication that the persons, on whom the tax is levied, are property —
otherwise all of us, on whom a poll tax has ever been levied, were deemed by the
law lo be property — and if pi-operty, slaves. -\ poll tax on immigrants no more
implies that ihcy are slaves, than a poll tax on natives implies that the latter are
slaves.

88 THE UNCONSTITUTIONALITY OF SLAVERY.
refer to slave insurrections ; because if the constitution presumes
everybody to be free, it of course does not suppose that there can
be such a thing as an insurrection of slaves.
But further. The legal meaning, and the only legal meaning
of the word "violence," in this clause, is unlawful force. The
guaranty, therefore, is one of protection only against unlawful
force. Let us apply this doctrine to the case of the slaves and
their masters, and see which party is entitled to be protected
against the other. Slaveholding is not an act of law ; it is an act
of pure "violence," or unlawful force. It is a mere trespass, or
assault, committed by one person upon another. For example
¦ — ¦ one person beats another, until the latter will obey him, work
for him without wages, or, in case of a woman, submit to be vio
lated. Such was the character (as has been already shown) of all
the slaveholding practised in this country at the adoption of the
constitution. Resistance to such slaveholding isnot "violence,"
nor resistance to law ; it is nothing more nor less than self-defence
against a trespass. It is a perfectly lawful resistance to an assault
and battery. It can no more be caUed "violence," (unlawful
force,) than resistance lo a burglar, an assassin, a highwayman,
or a ravisher, can be called "violence." All the "violence"
(unlawful force) there is in the case, consists in the aggression, not
in the resistance. This clause, then, so far as it relates to slavery,
is a guaranty against the "violence" of slaveholding, not against
any necessary act of self-defence on the part of the slave.
We have thus examined aU those clauses of the constitution,
that have been relied on to prove that the instrament recognizes
and sanctions slavery. No one would have ever dreamed diat
cither of these clauses alone, or that aU of them together, con
tained 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 neariy all the other crimes, which it is the principals
object of all our governments to punish and suppress ; a crime
which we have therefore no more right to presume that the con
stitution 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 die constimtion intended to
sanction aU diese separate crimes, as they are comprehended in

THE CONSTITUTION OF THE UNITED STATES. Otf
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 cipher,
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 aU that is legal, who of us are safe, if our govern-
menis, instead of searching our constitutions to find authorities for
maintaining justice, are to continue to busy themselves in such
prying and microscopic investigations, afler 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 swom to carry into execution ?
The clauses mentioned, taken either separately or coUectively,
neither assert, imply, sanction, recognize nor acknowledge any
such thing as slavery. They do not even speak of it. They
make no aUusion to it whatever. They do not suggest, and, of
themselves, never would have suggested the idea of slavery.
Tbere is, in the whole instrument, no such word as slave or
slavery ; nor any language that can legaUy 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 Uability can be
predicated of any person whatever. The clauses, that have been
claimed for slavery, are all, in themselves, honest in their lan
guage, 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
appUed to other clauses, would utterly deslroy every principle of
Uberty and justice, and aUow the whole instrument to be perverted
to every conceivable purpose of tyranny and crime.
Yet these perversions of the constitution are made by the advo
cates of slavery, not merely in defiance of those legal rules of
interpretation, which apply to all instruments of the kind, but also
in defiance of the express language of the preamble, which
declares that the object of the instrument is to "establish justice"
and " secure Uberty " — which declaration alone would furnish an
imperative rale of interpretation, independently of all other rules.
8*

90 THE UNCONSTITUTIONALITY OF SLAVERY.
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
aU 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
Uberty and protection, which the constitution professes to secure to
" the people " generaUy.
Who, then, estabUshed 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 con
stitution 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 wJiole peo
ple — of the United States, " do ordain and establish this constitu
tion." If the whole people of the United States were not recognized as
citizens by the constitution, then the constitution gives no infor
mation as to what portion of the people were to be citizens under
it. And the consequence would then foUow 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 lo 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

THE CONSTITUTION OF THE UNITED STATES. 91
are entitled as citizens to its protection ; and the State govern
ments 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, proba
bly under all, the State constitutions, there are persons who are
denied the right of suffrage — but they are not therefore Uable to
be enslaved.
Those whp did take part in the actual ratification of the consti
tution, 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
tlie people of the United States do ordain and establish this con
stitution,'' 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 tbat such portion only were inlended 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 of that day could claim citizenship under the consti
tution, 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" were 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, disfran
chised, oudawed, 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 ofthe United States are citizens, and entitied to
liberty, protection, and the dispensation of justice under the con
stitution.

92 THE UNCONSTITUTIOi>.nI.:Ty OF SLAVERY.
If it be admitted that the constitution designated its own citizens,
then there is no escape from the conclusit n that it designated die
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 ihe 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 folr
lows that there is reaUy no United States governrpent, 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 goyemment, then it follows that the state gov
ernments 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 caUed. 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 peo
ple, as individuals. This "state-rights" doctrine has been declared
unconstitutional by reiterated opinions of the Supreme Court of the
United States;* 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 government (of the U. S.) proceeds directly from the people ; is 'or
dained and established' in the name of the people." — ATCulloch vs. Maryland, 4
Wlleaton, 403.
" The government of the Union is emphatically and truly, a governmeni 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 Sta,tes.'" ~ Murtinvs.
Hunter's lessee, 1 Wheaton, 324.

THE CONSTITUTION OF THE UNITED STATES. 93
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 die 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 govern
ment 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 Slates. They
probably saw that if it were admitted that the constitution of the
United Slates 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
Pnited States,) it would follow that there could be no constitu
tional slavery in the United States.
Again. If the constitution was established by authority of all
" the people of the United Slates," they were aU legally parries to
it, and citizens under it. And if they were parties to it, and
citizens under it, it follows that neither they, nor their pos
terity, nor any nor either of tbem, 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 bless
ings of liberty to ourselves, and our posterity.'' This purpose of
the national constitution is a law paramount to all State constitu
tions ; 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 Slates, shall be the supreme law of the land ; and the
judges in every State shall be bound thereby, anything in the con
stitution 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 legisla
tion, 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 im
posed by the State governments, upon native inhabitants of the
country, were, of themselves, sufficient to deprive such inhabitants
of the citizenship, which would otherwise have been conferred

94 THE UNCONSTITUTIONALITY OF SLAVEKY.
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 ot
the country, any of the benefits or rights which the national con
stitution 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 citi
zenship lo 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 naturaUzation and citizenship to
every person in the country, whether foreigner or naiive, who is
not already a citizen. To suppose that we have in the country
three miUions 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 con
tradiction. 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 die 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
leried ? and who must be held r. sponsible for its payment ? Sup-

THE CONSTITUTION OF THE UNITED STATES. 95
pose a poll tax were laid upon a man, whom the State lavvs should
pretend lo call a slave. Are the United States under the neces
sity 01 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
hiinself, 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 lia
bility 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 recog
nize him as not having the ownership of his own person. •
Second. " The Congress shall have power to regulate com
merce 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 obvi
ously 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 anybody) 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 individ
ual — 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 — " anything in the constitution or laws of any
State to the contrary notwithstanding." Yet this right of carry
ing on commerce is a right- entirely inconsistent with the idea ol
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)

96 THE UNCONSTITUTIONALITY OF SLAVERY.
is therefore lawful, except what is prohibited by positive legisla
tion. Traffic with the slaves, either by people of foreign nations
or by people belonging to other States than the slaves, hs s never
(so far as 1 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 consti
tution 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 — " anything in the constitutions or
laws of the States to the contrary notvrithstanding." 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 shaU 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 un
doubted 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 diat individual himself,
and all he may possess, are the property of another.
Fifth. " The Congress shaU have power to declare war, grant
letters of marque and reprisal, and make rules concerning cap
tures on land and water;" also "tojraise 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

THE CONSTITUTION OF THE UNITED STATES. 97
4icir 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 indiriduals whom the State
governments may see fit to recognize as the owners of such sol
diers and sailors ? Certainly they have, in defiance of all State
laws and constitutions whatsoever ; and they have already as
serted 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 inhab
itants 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 sanc
tions the legality of slavery.
Sixtk. " The Congress shall have power to provide for the
organizing, arming and disciplining the militia, and for govern
ing such part of them as may be employed in the service of the
United States, reserving to the States respectively the appoint
ment 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 ha ve thus to enroll
and arm those whom the States call free ? Can the State govern
ments determine who may, and who may not, compose the militia
of the "United States?"
Look, too, at this power, in connection with the second amend
raent to the constitution ; which is in these words :
9

98 THE UNCONSTITUTIONALITY Of SLAVERY.
" A well regulated raUitia being necessary to the security of 8
free State, the right of the people to keep and bear arms shaU 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 wh.om 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 conde
scend 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 govern
ments, 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 liber
ties ; for this constitutional right to keep arms implies the con
stitutional 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 obUgation 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 shaU impair the
natural obligation of men's contracts. Yet, if slave laws were
constitutional, they would eflfectually impair the obligation of aU
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 obUgation of men's contracts, implies that aU men have a
constitutional right to enter into all contracts that have a natural
obligation. It therefore secures the constitutional right of aU men
to enter into such contracts, and to have them respected by the
State governments. Yet this constitutional right of all men to

THE CONSTITUTION OF THE UNITED STATES. 99
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, absoj^iiely prohibits the passag-s of
slave laws, because laws that make men slaves must necessarily
impair the obUgation of all their contracts.
Eighth. Persons, whom some of the State governments recog
nize as slaves, are made eligible, by the constitution of the United
States, to the office of President of the United States. The con
stitutional 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
eUgible to that office, who shaU not have attained the age of
thirty-five years, and been fourteen years a resident of the United
States." According to this prorision, all " persons," * who have resided
* 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. Perhaps this inference might not be allowable, if either the office, or eligibility
to the office, were anything that any one could naturally claim as a right. But
neither can be claimed as a right. The office is not given to any one because he
has a right to it, nor because it may be even a benefit to him. It is conferred upon
him, or rather confided to him, as a trust, and solely as a trust, for the sole benefit
of the people of the United States. The President, as President, is not supposed
to have any rights in the office on his own account ; or any rights except what the
people, for their own benefit, and not for his, have voluntarily chosen to grant to
him. And the people have a right lo confide this trust to whomsoever they please,
or to whomsoever they think it will be most for their interest to confide it. And
no one can say that his rights are either violated or withheld, merely because he is
not selected for the trust, even though his real fitness for the trust should be alto
gether superior to that of the one selected. He can only say that his merits or
qualifications are not properly appreciated. The people have naturally tlie same
free, unqualified, irresponsible right to select their agents or servants, according to
their pleasure or discretion, that a private individual has to select his, without
giving any one, who is not selected, any reason to say that his rights are "Violated.
The most fit person has no more claim, in the nature of a right, to the ottce, than
a person the least fit ; he has only qualifications ; no one has rights.
The people, then, who establish this office, and for whose benefit alone il is to
be filled, and whose servant he President is, have naturally an unqualified right to
exercise their free pleasure or discretion in the selection of the person to fill it,
wiihout giving any one, who is not selected, any ground for saying that his rights
are withheld, or for saying anything other than that his merits or abilities are laX

J 00 THE UNCONSTITUTIONALITY OF SLAVERY.
within the United States fourteen years, have attained the age OJ
thirty-five years, and are either natural born citizens, or were
citizens ofthe United States at the time ofthe adoption ofthe con
stitution, are eligible to the office of President. No other qualifi-
cations dian 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." AYho 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 whc
were " citizens of the United States at the time of *he adoption of
the constitution.^' In regard to this latter class, it has before been
shown, from the preamble to the constitution, that aU who were
" people of the United States " (that is, permanent inhabitants) at
the time the constitution was adopted, were made citizens by it.
4nd this clause, describing those eligible to the office of President,
implies the same thing. This is evident ; for it speaks of those
whp were " citizens of the United States at the time of the adop
tion of the constitution." Now there clearly could have been na
" 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 adop
tion of the constitution. The confederation had no citizens. It

properly estimated. The people, for example, have a right to say, as in their con
stitution they have said, that they will confide this trust to no one who is not
thirty-five years old ; and they do uot thereby infringe or withhold any of the rights
of those who are under thirty-five years old ; although it is possible that they do
not properly estimate their fitness for the office. So they have a perfect right to
say that they will not confide this trust to women ; and women cannot say that
their rights are thereby withheld ; although they are at liberty to think and say
that their qualifications for the office arc not appreciated.
Inasmuch, then, as no riglits are withheld or violated by making male persons
only eligible lo the office, we are at perfect liberty to construe the language of the
constitution according to its grammatical meafiing, without seeking to go beyond
it. According to this meaning, male persons only are eligible — for the constitu
tion speaks of " the President " as a single individ'ual; and very properly too —
for although different individuals may fill the office, yet only one can fill il at a
lime, and the office is presumed never to be vacant. It is therefore of the officer,
as a single and peipetual one, and not ofthe difierent individuals, (as individuals,)
who maj^Bt difierent limes fill the office, that the constimtion speaks, when it
speaks of " the President." And in speaking of this perpetual officer as a single
individual, it uniformly uses the masculine pronoun. Inasmuch as it would be a
plain violation of grammatical rules to speak of a single and particular individual
as a male person, if the individual were a female, it may (and probably musl) be
inferred that the constitution did not intend that the office should ever be filled by
any other than a male person.

THE CoWsTITUTION OF THE UNITED STATES. 101
"Vas a mere league Oot-.veen the State governments. The separata
States belonging to tlie coiifederacy had each their own citizens
respectively. But the confederation itself, as such, had no citizens.
There were, therefore, ng " 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 cf the United States." Those, then, who
were " citizens ofthe Unitei' States at the time of the adoption of
the constitution," were nece; sarily those, and only those, who had
been made so by the adopt' nn of the constitution ; because they
could have become citizens ai that precise " time'' in no other way.
If, then, any persons were iiiade 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 discrimina
tion 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 bom 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 bom
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 Presi-
9*

102 THE UNCONSTITUTIONALITY OF SL^'^EKY.
dent. And if eUgible to that office, the con.«tinitiou 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 die offices of repre
sentative and senator of the United States ; and therefore canno',
be slaves.
Ninth. The constitution declares that " the trial of all crimes,
except in cases of impeachment, shall bp by jury." Also that
" Treason against the United States shaU consist only m levying
war against them, or in adhering to their enemies, giving them
aid and comfort."
It is obvious that slaves, if we have any, might " levy war
against the United States," and might also " adhere to dieir
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 aUegiance, 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 govem
ment 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. StiU, the govem
ment 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 foUow 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 recog
nized the legality of slavery ?
Tenth. The constitution declares that "The privilege of the

THE CONSTITUTION OF THE UNITED STATES. 103
writ of habeas corpus shaU 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 aUowed, 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 Uberty, against all restraint except from the gov
ernment; 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 indiriduals or the g jvemment,) unless they are
held on some formal writ or process, authorized iy law., issued by
the government, according to established principles, and charging
tke person held by it with some legal offence or liabiliiy. 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, previouslj| to issuing pro
cess for ¦ restraining any particular individual, shall itself, by its
proper authorities, take express cognizance of, and inquire cau
tiously into ths facts of each case, and ascertain, by reasonable
evidence, that the individual has" brought himself wilhin the
" liabilities of the general law. All these things the writ of habeas
corpus secures to be done, before it will sufier 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 pris
oner before the court, and show the authoritj'' by which he holds
him. Unless he then exhibit a legal precept, warrant or writ,
issued by, and bearing the seal of the government, specifying a
Jegai ground for restraining the prisoner, and authorizing or requir
ing him to hold him in custody, he will be ordered to let him go
iree. Hence all 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 ;n custody by virtue of
any formal or legal writ or process, either authorized by law, oi

104 THE UNCONSTITUTIONALITY OF SLAVERY.
issued by the govemment, or that charges the slave with any
legal offence or liabUity. A slave is incapable of incurring any
legal liabUity, 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
foree, if he can, as he holds his ox, or his horse — and not other
wise. If the slave escape, or refuse to labor, the slave code no
more authorizes the government to issue legal process Eigainst 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 corpfus 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 prin
ciple of law, in regard to property, that simple possession is prima
facie evidence of ownership ; and therefore any inan, who was
holding another jn custody, could defeat the writ by pleading that
he owned his prisoner, and by giving, as proof of ovniership, the
simple fact that he was in possession of him. If, therefore, the
writ of habeas corpus did not, of itself, involve a deoikl of the
right of property in man, the fact stated in it, that one man was
holding another in custody, would be prinm facie evidence that
he owned him, and had a right to hold him ; and the writ would
therefore carry an absurdity on its face.
The writ of habeas corpus, then, necessarUy 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," — diat is, shaU not be denied to any human being
— has declared that, under the constitution, there can be no right
of property in man.
This ivrit was unquestionably intended as a great constitutional
guaranty of personal liberty. But unless it denies the right (rf
property in man, it in reaUty aflbrds no proteetion 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

THE CONSTTTUTION OF THE UNITED STATES. 105
great constitutional principle, the natural right of personal Uberty.
And the privilege of the writ is not confined to citizens, but extends
to aU human beings.* And it is probably the only absolute guar
anty, 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
bom under the constitution? EspeciaUy when the constitution
makes no discrimination of persons ?
Eleventh. " The United States shaU guaranty to every State
in this Union a repubUcan form of government, and shall protect
each of them against invasion ; and, on application of the legis
lature, or of the executive, (when the legislature cannot be con
vened,) against domestic riolence."
Mark the strength and explicitness of the first clause of this
section, to wit, "The United States shall guaranty 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 aU of us heretofore been compelled to hear, from indi
viduals 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 consti
tutional law from other men's mouths, instead of looking at the
constitution for themselves, have probably been led to imagine that
the constitution had reaUy given such guaranties in some expUcit
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 legaUy means nothing of the
kind. Bui, in the clause now cited, we do have an explicit and
peremptory "guaranty," depending upon no implications, infer
ences 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 flady incompatible with

* Somerset was not a citizen of England, or entitled, as such, to the protection of
the English lam The privilege of the writ of luibeas corpus was granted to him
OD the ground simply of his being a man.

106 THE UNCONSTITUTIONALITY OF SLAVERY.
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 pubUc,
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 mass of the people — and where, of
-natural consequence, it wUl have, for its object, the protection of
the rights of all. It is indispensable to a republican form of gov
emment, that the pubUc, the mass of the people, if not the entire
people, participate in the grant of powers to the govemment, and
in the protection aflTorded by the government. It is impossible
therefore, that a government, under which any considerable num
ber of the people (if indeed any number of the people, are disfran
chised 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, equaUty and right.
Even if there had really been, in the constitution, two such con
tradictory guaranties, as one of liberty or repubUcanism 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.
iut it is constantly asserted, in substance, that there is " ?w
propriety" in the general government's interfering in the local
governments of the States. Those who make this assertion ap
pear to regard a State as a single individual, capable of managing
his own afiairs, and of course unwiUing to tolerate the intermed
dling 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,

THE CONSTITUTION OF THE UNITED STATES. 107
some extemal protection against such emergencies, hy making
reciprocal contracts with other people similarly exposed in the
neighboring States. Such contracts for mumal succor and pro
tection, 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 poUtical contracts whatever ;
and are founded on precisely the same principle of combination
for mutual defence — for what are any of our poUtical contracts
and forms of govemment, 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 govern
ment. Such a mutual contract, between the people of all the
States, is contained in this clause of the constitution. And it
gives to them aU an additional guaranty for their liberties.
Those who object to this guaranty, however, choose to over
look aU 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 sucb superlative fastidiousness ; for even if
there were "no propriety" in the interference of the general
government to maintain a republican form of govemment in the
States, StiU, 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 oppo
site, 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 guar
anties of slavery.*
* From whom come these objections to the " propriety " of the general govern
ment's interfering to maintain republicanism in the stales ? Do they not come from
those who have ever hitherto claimed that the general govemment was bound to
interfere to pul 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 1 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 ii:to
the earth, corresponds precisely with their chivalrous notions of " propriety ;" but
it is insufferable officiousness for them to form any political compacts that will re
quire them to interfere to protect the weak against the tyranny of the strong, or to
maintain justice, liberty, peace and freedom.

108 THE UNCONSTITUTIONALITY OF SLAVERY.
But the " propriety," and not only the propriety, but the neces-
ity of this guaranty, may be maintained on still other grounds.
One of these grounds is, that it would be impossible, consist
ently with the other provisions of the constitution, that the general
ifovernment itself could be republican, unless the State govern
ments were repubUcan also. For example. The constitution
/rovides, in regard to the choice of congressional representatives.
that " the electors in each State shaU have the quahfications requi
site for electors of the most numerous branch of the State legis
lature." It was indispensable to the internal quiet of each State,
that the same body of electors, who should participate in the suf
frage 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 obri
ously give rise at once to implacable and irreconcilable feuds, that
would result in the overthrow of one or the other of the govern
ments wilhin the State. Harmony or inveterate conflict was the
only alternative. As conflict would necessarily result in the de
struction 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 repre
sented 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 repub
lican also. Hence the interest which the nation at large have in
the republicfinism of each of the State g«vemments.
It being necessary that the suffrage under the national govern
ment, witliin each State, should be the same as for the State
government, it is apparent that unless the several State govern
ments were aU formed on one general plan, or unless the electors
of aU the States were united in the acknowledgment of some
general controlling principle, appUcable 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 sup^

THE CONSTITUTION OF THE UNITED STATES. 109
port a despotic govemment in the State, could not consistently or
cordially unite, or even unite at all, in the support of a republican
govemment for the nation. If one portion of the State govem-
ments 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 Eome, or that of the ancient Jews — and
another portion absolute despotisms, like that of Nicholas, in Rus
sia, or that of Francia, in Paraguay, — and the same body, anc
only the same body, of electors, that sustained each of these
governments at home, should be represented in the national govern
ment, 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 repre
sentatives of any one theory, or principle of government, would be
made up of the representatives of all the various theories of
govemment that prevailed in the different States — from ihe ex
treme 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 accomplish
ment of any agreed or distinct object.
Without some distinct and agreed object as a bond of union, il
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
govemment, 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
10

110 THE UNCONSTITUTIONALITY OF SLAVERY.
reUgion. But they were agreed that all men had certain natural,
inherent, essential and inalienable rights, among which were Ufe,
liberty, and the pursuit of happiness ; and that the preservation of
these rights was the legitimate pui-pose 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 tarn, had fiUed 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 he found
to hold them together. It comported wilh their theory of the true ob
jects of government. This principle, therefore, they adopted as the
corner-stone of their national government; and, as a matter of neces
sity, 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
" guarantying to every State in the Union a repubUcan 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 minori
ties, and defeated their enjoyment of the national constitution, but
also introduced such factions and feuds into the national govern
raent as would have distracted its councils, and prostrated its
power. But there were also motives of a pecuniary and social, as weU
as political nature, that made it proper that the nation should
guaranty to the States a republican form of government.
Commerce was to be estabUshed 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
vasdy more than slaves. They have therefore more to buy and
more to sell. Hence the free States have a direct pecuniary
mterest in the civil freedom of all the other States. Commerce

THE CONSTITUTION OF THE UNITED STATES. Ill
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 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 her
self 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 thai
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 gov
emment — which we have invested with the exclusive control of
all commerce among the several States — should secure to these
three mUlions the right of traffic with their fellow-men, and to
their fellow-men the right of traffic with them, against the imperti
nent 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, con
tribute 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 thb people
of the slave States. Even for such wealth as the culture of their
great staple, cotton, has added to the rlation, the south are indebted
principally, if not entirely, to the inventive genius of a single
northern man.* The agriculture of the slave States is carried on
with rude and clumsy implements ; by lisdess, 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
* Eli Whitney.

112 THE UNCONSTITUTIONALITY OF SLAVERY.
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 popula
tion 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 aU the
States. We have an interest in free personal intercourse with all
the people living under a common government with ourselves.
We wish lo be free to discuss, with any and all of them, all the
principles of liberty and aU the interests of humanity. We wish,
when we meet a feUow-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 a 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 powerof 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 die state
governments are prohibited from maintaining any other than a
republican form of government, which of course impUes die same
freedom. The nation at large have stiU another interest in die republican
ism of each of the States ; an interest, too, that is indicated in the
same section n which this republicanism is guarantied. This
interest results from the fact that the nation are pledged to " pro-

THE CONSTITUTION OF THE UNITED STATES. 113
ect" 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 subject
ing the remainder of the people to the degradation and injustice
of slavery ? Or did the nation undertake only to guaranty the
preservation of " a republican form of govemment " 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 inva
sion. 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 shaU 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 republi
can government should be inserted in the same paragraph with
that for protection against invasion, in order that both the principle
10*

114 THE UNCONSTITUTIONALITY OF SLAVEEY-
and the extent of the liability she incurred, might distincfljr
appear. The nation at large, then, as a poUtical community under the
constitution, have both interests and rights, and both of die most
vital character, in the republicanism of each of the Slate govern
ments. The guaranty given by the national constitution, securing
such a governmeni to each of the States, is therefore neidier
officious nor impertinent. On the contrary, this guaranty was a
sine qua non to any rational contract of union ; and the enforce
ment of it is equaUy indispensable, if not to the continuance of the
union at aU, 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, constructioHSv surmises and implica
tions, by which it is claimed that the national constitution sanc
tions, legalizes, or even tolerates slavery.

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 vaUdity and obligation, as a frame of govemment,
from its adoption by the people at large.* Of course the inten
tions of the people at large are the only ones, that are of any
importance to be regarded in determining the legal meaning of
the ins'.mment. 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 instrament legally express. In adopting the consli-
* 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
iheir act was final." — .WCu/ZocA- vs. Maryland,— i ir/ica(cn 403  4 '

THE INTENTIONS OF THE CONVENTION. 115
tution, 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.* The instrument had

* 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, S32.
"The intention of the legislature is to be searched for in the words which the
legislature has employed to convey it." — Sclir. Paulina's Cargo vs. United States,
— 7 Oranch, 60.
Judge Story, in giving an opinion upon the bankrupt act, replies as follows to ar
argument analogous to that, which is often drawn from the debates of the con
vention, in opposition to the language ofthe constitution itself. He says ;
" At the threshold of the argument, we are met with the suggestion, that when
the (Bankrupt) act was before Congress, the opposite doctrine was then maintaine(!
in the Honse of Representatives, and it was confidently stated, that no such juris
diction was conferred by the act, as is now insisted on. Whal passes in Congress
upon the discussion of a bill can hardly become a matter of strict judicial inquiry ;
and if it were, it could scarcely be affirmed, that the opimons of a few members,
expressed either way, are lo be considered as the judgment of the whole House, or
even of a minority. But, in truth, little reliance can or ought to be placed upon
such sources of interpretation of a statute. The questions can be, and rarely are,
there debated upou strictly legal grounds, with a full mastery ofthe subject and of
the just rules of interpretation. Tbe arguments are generally of a mixed character,
addressed by way of objection or of support, rather with a view to carry or defeat
a bill, than wilh the strictness of a judicial decision. But if the House entertained
one construction of the language of the bill, non constat, that the same opinion was
entertained either by the Senate or by the President ; and their opinions are cer
tainly, in a matter of the sanction of laws, entitled to as great weight as the other
branch. But in truth, courts of justice are not at liberty to look at considerations
of this sort. We are bound to i^rderpret the act as we find it, and to make such an
interpretation as its language and Us apparent objects require. We must take it
to be true, that the legislature' irdend precisely whal they say, and to the extent
which the provisions ofthe act require, for the purpose of securingtheir just opera
tion and efi'ect. Any other course would deliver over the court to interminable
doubts and difficulties ; and we should be compelled to guess what was the law, from
the loose commentaries of diff'erent debates, instead ofthe precise enactments of the
statute. Nor have there been wanting illustrious instances of great minds, which,
afler they had, as legislators, or commentators, reposed upon a short and hasty
opinion, have deliberately withdrawn from their first impressions, when they came
upon the judgment seat to re-examine the statute or law in its full bearings." —
Mitchell vs. Great Works Milling and Manufacturing Company. Story's Circuit
Court Reports, 'Vol. 2, page 663.
If the intentions of legislatures, who are invested with the actual authority of
prescribing laws, are of no consequence otherwise than as they are expressed in the
language of their statutes, of how much less consequence are any unexpressed
intentions of the framers of the constitution, who had no authority to establish a
constitution, but only to draft one to be oflfered to the people for their voluiitar-i
adisptiun or rejection.

116 THE UNCONSTITUTIONALITY OF SLAVEEY.
been reported by their committee, the convention. But the peopj •
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,
diey 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 partisans 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 instru
ment do not sanction it. But can the intentions of that conven
tion, attested only by a mere skeleton of its debates, and not by
any impress upon the instrument itself, add anything 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 con
vention, they were not even parties to the instrument ; and no
evidence of their intentions, at that lime, 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
wilh the rest of the people, must then be presumed to have
adopted its legal meaning, and that alone — notvrithstanding 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 inthe convention
by some of the members, we are bound, as a matter of law, to
presume that the convention ilself, in the aggregate, had no inten
tion 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 aU their delates termi-

THE INTENTIONS OF THE CONVENTION. 117
nated. This instrument is also the only authentic evidence of
their intentions. It is subsequent in its date to all the olher 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 con
stitution itself to be impeached and destroyed, and free govern
ment overturned, on the authority of a few meagre snatches of
argument, intent or opinion, uttered by a few only of the mem
bers ; 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 pub
lication of his papers ? If anything 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 jnere 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 Presideni;
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 aU
the world, as the constitution ofthe United States?*

* " 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 mosl of them
from the newspapers of the day, in which they were reported by nobody now pro
bably 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 contem
porary 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 pres
ent time, that the sentiments they contain may, in some instances, have been in
accurately 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 Ihe 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 sub
stance of the debates, as well as their general course, are accurately preserved."
In his preface to the third volume, embracing the North Carolina and Pennsylva-
Bia conventions, he says :
" The first of the two North Carolina conventions is contained in this volume ;

118 THE UNCONSTITUTIONALITY OF SLAVERY
But even if tie unexpressed intentions, which these ni tes ol
debate ascribed 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 conven
tion sat with closed doors, and it was not untU near fifty years
after the people had adopted the constitution itself, that these pri
vate intentions of the framers authentically transpired. And even
now all the eridence 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 vrith 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 partici
pated in these intentions — what then ? Any forty or fift)' 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 intended to accom
plish by it, if its honest character should enable them to secure for
it the adoption of the people. — But if the people should adc^t
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 govemment
any authority for violating the legal meaning of tbe words of such
constitution, and for so construing them as to subserve the crim
inal and shameless purpose of its originators ?
The members of the convention, as such, were the mere
scriveners of the constitution ; and their individual purposes, opin-

the second convention, it is believed, was neUher systematically reported nor ¦print
ed." 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 ofthe question."
In his preface lo the fourth volume, he says :
" In compiling the opinions, on constitutional questions, delivered in Congress,
by some ofthe most enlightened senators and representatives, the files of the New'
York and Philadelphia newspapers, from 1789 to isoo, had to be relied on • from
the latter period to the present, the National Intelligencer is the authority con
suited for the desired information."
It is from such stuff" as tbis, collected and published thirty-five and forty year*
afler the constituUon was adopted — stuff very suitable for constitutional dreams to
be made of— that our courts and people now make their constitutional law io
nreference to adorting the law of the constitution itself. In this way they manu
"acture law strong enough to bind three millions of men in slaverv.

THE INTENTIONS OF THE CONVENTION. 119
tons 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 express
ions of the scriveners of any other contract can be offered to
prove die intentions of the true parties to such contract. As fram
ers of the constitution, the members of the convention gave to it
no validity, meaning, or legal force. They simply drafted it, and
offered it, sMch as it legally might be, to the people for their adop
tion or rejection. The people, therefore, in adopting it, had no
reference whatever to the opinions of the convention. They had
jio authentic evidence of what those opinions were. They lookei.
simply at the instrument And they adopted even its legal mean-
sng by a bare majority. If the instrument had contained any
tangiMe sanction ©f slavery, the people, in some parts of the country
ceitainiy, would sooner have had it burned by the liands of the
common hangman, than they would have adopted it, and thus sold
themselves as pimps to slavery, -co veered as they vv^ere 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 die people ; and for that reason, if for no other,
they dared insert in lSa.e instrument no legal sanction of slavery.
They chose radier to trust to their craft and influence to corrupt
the govemment, {of which they themselves expected to be impor
tant members,) after the constitution should have be«n adopted,
ratlier than ade the necessary authority directly from the people.
And die success they have had in corrupting the government,
proves that they jud^d rightly in presuming that the government
would be more flexible than the peopJe,
For other reasons, too, die pe«jpie should not be charged with
designing to sanction any of the secret intentions of the conven
tion. 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
jiurpose had been avowed by those who were at the bottom of th&
movement, the convention would doubtless never have been helcL
The avowed objects of the convention were of a totally differem
character. Commercial, industrial and defensive mtirives were iha
prominent oiies avowed. When, then, the constitution came &»m

120 THE UNCONSTITUTIONALITY OF SLAVEKY.
the hands of such a convention, unstained with any legal or tangi
ble sanction of slavery, were die people— who, from the nature of
die case, could not assemble to draft one for themselves— bound
either to discard it, or hold themsatves responsible for aU 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 povrer ; and, as a 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
eould 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, unles's 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 tittle 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 thent
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 mean^
while 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 pubKc bodies, as newspa
pers now do. .. The consequence must have been that the people
at large knew nothing of the intentions of the framers of the con
stitution, but from its words, until after ft was adopted. Never
theless, it is to be constantly bome in mind, that even if the peopte
had been fully cognizant of those mtentions, they would not therefoie
have adopted them, or become at aU responsible for them, so long
as the intentions themselves were not incorporated in the instra
ment. 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
lioliticians, that would natiirall'y swarm around the birth-place

THE INTENTIONS OF THE CONVENTION. 121
and assist at the nativity of a new and splendid govemment.
But the people are not therefore responsible for those purposes ;
nor are those purposes, therefore, a part of the constitution ; nor is
its language lo be consirued with any view to aid their accom
plishment. 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 con
vey 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 ihe constitution they should be
swom to support, and violating all legal rules of construction, and
aU the free principles of the instrument. It is true that the judi
ciary, (whether the people intended it or not,) have proved the'i-
selves to be thus much, at least, more shameless than the pe' pie,
or the convention.' Yet that is not what ought to have been
expected of judicial tribunals. And whether such were .eally the
intention of the convention, or the people, is, at best a matter of
conjecture and history, and not of law, nor of any evidence cogniz
able by any judicial tribunal.
Why should we search at all for the inte'.itions, either of tb«
convention, or of the people, beyond the words which both the con
vention 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 o'f 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 instrament, it
had been merely agreed upon orally by the members of the conven
tion? And by them only orally reported to the people? And

132 THE UNCONSTITUTIONALITY OF SLAVEEY-
only this oral report of it had been adopted by the people ? And
al] our evidence of what it really was, had rested upon reports
of what Mr. A. and 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 fiying 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 con
vention 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 junsequence would have been that we
should really have haa 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 instru
ment, 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
n. de constitutional.
A. d what is the object of resorting to these flying reports for
evidei. e, on which to change the meaning of the constitution ? Is
it to chai re the instrument from a dishonest to an honest one?
from an unj ist to a just one ? No. But directly the reverse —
• and solely that lishonesty and injustice may be carried into effect.
A purpose, for wi.'ch no evidence of any kind whatever could be
admitted in a court of justice.
^ Again. If the priuL^nle be admitted, that the meaning of die
constitution can be change 1, on proof being made that the scrive
ners or framers of it had seciPt and knavish intentions, which do
not appear on the face of the instrument, then perfect license is
given to the scriveners of constiiutions to contrive any secret
scheme of viUany diey 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 td be admitted in a

THE PRACTICE OF THE GOVERNMENT. .23
country where the people claim the prerogative of establishing
their own government, and deny the right of anybody to impose
a government upon them, either by force, or fraud, or against their
wiU? 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. Mani
festly neither this contract, nor the meaning of its words, can be
changed, without the consent of all the parties lo it. Nor can it
be changed on a representation, to be made by any number of
them less than the whole, that they intended anything 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,
wiihout 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 towards him'
lo 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,
jvho adopted the constitution in good faith, and with the intent
that its legal meaning should be carried into effect, ils legal mean
ing would nevertheless remain the same ; for no judicial tribunal
could lawfuUy allow the parlies 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.

CHAPTER X.
THE PRACTICE OF THE GOVERNMENI.
The practice of the govemment, 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 charactei
is before they adopt it ; and another is, that it enables them to see

124 THE UNCONSTITUTIONALITY OF SLAVERY.
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 instru
ment 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 govern
ment 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 mean
ing of the constitution, as a legal instrument, when it was first
draivn 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 stUl. It cannot have been
changed by all the errors and perversions, intentional or uninten-
r onal, 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 peopte
of the country did really understand or believe diat the constitu
tion sanctioned slavery? Those who make the assertion are

THE UNDERSTANDING OF THE PEOPLE. 125
bound to prove it. The presumption is against them. Where is
their contrary history ?
They wiU say that a part of the people were actuaUy slavehold
ers, 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 ihe 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 excep
tion, 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 politic9,l influence was entirely dispropor
tionate 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 tum the scale in elections, and fill most of the offices with
slaveholders. Many of the non-slaveholders doubtless were poor,
dependent and subserrient, (as large portions of the non-slave
holders 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 under
stand, 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 princip.es the country
had been fighting for and proclaiming, they did net wish it to be
named. 11*

126 THE UNCONSTITUTIONALITY OF SLAVERY.
But whatever may have been the cause of the fact, the fact
itself is conspicuous, that from some cause or other, eidier with the
consent of the slaveholders, or in defiance of their power, the con
stitutions of every one of the thirteen Stales were at that time free
ones. Now is it not idle and useless to pretend, when even the strong
est 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 forever the pretence that the major
ity of the people of all the Stales 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
beUeved 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 innu
merable 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 destined to destroy slavery,
whenever its principles shouldbe carried into fuU effect, is obvi
ously to suppose an intellectual impossibility ; for the instrument
was plain, and the people had common sense ; and diose two facts
cannot stand together consistently with the idea that there was
any general, or even any considerable misunderstanding of ils
meaning.

CHAPTER XII.
THE STATE CONSTITUTIONS OF 1846.
Of aU the State constitutions existing at this time, 1845, (ex
cepting that of Florida, which I have not seen,) not one of them
contains provisions that are sufficient, (or that would be sufficient

THE STATE CONSTITUTIONS OF 1845. 127
if not restrained by the constitution of the United States,) to author
ize the slavery that exists in the States. The material defic'ency
in aU of them is, that they neither designate, nor give the legisla
tures 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 Caro
lina, South Carolina and Georgia, have altered their constitutions
so as to make them recognize slavery ; yet not so as to proride
for any legal designation of the persons to be made slaves.
The constitution of South CaroUna 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 pro
rision, therefore, amounts to nothing for the purposes of a consti
tutional 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 an one. But both have specific provisions inconsistent with
slavery. Both purport to be estabUshed by " the people ;" both
have provisiojjs for the writ of habeas corpus. Indeed, the con
stitutions 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 Nordi 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 Ten
nessee. The constitutions of the States of Kentucky, Missouri, Arkan
sas, Mississippi, and Alabama, aU have prorisions 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

128 THE UNCONSTITUTIONALITY OF SLAVERY.
constitutional laws,) of other States. But when we go to those
Other States, we find that their constitutions have made no design
nation 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. y. " The inhabitants " (that is, cJl 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 prin
ciples of the federal constitution, lo the enjoyment of all the rights,
advantages, and immunities of citizeTis of the United Slates ; and,
in the rnean time, they shall be maintained and protected in the
free enjoyment of their liberty, property, and the reUgion which
they profess."
The cession of Florida to the United States was made on the
same terms. The words of the treaty, on diis point are as fol
lows : —
" Art. 6. The inhabitants oi the territories, which his Catholic
majesty cedes to the United States by this treaty, shall be incor
porated 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 aU die privUeges, rights and immu
nities ofthe citizens ofthe United States."
To aUow any of die "inhabitants," included in tiiose treaties, to
be held as slaves, or denied the rights of citizenship under the
United States eonstitution, is a plain breach of the treaties.

THE CHILDREN OF SLAVES ARE BORN FREE. 129
The constitutions of some of the slave States have provisions
like this, viz., that aU laws preriously in force, shaU 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 prorision — and for two
reeisons ; 1st. These slave acts were previously unconstitutional,
and therefore were not, legally speaking, "laws in force."* 2d.
Every constitution, I think, that has this prorision, has one or
more other prorisions that are "repugnant" to the slave acts

CHAPTER XIII.
THE CHILDREN OP SLAVES ARE BORN FREE.
The idea that the children of slaves are necessarily bom slaves,
or that they necessarUy 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 rine on which it grew ; and so on. But the princi
ple 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 naturaUy subjects of property. The law of nature gives no
aid to anything 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 obrious 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
* This principle would apply, as we have before seen, where the change was
from the colonial to a state govemment. It would also apply to all cases where the
change took place, under the constitution of the United States, from a territorial lo
i stale government. It needs no argument to prove that all our territorial statutes
that have purported to authorize slavery, were unconstitutional.

130 THE UNCONSTITUTIONALITY OF SLAVERY.
of nature denies aU 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 ovraer 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 olher person to assume the owner
ship. 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
indiridual 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 riolation 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 Umitation,
natural law resumes her reign. If, therefore, the govemment
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 contradic
tion 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 enslaring 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 chUd, 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
circimstances whatever. Unless, tiierefore, the letter of the arbi-

THE CHILDREN OF SLAVES ARE BOEN FREE. 131
trary law expUcidy 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 con
stitutions, be correct, no parent has ever yet been legaUy 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, 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 skve
codes admit the principle — for they have special provisions that
the child shaU foUow the condition of die modier ; thus virtuaUy
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 govemments, 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 shaU foUow
the condition of their mothers, are unconstitutional and 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
bom free." But the principle was not new vrith 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 bom free ; for it recognizes the principle that
natural birth in the country gives citizenship* — which of course
* An. 2, Sec. 1, Clause 5 : "No person, except a natural bom citizen, * * *
chall be eligible to the ofiice of President."

132 THE UNCONSTITUTIONALITY OF SLA'VEEY.
impUes freedom. And no exception is made to the rule. Of
course all bom in the country since the adoption of the constitution
of die United States, have been born free, whether diere were, or
were not any legal slaves in the country before that time.
Even the prorisions, in the several State constitutions, that the
legislatures shall not emancipate slaves, would, if aUowed their fuU
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.

THK

UNCONSTITUTIONALITY

OF

SLA YER Y:

PAET SECOND.

BY LYSANDER SPOONER.

BOSTON:
PUBLISHED BY BELA MARSH,

Entered according to Act of Congress, in the year 1847, bjr
LYSANDER SPOONER,
In the Clerk's Ofiice of the District Court of Massachusetts.

.V^%/V^..^^^^'%'V%.>.^^W\..W^^V^..V^.^.'W^/^.X^.%/VW^'VW^..WW^^

stereotyped hT
GEORGE A. CURTiB.
NEW ENGLAND TYFB AND STERSOTTPB FOUHDRT.

CONTENTS OF PART SECOND.

PAOB
CHAPTER XIV. — THE DEFINITION OF LAW, - 137
XV.— OUGHT JUDGES TO RESIGN THEIR
SEATS? - . . 147 .
XVI. — "THE SUPREME POWER OF A STATE," 153
" XVII. — RULES OF INTERPRETATION, - 155
First Rule, - ... 157
Secmd Rule, ... - - 161
Thia-dRitle, - .... 165
Fomth Ruk, ¦ - - - - 168
Fifth RuU,  180
Sixth Ruk,  182
Seventh Rule,  189
Eighth Rule,  196
'Ninth Rvle, -  198
Tenth Rule,  , - 199
Eleventh Rule, - - - - 200
Twelfth Rjde,  200
Thirteenth Ride, - . - - - 201
Fourteenth Rule, - - . - - . 204
Rules cited fob Slavery, .... 205
First Rule cited for Slcxertf, - - - - 205
Second Rule io. do. - - - - 213
Tliird Rule do. dx). - - - - 217
Fourth Rule do. do. - - - - 219
« XVIII. — SERVANTS COUNTED AS UNITS, - 237
« XIX. — SLAVE REPRESENTATION, - 238
« XX.— ALIENS COUNTED AS THREE FIFTHS, 242
« XXL — WHY THE WORDS "FREE PERSONS"
WERE USED, - - 247
« XXIL- "ALL OTHER PERSONS," - 267
« IXX..- ADDITIONAL ARGUMENTS Olt THE
WORD "FREE," - - - - 264
« XXIV. — POWER OF THE GENERAL GOVERN
MENT OVER SLAVERY, - - 269
APPENDIX.
A. , Fugitive Slaves, - - - - 279

UNCONSTITUTIONALITY OF SLAVERY.
PART SECOND.

CHAPTEE XIV-
THE DEFINITION OP LAW.
It has been alleged, by way of objection to the definition of
law given in chapter first, that under it the law would be uncer
tain, and government impracticable. Directly the opposite of both
these allegations is true. Let us see.
1. Natural law, so far from being uncertain, when compared
with statutory and constitutional law, is the only thing that gives
any certainly at all lo a very large portion of our statutory and
constitutional law. The reason is this. The words, in which
statutes and constitutions are written, are susceptible of so many
different meanings, — meanings widely different from, often di
rectly opposite to, each other, in their bearing upon men's rights,
— that, unless there were some rule of interpretation for determin
ing which of these various and opposite meanings are the true
ones, there could be no certainty at all as to the meaning of the
statutes and constitutions themselves. Judges could make almost
anything they should please out of them. Hence the necessity
of a rule of interpretation. And this rule is, tkat the language of
statutes and constitutions shall be construed, as nearly as possible,
consistently with natural laio.
The rule assumes, what is true, that natural law is a thing
certain in itself; also that it is capable of being learned. It
assumes, furthermore, that it actually is understood by the legisla
tors and judges who make and interpret the written law. Of
necessity, therefore, it assumes further, that they (the legislators
and judges) are incompetent to make and interpret the written law,
unless they previously understand the natural law applicable to the
12*

138 THE UNCONSTITUTIONALITY OF SLAVERY.
same subject. It also assumes that the people must understand
the natural law, before ihey can understand the written law.
It is a principle perfectly familiar to lawyers, and one that must
be perfectly obvious to every olher man that will reflect a moment,
that, as a general rule, no one can know what the written law is,
until he knows wkat it ought to be,- that men are liable to be
constantly misled by the various and conflicting senses of the
same words, unless they perceive the true legal sense in which
the words ought to be taken. And this true legal sense is the
sense that is most nearly consistent wilh natural law of any that
the words can be made to bear, consistently wilh the laws of lan
guage, and appropriately to the subjecls to which they are applied.
Though the words contain the law, the words themselves are
not the law. Were the words themselves the law, each single
vsrrilten law would be liable to embrace many different laws, to
wit, as many different laws as there were different senses, and
different combinations of senses, in which each and all the words
were capable of being taken.
Take, for example, the Constitution of the United States. By
adopting one or another sense of the single word "free,", the
whole instrument is changed. Yet, the word free is capable of
some ten or twenty different senses. So that, by changing the
sense of that single word, some ten or twenty different constitu
tions could be made out of the same written instrument. But
there are, we will suppose, a thousand other words in the consti
tution, each of which is capable of from two to ten different senses.
So that, by changing the sense of only a single word at a time,
several thousands of different constiiutions would be made. But
this is not all. Variations could also be made by changing the
senses of two or more words at a time, and these variations could
be run through all the changes and combinations of senses that
these thousand words are capable of. We see, then, that it is no
more than a literal truth, that out of that single instrument, as it
now stands, without altering the location of a single word, might
be formed, by construction and interpretation, more different con
stitutions than figures can well estimate.
But each written law, in order to be a law, must be taken only
m some one definite and distinct sense ; and that definite and dis
tinct sense must be selected from the almost infinite variety of
senses which its words are capable of. How is this selectioti to

THE DEFINITION OF LAW. 139
be made ? It can be only by the aid of that perception of natural
law, or natural justice, which men naturally possess.
Such, then, is the comparative certainty of the natural and the
written law. Nearly all the certainty there is in the latter, so far
as it relates to principles, is based upon, and derived frora, the
still greater certainty of the former. In fact, nearly all the uncer
tainty ofthe laws under which we live, — which are a mixture of
natural and written laws, — arises from the difficulty of construing,
or, rather, from the facility of misconstruing, the written law.
While natural law has nearly or quite the same certainty as
mathematics. On this point. Sir William Jones, one of the most
learned judges that have ever lived, learned in Asiatic as well as
European law, says, — and the fact should be kept forever in
mind, as one of the most important of all truths : — "It is pleasing
to remark the similarity, or, rather, the identity of those conclu
sions which pure, unbiassed reason, in all ages and nations, seldom
fails to draw, in such juridical inquiries as are not fettered and
¦manacled by positive institutions."* In short, the simple fact that
the written law must be interpreted by the natural, is, of itself,
a sufficient confession of the superior certainly of the latter.
The written law, then, even where it can be construed con
sistently with the natural, introduces labor and obscurity, instead
of shutting them out. And this must always be the case, because
words do not create ideas, but only recall them ; and the same word
may recall many different ideas. For this reason, nearly all
abstract principles can be seen by the single mind more clearly
than they can be expressed by words to another. This is owing to
the imperfection of language, and the different senses, meanings,
and shades of meaning, which different individuals attach to the
same words, in the same circumstances.t
Where the written law cannot be construed consistently with
the natural, there is no reason why ¦ t should ever be enacted at
all. It may, indeed, be sufficiently plain and certain to be easily
understood ; but its certainty and plainness are but a poor compen-
* Jones on Bailmenls, 133.
t Kent, describing the difficulty of construing tlie written law, says : —
"Such is the imperfeciion of language, and the want of technical skill in the
makers of the law, that slalules oflen give occasion lo the mosl perplexing and
distressing doubts and discussions, arising from the ambiguity that attends them.
It requires great experience, as well as the command of a perspicuous diction, to
frame a law in such clear and precise terms, as to secure it from amhignoul
expressions, and from all doubts and criticisms upon its meaning." — Kent, 460.

140 THE UNCONSTITUTIONALITY OF SLAVEEY.
sation for its injustice. Doubtless a law forbidding men to drink
water, on pain of death, might be made so intelligible as to cut off
all discussion as to its meaning; but would the intelligibleness of
such a law be any equivalent for the right to drink water ? The
principle is the same in regard to all unjust laws. Few persons
could reasonably feel compensated for the arbitrary destruction of
their rights, by having the order for their destruction made known
beforehand, in terms so distinct and unequivocal as to admit of
neither mistake nor evasion. Yet this is all the compensation
that such laws offer.
Whether, therefore, written laws correspond with, or differ from,
the natural, they are to be condemned. In the first case, they are
useless repetitions, introducing labor and obscurity. In the latter
case, they are positive violations of men's rights.
There would be substantially the same reason in enacting
mathematics by statute, that there is in enacting natural law.
Whenever the natural law is suflicientiy certain to all men's
minds to justify ils being enacted, it is sufficiently certain to need
no enactment. On the other hand, until it be thus certain, there
is danger of doing injustice by enacting it ; it should, therefore, be
left open to be discussed by anybody who may be disposed to
question it, and to be judged of by the proper tribunal, the judici
ary.* It is not necessary that legislators should enact natural law in
order that it may be known to the people, because that would be
presuming that the legislators already understand it better than the
people, — a fact of which I am not aware that they have ever here
tofore given any very satisfactory evidence. The ^ame sources of
knowledge on the subject, are open to the people, that are open to
the legislators, and the people must be presumed to know it as
well as they.t

* This condemnation of written laws musl, of course, be understood as applying
only to cases where principles and rights are involved, and not as condemning any
governmental arrangements, or instrumentalities, that are consistent with natural
right, and which musl be agreed upon for the purpose of carrying natural law into
effect. These things may be varied, as expediency may dictate, so only that they
be allowed to infringe no principle of justice. And they must, of course, be writ
ten, because they do not exist as fixed principles, or laws in nature.
+ The objections made to natural law, on the ground of obscurity, are wholly
unfounded. It is true, it must be learned, like any other science, bnt it is equally
true, that it is very easily learned. Although as illimitable in its applications as
the infinite relations of men to each olher, it is, nevertheless, made up of simple
elementary principles, of the truth and justice of which every ordinary mind has

THE DEFINITION OF LAW. 141
2. But it is said further, that government is not practicable under
this theory of natural law. If by this is meant only that govern
ment cannot have the same arbitrary and undisputed supremacy
over men's rights, as under other systems — the same absolute
an almost intuitive perception. It is the science of justice, — and aUnost all men
have the same perceptions of what constitutes justice, or of what justice requires,
when they understand alike the facts from which their inferences are to be drawn.
Men living in contact with each other, and having intercourse togelher, cannot
avoid learning natural law, to a very great extent, even if they would. The deal
ings of men wilh men, their separate possessions, and their individual wants, are
continually forcing upon their minds the questions, — Is this act just? or is il un
just 1 Is this thing mine? or is il his ? And these are questions of natural law ;
questions, which, in regard to the greal mass of cases, are answered alike by the
human mind everywhere.
Children learn many principles of natural law at a very early age. Por example :
they learn that when one child has picked up an apple or a flower, it is his,
and that his associates musl not take it from him against his will. They also
learn that if he voluntarily exchange his apple or flower with a playmate, for some
other article of desire, he has thereby surrendered his right to il, and musl not
reclaim it. These are fundamental principles of natural law, which govern most
of the greatest interests of individuals and society ; yet, children learn them earlier
than they learn that three and three are six, or five and five, ten. Talk of enacting
natural law by statute, that it may be known ! It would hardly be extravagant to
say, that, in nine cases in ten, men learn it before they have learned the language
by which we describe il. Nevertheless, numerous treatises are writlen on il, as on
other sciences. The decisions of courts, containing their opinions upon the almost
endless variety of cases that have come before them, are reported ; and these
reports are condensed, codified, and digested, so as to give, in a small compass, the
facts, and the opinions of the courts as to the law resulting from them. And these
treatises, codes, and digests are open to be read of all men. And a man has the
same excuse for being ignorant of arithmetic, or any other science, that he has for
being ignorant of natural law. He can learn it as well, if he wjll, mthout its
being enacted, as he could if it were.
If our governments would but themselves adhere to natural law, there would be
little occasion to complain of the ignorance of the people in regard to it. The pop
ular ignorance of law is attributable mainly to the innovations that have been
made upon natural law by legislation ; whereby our system has become an incon
gruous mixture of natural and statute law, wilh no uniform principle pervading it.
To learn such a system, — if system il can he called, and if leamed it can be,— is a
matter of very similar difiiculty to whal it would be to learn a system of mathemat
ics, which should consist of the mathematics of nature, interspersed wilh such
other mathematics as might be created by legislation, in violation of all the natural
principles of numbers and quantities.
But whether the difficulties of learning natural law be greater or less than here
represented, they exist in the nature of things, and cannot be removed. Legislation,
instead of removing, only increases them. This il does by innovating upon natural
truths and principles, and introducing jargon and contradiction, in the place of
order, analogy, consistency, and uniformity.
Further than this ; legislation does ndl even profess lo remove the obscurity of
natural law. That is no part of ils object. It only professes to substitute some-

142 THE UNCONSTITUTIONALITY OF SLAVERY.
authority to do injustice, or to maintain justice, at its pleasure —
the allegation is of course true ; and it is precisely that, that con
stitutes the merits of the systera. But if anything more than
that is meant, it is untrue. The theory presents no obstacle to
the use of all just means for the maintenance of justice; and this
is all the power that government ought ever to have. It is all the
povver that it can have, consistently wilh the rights of those on
whom it is to operate. To say that such a government is not
practicable, is equivalent to saying that no governments are prac
ticable but arbitrary ones ; none but those that are licensed to do
injustice, as well as to maintain justice. If these latter govern
ments only are practicable, it is lime that all men knew it, in order
that those who are to be made victims may stand on their defence,
instead of being cheated into submission by the falsehood that
government is their protector, and is licensed to do, and intends to
do, nothing but justice to any.
If we say it is impracticable to limit the constitutional power of
government to the maintenance of natural law, we must, to be
consistent, have done with all attempts to limit government at all
by written constitutions ; for it is obviously as easy, by written
constitutions,, to limit the powers of government to the maintenance
of natural law, as to give them any other limit whatever. And if
they were thus limited expressly, it would then, for the reasons
before given, be as easy, and even altogether more easy, for the
judiciary to determine what legislation was constitutional, and what
not, than it is under a constitution that should attempt to define the
powers of government arbitrarily.
thing arbitrary in the place of natural law. Legislators generally have the sense
to see that legislation will not make. natural law any clearer than il is.
Neither is il the object of legislation to establish the authority of natural law.
Legislators have the sense to see that they can add nothing to the authority of
natural law, and that it will stand on its own authority, unless they overturn il.
The whole object of legislation, excepting that legislation which merely makes
regulations, and provides instrumentalities for caiTying other laws into effect, is to
overturn natural law, and substitute for il the arbitrary will of fower. In olher
words, the whole pbjecl of il is lo destroy men's rights. At least, such is its oulj
effect ; and its design must be inferred from its effect. Taking all the slalules in
the country, there probably is not one in a hundred, — except the auxiliary ones just
mentioned, — that does not violate natural law ; that does not invade some right oi
other. Yet, the advocates of arbitrary legislation are continually practising the fraud ol
pretending, that unless the legislature make the laws, the laws will not be known.
The whole object of the fraud is to secure to the governmeni the authority of
making laws that never ought to be known.

THE DEFINITION OF LAW. 143
On what ground it can seriously be said that such a govemment
is impracticable, it is difiicult to conceive. Protecting the rights
of all, it would naturally secure ihe cordial support of all, instead
of .a part only. The expense of maintaining it would be far less
than that of maintaining a different one. And it would certainly
be much more practicable to live under it, than under any other.
Indeed, this is the o'nly government which il is practicable to estab
lish by the consent of all the governed ; for an unjust government
must have victims, and ihe victims cannot be supposed to give their
consent. All governments, therefore, that profess lo be founded
on the consent of the governed, and yet have authority to violate
natural laws, are necessarily frauds. It is not a supposable case,
that all, or even any very large part, of the governed, can have
agreed to them. Justice is evidently the only principle that every
body can be presumed to agree to, in the formation of government.
It is true that those appointed to administer a governraent
founded on natural law, might, through ignorance or corruption.
depart from the true theory of the governraent in particular cases,
as they do under any other system ; and these departures from the
system would be departures from justice. But departures from
justice would occur only through the errors of the men ; such
errors as systems cannot wholly prevent; they would never, as
under olher systeras, be authorized by the constitution. And even
errors arising from ignorance and corruption would be much less
frequent than under other systems, because the powers of govern
ment would be much more definite and intelligible ; they could
not, as under other systems, be stretched and strained by construc
tion, so as to afford a pretext for anything and everything that
corruption might desire to accomplish.
It is probable that, on an average, three fourths, and not un
likely nine tenths, of all the law questions that are decided in the
progress of every trial in our courts, are decided on natural prin
ciples ; such questions, for instance, as those of evidence, crime,
the obligation of contracts, the burden of proof, the rights of
property, &c., &c.* If government be practicable, as we thus see
it to be, where three fourths or nine tenths of the law administered

* Kent says, and truly, that " A great proportion of the rules and maxims,
which constitute the immense code of the common law. grew into iise by gradual
adoption, and received the sanction of the courts of justice, without any legislative
act or interference. It was the application of the dictates of natural j-ustice and
cultivated reason to particular cases." 1 Kent, 470.

144 THE UNCONSTITUTIONALITY OF SLAVERY.
is natural, it would be equally practicable where the whole was
so. So far from government being impracticable on principles of
natural law, it is wholly impracticable to have a government of
law, applicable to all cases, unless the great body of the law ad
ministered be natural ; because it is impossible for legislation to
anticipate but a small portion of the cases that must arise in regard
to men's rights, so as to enact a law for them. In all the cases
which the legislature cannot anticipate and provide for, natural law
must prevail, or there can be no law for them, and, conseqiiently,
— so far as those cases are concerned — no government.
Whether, therefore, we regard the certainty of the law, or the
practicability of a government applicable to all cases, the preference
is incomparably in favor of natural law.
But suppose it were not so. Suppose, for the sake of the argu
ment, that the meaning of the arbitrary commands of power were,
in the majority of cases, more easily ascertained than the principles
of natural justice ; is that any proof that the former are law, and
the latter not ? Does the comparative intelligibility of the two
determine which is to be adopted as the true definition of law ? It
is very often easier to understand a lie than to ascertain a truth ;
but is that any proof that falsehood is synonymous with fact ? or
is it any reason why falsehood should be held to be fact? As
much reason would there be in saying this, as there is in saying
that the will of the supreme power of the state is law, or should
be held to be law, rather than natural justice, because it is easier
to understand the former than to ascertain the latter.
Or suppose, further, that government were impracticable, under
such a definition of law as makes law synonymous with natural
justice ; would that be any argument against the definition ? or only
against government ?
The objection to the practicability of government under such a
definition of law, assumes, 1st, that government must be sustained,
whether it administer justice or injustice ; and, 2d, that its com
mands must be called law, whether they really are law or not.
Whereas, if justice be not law, it may certainly be questioned
whether government ought to be sustained. And to this question
all reasonable men must answer, that we receive such an abundance
of injustice from private persons, as to make it inexpedient to
maintain a government for the sole purpose of increasing the sup
ply. But even if unjust government must be sustainedrthe ques-

THE DEFINITION OF LAW. 145
tion will still remain, whether its comraands ought to be called
law ? If they are not law, they should be called by their right
name, whatever it may be.
Ia short, the definition of law involves a question of truth or
falsehood. Natural justice either is law, or it is not. If it be law,
it is always law, and nothing inconsistent with it ca:n ever be made
law. If it be not law, then we have no law excepi what is pre
scribed by the reigning power of the state ; and all idea of justice
being any part of our system of law, any further than it may be
specially prescribed, ought to be abandoned ; and government
ought to acknowledge that its authority rests solely on its power
to compel submission, and that there is not necessarily any moral
obligation of obedience to its mandates.
If natural justice be rwt law, then all the decisions that are
made by our courts on natural principles, without being prescribed
by statute or constitution, are unauthorized, and not law. And
the decisions of this kind, as has already beeri supposed, comprise
probably three fourths, or more likely nine tenths, of all the deci
sions given by our courts as law.*
If natural justice be law, then all statutes and constitutions
inconsistent with it are no law, and courts are bound to say so.
Courts must adopt some definition of law, and adhere to il. They
cannot make it mean the two opposite principles of jus'tice and
injustice at once. White cannot be made white and black at the
same time, by the assertions of all the courts on the globe. Neither
can law be made tvvo opposite things at once. It must be either
one thing or the olher.
No one doubts that there is such a principle as natural law ; and
natural law is natural justice. If natural justice be law, natural
injustice cannot be made law, either by " the supreme power of the
 \ 
* That is, these decisions are unauthorized, on the supposition that justice is
not necessarily law, unless the general requirement, made upon courts by some
of our constitutions, that they " administer right and justice," or some other re
quirement contained in them equivalent to that, be considered as arbitrarily pre
scribing these principles as law, and thus authorizing the decisions. Bul if these
requirements, instead of being regarded, as they doubtless ought lo be, as an ac
knowledgment that " right and justice " are law of themselves, be considered only
as arbitrarily prescribing them as law, it is at least an admission that the simple
words "riglit and justice" express, with legal accuracy, an inflnite variety of fixed,
definite, and certain principles, that are properly applicable, as law, to the relations
of man wilh man. Bul wherever a constitution makes no such requirement, the
decisions are illegal, as being made without authority, unless justice itself be law
13

146 THE UNCONSTITUTIONALITY OF SLAVEKY.
State," or by any other power ; and it is a fraud to call it by tbat
name. " The supreme powers of states," whether composed of majori
ties or minorities, have alike assumed to dignify their unjust cora
mands with the name of law, simply for the purpose of cheating
the ignorant into submission, by impressing them with the idea
that obedience was a duty.
The received definition of law, viz., that it is " a rule of civil
conduct prescribed by the supreme power of a state," had its origin
in days of ignorance and despotism, when government was founded
in force, without any acknowledgment of the natural rights of men.
Yet even in those days the principle of justice competed, as now,
with the principle of power, in giving the definition of law ; for
justice was conceded to be the law in all, or very nearly all, the
cases where the will of the supreme power had not been explicitly
made known ; and those cases comprised, as now, a very large
portion of all the cases adjudicated.
What a shame and reproach, nay, what an unparalleled crime
is it, that at this day, and in this cowitry, where men's natural
rights are universally acknowledged, and universally acknowledged
to be inalienable, and where govemment is acknowledged to have
no just powers except what it derives from the consent of the gov
erned, (who can never be supposed to consent to any invasion of
their rights, and who can be supposed to establish govemment only
for their protection,) a definition of law should be adhered to, that
denies all these self-evident and glorious truths, blots out all men's
natural rights, founds government on force, buries all present
knowledge under the ignorance and tyranny of the past, and
commits the liberties of mankind to the custody of unrestrained
power !
The enactment and enforcement of unjust laws are the greatest
crimes that are committed by man against man. The crimes of
single individuals invade the rights of single individuals. Unjust
laws invade the rights of large bodies of men, often of a majority
of the whole coramunity ; and generally of that portion of com
munity who, from ignorance and poverty, are least able to bear the
wrong, and at the same time least capable of resistance.*

* We add the foUowilig authorities to those given in the note lo chapter first, on
the true nature and definition of law : — Cicero says, " There is a true law, a right
reason, conformable to nalure, universal, unchangeable, eternal. * * * * Tijig
law cannot be contradicted by any other law, and is not liable either to derogation

OUGHT JUDGES TO EESIGN THEIR SEATS ? 147
CHAPTER XV.
OUGHT JUDGES TO RESIGN THEIR SEATS?
It being admitted that a judge can rightfully administer injustice
as law, in no case, and on no pretence whatever ; that he has no
right to assume an oath to do so ; and that all oaths of that kind
or abrogation. Neither the senate nor the people can give us any dispensation for
not obeyingthis universal law of justice. * * * * It is not oue thing at Rome,
and anoiher al Athens ; one thing to-day, and anoiher to-morrow ; but in all times
and nations, this universal law must forever reign, eternal and imperishable. * ?
* * He who obeys it not, flies from himself, and does violence to the very nalure
of man." — Cicero's Repvitlic, Barham's Translation, B. 3,p. 270.
"This justice is the very foundation of lawful government in political constitu
lions." — Same, B. 3, p. 272.
" To secure to the citizens the benefits of an honest and happy life, is the grand
object of all political associations." — Sa,me, B. i,p. 283.
"There is no employment so essentially royal as the exposition of equity,
which comprises the true meaning of all laws." — Same, B. 6, p. 290.
"According to the Greeks, the name of law implies an equitable distribution of
goods ; according to the Romans, an equitable discrimination belween good and
evil. The true definition of law should, however, include both these character
istics. And this being granted as an almost self-evident proposition, the origin
of justice is to be sought in the divine law of eternal and immutable morality." —
Cicero's Treatise on the Laws, Barham's Tra-nslation, B. I, p. 37.
" Of all the questions which our philosophers argue, there is none which it is more
important thoroughly to understand than this, — that man is born for justice, a-nd
that law and equity are not a -mere establishment of opinion, but an i'nstituiion of
nature." — Same, B. 1, p. 45.
" Nature hath not merely given us reason, bul right reason, and, consequently,
that law, which is nothing else than right reason, enjoining what is good, and for
bidding what is evil.
" Now, if nature hath given us law, she hath also given us justice ; for, as she
has bestowed reason on all, she has equally bestowed the sense of justice on all."
-Same, B. I, p. 4S.
" Nature herself is the foundation of justice." — Same, B. 1 , p. 49.
" It is an absurd extravagance, in some philosophers, to assert that all things are
necessarily just, which are established by the civil laws and the institutions of the
people. Are, then, the laws of tyrants just, simply because they are laws ? If the
thirty tyrants of Athens imposed certaiu laws on the Athenians, and if these Atheni
ans were delighted with these tyrannical laws, are we, therefore, bound to consider
these laws as just? For my own part, I do not think such laws deserve any
greater estimation than that passed during our own interregnum, which ordained
that the dictator should be empowered to put to death wilh impunity, whatever
citizens he pleased, wiihout hearing them in their own defence.
"There can be but one essential justice which cements society, and one law
Vrhich establishes this justice. This law is right reason, which is the true rule of
all commandments and prohibitions. Whoever neglects this law, whether written
or unwritten, is necessarily unjust and wicked.

148 THE unconstitutionality of SLAVEKY.
are morally void ; the question arises, whether a judge, who has
actually sworn to support an unjust constitution, be morally bound
" But if justice consist in submission to written laws and customs, and if, as the
Epicureans persist in affirming, everything must be measured by utility alone, he
who wishes to flnd an occasion of breaking such laws and customs, will be sure to
discover it. So that real justice remains powerless if not supported by nature,
and this pretended justice is overturned by that very utility which they call its
foundation." — Same, B. \,p. 55-6.
" If nature does not ratify law, all virtues lose their sway." — Same, B. I, p. 55,
"If the will ofthe people, the decrees of the senate, the adjudications of magis
trates, were sufficient to establish justice, the only question would be how to gain
suflrages, and to win over the votes of the majority, in order that corruption and
spoliation, and the falsification of wills, should become lawful. But if the opinions
and suffrages of foolish men had sufficient weight to outbalance the nature of
things, might they not determine among them, that what is essentially bad aud
pernicious should henceforth pass for good and beneficial ? Or why should not a
law,able lo enforce injustice, take the place of equity? Would not this same law
be able lo change evil into good, and good into evil?
"As far as we are concemed, we have no other rule capable of distinguishing
between a good or a bad law, than our natural conscience and reason. These, how
ever, enable us lo separate justice from injustice, and to discriminate between the
honest and the scandalous. For common sense has impressed in our miuds the
first principles of things, and has given us a general acquaintance wilh them, by
which we connect with virtue every honorable and excellent quality, and with vice
all that is abominable and disgraceful.
" Now we must entirely take leave of our senses, ere we can suppose that law
and justice have no foundation in nature, and rely merely on the transient opin
ions of men." — Same, B. I, p. 56-7.
" Whatever is just is always the true law ; nor can this true law either be origi
nated or abrogated by any written enactments." — Same, B. 2, p. 83.
"As the divine mind, or reason, is the supreme law, so it exists in the mind of
the sage, so far as it can be perfected in man. With respect to civil laws, which
differ in all ages and nations, the name of law belongs to them not so much by
right as by the favor of the people. For every law which deserves the name of
a law ought to be moraUy good and laudable, as we might demonstrate by the
following arguments. It is clear, that laws were originally made forthe security of
the people, for the preservation of cities, for the peace and benefit of society.
Doubtless, the first legislators persuaded the people that they would write and pub
lish such laws only as should conduce to the general morality and happiness, if
they wbuld receivfe and obey them. Such were the regulations, which being set
tled and sanctioned, they justly entitled laws. Prom which, we may reasonably
conclude, that those who made unjustifiable and pernicious enactments for the peo'-
ple, counteracted their own promises and professions, and established anything
rather than laws, properly so called, since it is evident that the very signification
of the word law comprehends the essence and energy of iustice and e°auitv " —
Samc,B.2,p.a3-A. ''
"Marcus. If then, in the majority of nations, many pernicious and mischievous
enactments are made, as far removed from the law of justice we have defined as
the mutual engagements of robbers, are we bound to call them laws') For as we

they will. For law is the just distinction between right and wrong, conform-

OUGHT JUDGES TO RESIGN THEIR SEATS ? 149
to resign his seat ? or whether he may rightfully retain his office,
administering justice, instead of injustice, regardless of his oath ?
able lo nature, the original and principal regulator of all things, by which the laws
¦of men should be measured, whether they punish the guilty, or protect the inno-
ceat. " Quintus. I quite agree with you, and think that no law but that of justice
should either be proclaimed as a law, or enforced as a law.
" Marcus. Then you regard as nuUable and voidable, the laws of Titius and
Apnleius, because they are unjust.
" Quintus. You may say the same ofthe laws of Livius.
" Marcus. You are right ; and so much the more, since a singlevote of the sen
ate would be sufficient to abrogate them in an instant. But that law of justice
which I have explained can never be rendered obsolete or inefficacious.
" Quintus. And, therefore, you require those laws of justice the more ardently,
because they would be durable and permanent, and would not require those per
petual alterations which all injudicious enactments demand." — Same, B. 2,
p. 85-6.
"Long before positive laws were instituted, the moral relations of justice were
absolute and universal." — Montesquieu.
" All the tranquillity, the happiness, and security ofthe human race, rests on jus
tice ; on the obligation of paying a regard lo the rights of others." — 'Vattel, B. 2,
thap. 12, sec. 163.
"Justice is the basis of all society." — 'Vattel, B. 1, chap, ft, see. 63.
Bacon says, " There are in nature certain fountains of justice, whence all civil
laws are derived but as streams." — Bacon's Tract on Universal Justice.
" Let no" man weakly conceive that just laws, and true policy, have any antipathy,
for they are like the spirits and sinews, that one moves with the other." — Bacon's
Essay on Judicature.
" Justice is the end of governmeni. It is the end of civil society." — Federalist,
No. 61.
About half our state constitutions specially require of our courts that they admin
ister " right and justice " to every man.
The national constitution enumerates among its objects, the establishment of
¦"justice," and the security of "liberty."
Judge Story says, " To establish justice must forever be one of the greatest ends
cf every wise government ; and even in arbitrary governments it musl, to a great
extent, be practised, at least in respect to private persons, as the only security
against rebellion, private vengeance, and popular cruelty. But in a free govern
ment, it lies at the very basis of all its institutions. Without justice being freely,
fully, and impartially administered, neither our persons, nor our rights, nor our
property, can be protected." — 1 Story's Com. on Const., 463.
" It appears in our books, that, in many cases, the common law will control acts
of parliament, and sometimes adjudge them to be utterly void ; for when an act of
parliament is against common right or reason, the common law will control it, and
adjudge such act to be void," — Coke, in Bonha^m's case; 4 Coke's Rep., part 8,
p. 118.
Kent also, although he holds that, in England, " the will of the legislature is
the supreme law of the land, and demands perfect obedience," yet says : " But
while we admit this conclusion ofthe English law, we cannot but admire the intre-
^lidity and powerful sense of justice which led Lord Coke, when Chief Justice of
ihe King's bench, lb declare, as he did in Doctor Bonham's case, that the common
law doth control acts of parliament, and adjudges them void when against common
sight and reason. The same sense of justice and freedom of opiuioa led Lord
13*

i50 THE UNCONSTITUTIONALITY OF SLAVERY.
The prevalent idea is, that he ought to resign his seat ; and
high authorities may be cited for this opinion. Nevertheless, the
opinion is probably erroneous ; for it would seem that, however
wronff it may be to take the oath, yet the oath, when taken, being
morally void to all intents and purposes, can no more bind the
taker to resign his office, than to fulfil the oath itself.
The case appears to be this : The office is simply power, put into
a man's hands, on the condition, based upon his oath, that he will
use that power to the destruction or injury of some person's rights.
This condition, it is agreed, is void. He holds the power, then,
by the .same right that he would have done if it had been put into
his hands witkout the condition. Now, seeing tbat he cannot
fulfill, and is under no obligation to fulfill, this void condition, the
question is, whether he is bound to resign the power, in order that
it may be given to some one who will fulfill the condition ? or
whether he is bound to hold the power, not only for the purpose
of using it himself in defence oi justice, but also for the purpose
of withholding it from the hands of those who, if he surrender it
to them, will use it unjustly? Is it not clear that he is bound to
retain it for both of these reasons ?
Suppose A put a sword into the hands of B, on the condition
of B's taking an oath that with it he will murder C. Now, how
ever immoral the taking of this oath may be, yet, when taken, the
oath and the condition are utterly void. They are incapable of
raising the least moral obligation, of any kind whatever, on the
part of B towards A. B tben holds the sword on the same prin
ciple, and by tbe same right, that he would have done if it had
Chief Justice Hobart, in Day vs. Savage, to insist that an act of parliament,
made against natural equity, as to make a man judge in his own case, was void ;
and induced Lord Chiefjustice Holt to say, in the case of the City of London vs.
Wood, that the observation of Lord Coke was not extravagant, but was a very
reasonable and true saying." — 1 Kent, 448.
" A treaty made from an unjust and dishonest intention is absolutely null, no
body having a right to engage to do things contrary to tbe law of nature."— Vattel,
B. 2, chap. 12, sec. 161. ,
That definition which makes law to be " a rule of civil condncl, prescribed by th-e
supreme power of a state, commanding what its subjects are to do, and prohibit
ing what they are to forbear," is manifestly a false definition, inasmuch as it docs
not include the law of nations. The law of nations has never been " prescribed "
by any " supreme power," that regards the nations as its " subjects." and rules over
them as other governments rule over individuals. Nations acknowledge no such
supreme power. The law of nations is, in reality, nothing else than the law of
nature, applicable to nations. Yet it is a law which all civilized nations acknowl
edge, and is all that preserves the peace of nations ; and no definition of law that
excludes so important a portio^ of the law of the world, can reasonably be fot a
moment regarded as true.

OirCHT JODGES TO RESIGN THEIE SEATS ? 151
been put into his hands without any oath or condiiion whatever.
Niw the question is, whether B, on refusing to fulai the condition,
is boond to retain the sword, and use it, if necessary, in defenux
of C ? or whether he is boand to retum it to A, in order that A
may give it to some one who will use it for the murder of C ?
The case seems to be clear. K he were to give up the sword,
under these circumstances, knowing the use that was intended to
fae made of it, and it should then be used, bv some other person,
for ihe murder of C, he would be, on both moral and legal prin
ciples, as much accessary to the murder ot C, as though he had
fumished the sword for that specific purpose, under any oiher cir
cumstances whatever.
S appose A and B come to C with money, which ihey have
stolen from D, and intrus'. it to him, on condition of his taking an
oa.h to rrs'.ore i: to them when ihev shall call for i'.. Of course,
C ought not to take such an oath in orier to get possession of the
money ; yet, if he have taken the oath, and received the monev.
his duty, on both moral and legal principles, is tken the same as
though he had received it without any oath or condition ; because
the oath and condition are both morallv and legally void. And if
fae were to restore the money to A and B, instead of restoring it
to D, the trae owner, he would make himself their accomplice in
the theft — a receiver of stolen goods. It is his duty to restore it
to D-
Suppose A and B come to C, with a captive, D, whom they
have seized with the intention of reducing him to slaverv ; and
should leave him in the custody of C, on condition of C"s taking
an oath that he will restore him to them again. Now, althongh it
is wrong for C to take suck an oath for the purpose of getting the
custody of D, even wilh a view to set him free, yet, if he have
taken it, it is void, and his duty then is, not to give D up to his
captors, but to set him at liberty — else he will be an accomplice
in the crime of enslaving him.
The principle, in al! these cases, appears to be preciselv similar
to that in tbe case of a judge, who has sworn to support an unjust
constitution. He is intrusted with certain power over the rights
of men, on condition of his takin? an oath that he will use the
power for the violation of those rights. It would seem that there
can hardly be a question, on either moral or legal principles, that
this power, which he has received on the condition that he shall
use it for the destruction of mea's rights, he is bound to retain and
use for their defence.

52 THE UNCONSTITUTIONALITY OF SLAVEKY.
If there be any diflTerence of principle in these several cases, 1
should like much to see it pointed out. There probably is none.
And if there be none, the principle that would induce a judge to
resign his power ; is only a specimen of the honor that is said to
prevail among thieves ; it is no part of the morality that should
govern men claiming to be just towards all mankind. It is indeed
but a poor specimen even of the honor of thieves, for that honor,
I think, only forbids the exposure of one's accomplices, and the
seizure, for one's own use, of more than his agreed share of the
spoils ; it hardly forbids the restoration of stolen property to its
rightful owners.
As long as the dogma is sustained that a judge is morally bound
either to fulfil his oath to support an unjust constitution, or to sur
render the power that has been entrusted to him for that purpose,
so long those, who wish to establish such constitutions, will be
encouraged to do so ; because they will know that they can always
find creatures enough, who will accept the office for its honors and
emoluments, and will then execute it, if they must, rather than
surrender them. But let the principle be established that such
oaths are void, and that the power conferred is therefore held on
the same grounds as though the oath had not been taken at att,
and one security, at least, for the execution of unjust constitutions
is taken away, and the inducement to establish them is consequently
weakened. Judges and other public officers habitually appeal to the pre
tended obligation of their oaths, when about to perform some act
of iniquity, for which they can find no other apology, and for
which they feel obliged to offer some apology. Hence the irapor
tance of the doctrine here maintained, if it be true.
Perhaps it will be said that a judge has no right to set up his
own notions of the validity of a statute, or constitution, against
the opinions of those who enact or establish it ; that he is bound
to suppose that they consider the statute or constitution entirety
just, whatever may be his own opinion of it; and that he"is there
fore bound to yield his opinion to theirs, or to resign his seat.
But this is only saying that, though appointed judge, he has no
right to be judge. It is the prerogative of a judge to decide eveiy-
thing that is involved in the question of law, or no law. His own
mind alone is the arbiter. To say that it is not, is to say that he
is not judge. He may err, like other men. Those who appoint
him, take the risk of his errors. He is bound only by his owu
convictiofls.

" THE SUPREME POWER OF A STATE." 153
But there is no reason in presuming that legislators, or constitu
tion makers, when they violate natural law, do it in the belief that
they are conforming to it. Everybody is presumed to know the
law, especially natural law. And legislators must be presumed
to know it, as well as other men ; and if they violate it, (which
question the judge raust decide,) they, like other raen, must be
presumed to have done it intentionally.

CHAPTER XVI.
"THE SUPREME POWER OF A STATE."
If any additional! argument were needed to enforce the author
ity of natural law, it would be found in the nature of the only
opposing authority, to wit, the authority of " the supreme power
of the state," as it is called.
In most " states," " the supreme power " is obtained by force,
and rests upon force ; and its mandates do not necessarily have any
other authority than what force can give them.
But in this country, " the supreme power " is acknowledged, in
theory, to rest with the people. Our constitutions purport to be
established by " the people," and, in theory, " all the people " con
sent to such government as the constitutions authorize. But this
consent of " the people " exists only in theory. It has no exis
tence in fact. Government is in reality established by the few;
and these few assume the consent of all the rest, without any such
consent being actually given. Let us see if such be not the fact.
Only the male adults are allowed to vote either in the choice of
delegates to form constitutions, or in the choice of legislators
under the constitutions. These voters comprise not more than one
fifth oi the population. A bare majority of these voters, — that
is, a little more than one tenth of the whole people, — choose the
delegates and representatives. And then a bare majority of these
delegates and representatives, (which majority were chosen by,
and, consequently, represent but little more than one twentieth of
the whole people,) adopt the constitution, and enact the statutes.
Thus the actual makers of constitutions and statutes cannot be said
to be the representatives of but little .nore than one twentieth of
the people whose rights are afiected by their action.
In fact, not one twentieth, but only a little more than one forti-

i54 THE UNCONSTITUTIONALITY OF SLAVERY.
eth, of the people, are necessarily represented in our statutory legis-
lalion, state and national ; for, in the national legislature, and in
irearly all the state legislatures, a bare majority of the legislative
bodies constitute a quorum, and a bare majority of that quorum
are sufficient to enact the laws. The result, then, is substantially
this. Not more than one fifth of the people vote. A bare majority
of that fifth, (being about one tenth of the whole,) choose the
legislators. A bare majority of the legislators, (representing but
about one twentieth of the people,) constitute a quorum. A
bare majority of the quorum, (representing but about one fortieth
ofthe people.) are sufficient to make the laws.
Finally. Even the will of this one fortieth of the people cannot
be said to be represented in the general legislation, because the
representative is necessarily chosen for his opinions on one, or at
most a few, iraportant topics, when, in fact, he legislates on an
hundred, or a thousand others, in regard to many, perhaps most,
of which, he differs in opinion from those who actually voted for
him. He can, therefore, with certainty, be said to represent
nobody but himself.
Yet the statutory and constitutional law, that is manufactured in
this ridiculous and fraudulent manner, is claimed to be the will of
" the supreme power of the state ;" and even though it purport to
authorize the invasion, or even the destruction, of the natural
rights of large bodies of the people, — men, women, and children,
— it is, nevertheless, held to have been established by the consent
of the whole people, and to be of higher authority than the princi
ples of justice and natural law. And our judges, with a sanc
timony as disgusting as it is hypocritical, continually ofl^er these
statutes and constiiutions as their warrant for such violations of
men's rights, as, if perpetrated by them in their private capacities,
would bring upon them the doom which they themselves pro
nounce upon felons.*

* Tho objection stated in the text, lo our present system of legislation, will not
lie obviated in principle, hy assuming that the male adults are natural guardians of
women and children, as they undoubtedly are of children, and perhaps, alsp, in
some sense, of women. But if they are their natural guardians, they are their
guardians only for the purpose of protecting their rights ; not for the purpose of
taking them away. Nevertheless, suppose, for the s-ake of the argument, that the
women and children arc really and rightfully represented through the male adults,
the objection will still remain that the legislators are chosen by a bare majoriiy of
the voters, (representing a bare majority of the people ;) and then, a bare majority
ofthe legislators chosen constitute a quorum ; and a bare majority of this quorum

EULES OF INTERPRETATION. 155

CHAPTEE XVII.
RULES OP INTERPRETATION.*
The three preceding chapters, as also chapter first, although their
principles are claimed to be of paramount authority, as law, to all
statutes and constiiutions inconsistent with them, are nevertheless
not claimed lo have anything to do with the question of the con
stitutionality or unconstitutionality of slavery, further than this,
viz., that they indicate the rule of interpretation that should be
adopted in construing the constitution. They prove the reason
ableness, propriety, and therefore truth, of the rule, quoted from
the supreme court of the United States, and adopted in the prior
argument, as the fundamental rule of interpretation ; a rule which,
if adhered to, unquestionably proves that slavery is unconstitu
tional. That rule is this.
" Where rights are infringed, where fundamental principles are
overthrown, where the general systera of the lawst 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." 2 Cranch, 390.
The whole question of the constitutionality or unconstitutionality
make the laws. So that, even then, the actual law-makers represent hut little
more than one eighth ofthe people.
If the principle is to be acted upon, that the majority have a right to rule arbitra
rily, there is no legitimate way of carrying out that principle, but by requiring,
either that a majority of the whole people, (or of the voters,) should vote in favor
of every separate law, or by requiring entire unanimity in the representative bodies,
who actually represent only a majority of the people.
But the principle is utterly false, that a majority, however large, have any right
to rule so as to violate the natural rights of any single individual. It is as unjust
for millions of men to murder, ravish, enslave, rob, or otherwise injure a single
individual, as it is ibr another single individual to do it.
? Two things are necessary to a good lawyer. 1 . A knowledge of natural
law. This knowledge, indispensahle to the peace and security of mankind, in their
dealings, intercourse, and neighborhood wilh each other, is possessed, in some
good measure, by mankind at large. 2. A knowledge o.fthe rules of interpreting
the written law. These are few, simple, natural, reasonable, just, and easily
learned. These two branches of knowledge comprise substantially all the science,
nnd all "the reason," there are inthe law. I hope these considerations, in addition.
to that of understanding the constitution, may induce all, who read any portion of
this book, to read with patience this chapter on the rules of interpretation, however
tedious il may be.
t In " The Unconstitutionality of Slavery," the word laws, in this rule, was
printed taw, through my inadvertence in copying the rule. The error was not dis-

156 RULES OF INTERPRETATION.
of slavery, is one of construction. And the real question is oniy
whether the rules, applicable to the interpretation of statutes, and
all other legal instruments, that are enforced by courts as obliga
tory, shall be applied also to the interpretation of the constitution ?
or whether these rules are to be discarded, and the worst possible
raeaning of which the words are capable put upon the instruraent
arbitrarily, and for no purpose but to sustain slavery 'i This is the
question, and the whole of it.
The validity of the rule, quoted from the supreme court, has
not, so far as I am aware, been denied. But some of the expla
nations given of the rule, in the prior argument, have been called
in question. As the whole question at issue, in regard to the cop-
slitutionality of slavery, is one solely of interpretation, it becomes
iraportant to sustain, not only the explanations given of this rule,

covered until it was pointed out by Wendell Phillips. I am obliged lo him for the
correction. A case might be supposed, in which the diflTerence would be important.
But I am not aware that the correction affects any of the arguments on which the
rule has thus far been, or will hereafter be, brought to bear ; because, in construiug
the constitution by this rule, " the general system of the laws " must be presumed
to be " the general system of the laws" authorized by the constitution itself, and
not " the general system of the laws " previously prevailing in the country, if the
two systems should happen to differ. The constitution being the supreme law,
anything in the constitutions or laws of the slates to the conlrary notwithstanding,
those constitutions and laws must be construed with reference to it ; instead of its
being consirued with reference lo them, whenever Ihe two may appear to con
flict. Mr. Phillips, however, seems lo think the difference important to this discussion ;
becau.se he says " the general system of the law might refer to the general system
of law, as a science ;" whereas " the general system of the laws clearly relates to
the general spirit of the laws of this nation, which is quite a different thing."
Bul he here assumes the very point in dispute^ viz., that " the general spirit of the
constitutional laws of this nation, (which are, in reality, its only kavs,) are a very
different thing " from " the general system of law, as a science." So far as they
relate to slavery, we claim that all our constitutional laws are perfectly accordant
with " the general system of law, as a science," and this is the question to be
determined. That " the general system of the laws," authorized by the constitution, and
relating lo other subjects than slavery, is, for the mosl part, at least, if not entirely,
accordant with " law, as a science," Mr. Phillips will probably not deny, lyhatever
he may think of those it authorizes in rdalion to slavery. But the rule of the
court forbids that, in the matter of slavery, any construction of the constitution
be adopted, at variance with " the general system of the laws " authorized hy the
constitution, on all other subjects, unless such intention " be expressed with irre»
sistible clearness." " The general system of the laws," authorized by the consti
tution, on all other subjects than slavery, is a very important guide for the inter
pretation of those clauses that have been claimed for slavery. If this guide be
followed, it extinguishes all pretended authority for slavery — instead of supporting
it. as Mr. Phillips' remark would imply.

FIRST RULE. 167
out also some of the other rules laid down in that arguraent. And
hence the necessity of going more fully into the question of inter
pretation. first RULE.
The first rule, in the interpretation of the constitution, as of all
other laws and contracts, is, " that the intention of i'he instrument
must prevail."
The reason of this rule is apparent ; for unless the inten
tion of the instrument prevail, wherefore was the instrument
formed ? or established as law ? If any other intention is to pre
vail over the instrument, the instrument is not the law, but a mere
Sullity. The intentions of a statute or constitution are always either
declared, or presumed.
The declared intentions of a statute or constitution are the
intentions that are clearly expressed in terms in the statute or
constitution itself.
Where the intentions of statutes and constitutions are not clearly
expressed in the instruments themselves, the law always presumes
them. And it always presumes the most just and beneficial inten
tions, which the words of the instruments, taken as a whole, can
fairly be made to express, or imply.
Statutes and constitutions, in which no intentions were declared,
and of which no reasonable intentions could be presumed, would
be of no legal validity. No intentions that might be attributed to
them by mere force of conjecture, and exterior history, could be
legally ascribed to them, or enforced as law.
The intentions, which individuals, in discussions, conversations,
and newspapers, may attribute to statutes and constitutions, are no
part of the instruments themselves. And they are not of the
slightest importance as evidence of their intentions, especially if
they are in opposition, either to the declared, or the presumed, in
tentions of the instruments. If the intentions of statutes and con
stitutions were to be gathered from the talk of the street, there
would be no use in writing thera in terms. The talk cf the street,
and not the written instruments, would constitute the laws. And
the same instrument would be as various and contradictory in its
meanings, as the various conjectures, or assertions, that raight be
heard frora the mouths of individuals ; for one man's conjecture
or assertion would be of as much legal value as another's ; and
effect would therefore have to be given to all, if to any.
14

158 RULES OF INTERPRETATION.
Those who argue for slavery, hold that " the intentions of the
people" must prevail, instead of " the intentions of the instru
ment;'' thus falsely assuming that there is a legal disunction be
tween the intentions of the instrument and the intentions of the
people. Whereas the only object of the instrument is to e-xpress
the intentions of the people. That is the only motive that can be
attributed to the people, for its adoption. The people established
the constitution solely to give written and certain evidence of tkeir
intentions. Having their written instrument, we have their own
testiraony, their own declaration, of what their intentions are.
The intentions of the instrument, then, and the intentions of the
people, are identical. And it is legally a matter of indifferency
which form of expression is used ; for both legally express the
same idea. .
But the same class of persons, who assume a distinction between
the intentions of the instruraent and the intentions of the people,
labor to prove, by evidence extraneous to the instrument, that the
intentions of the people were diflierent from those the instrument
expresses ; and then they infer that the instrument must be warped
and twisted, and made to correspond to these unexpressed intentions
of the people.
The answer to all this chicanery is this. The people, assuming
that they have the right to establish their will as law, have, in
theory, agreed upon an instrument to express their will, or their
intentions. They have thus said that the intentions expressed in
that instrument are their intentions. Also that their intentions,
as expressed in the instrument, shall be the supreme law of the
land. " The people," by thus agreeing that the intentions, expressed
by their joint instrument, shall be the suprerae law of the land,
have virtually and legally contracted with each other, that, for the
sake of having these, their written intentions, carried into effect,
they will severally forego all other intentions, of every name and
nature whatsoever, that conflict with the written ones, in which
they are all agreed.
Now this written instrument, which is, in theory, the voluntary
contract of each and every individual with each and every other,
is the highest legal evidence of their intentions. It is the specific
evidence that is required of all the parties to it. It is the only
evidence that is required, or accepted, of any. It is equally valid
and sufficient, in favor of all, and against all. It is the only

FIRST RULE. 159
evidence that is common to all. The intentions it expresses must,
therefore, stand as the intentions of all, and be carried into effect/
as law, in preference to any contrary intentions, that may have
been separately, individually, and informally expressed by any
one or all the parties on other occasions ; else the contract is
broken. As long as the parties acknowledge the instrument as being their
contract, they are each and all estopped by it from saying that they
have any intentions adverse to it. Its intentions and their inten
tions are identical, else the parties individually contradict them
selves. To acknowledge the contract, and yet disavow its inten
tions, is perfect self-contradiction.
If the parties wish to repudiate the intentions of the instmraent,
they must repudiate or abolish the instrument itself. If they wish
to change the intentions of the instrument, in any one or more
particulars, they raust change its language in those particulars, so
as lo make it express the intentions they desire. But no change
can be wrought by exterior evidence ; because the ivritien instru
ment, to which, and to which only, all have, in theory, agreed,
must always be the highest evidence that the courts can have of
the intentions of the whole people.
If, therefore, the fact were historically well authenticated, that
every man in ihe nation had publicly asserted, within one hour
after the adoption of the constitution, (that is, within one hour
after he had, in theory, agreed to it,) that he did not agree to it
intending that any or all of the principles expressed by the instru
ment should be established as law, all those assertions would not
be of the least legal consequence in the world ; and for the very
sufficient reason, that what they have said in tke i'nstrument is the
law ; and what they have said out of it is no part of it, and has
no legal bearing upon it.
Such assertions, if admitted to be tme, would only prove that
the parties had lied when they agreed to the instrument ; and if
they lied then, they may be lying now. If we cannot believe their
first and formal assertion of their intentions, we cannot believe
their second and informal one.
The parlies cannot claim that they did not understand the lan
guage of the instrument ; for if they did not understand the lan
guage then, when they agreed to it, how can we know that they
understand it now, when they dissent frora it ? Or how can we
know that they so much as understand the very language they are

160 RULES OF INTERPRETATION.
now using in making their denial ? or in expressing their contrary
intentions ?
They cannot claim that they did not understand the r'ules, by
which their language, used in the instrument, would be interpreted ;
for if they did not understand them then, how can we know that
they understand them now ? Or how do we know that they un
derstand the rules, by which their present declarat .ons of their
intentions will be interpreted ?
The consequence is, that every man must be presumed to under
stand a contract to which he agrees, whether ke actually does
understand it or not. He must be presumed to understand the
meaning of its words ; the rules by which its words will be inter
preted I and the intentions, which its words, thus interpreted, ex
press. Otherwise men can never make contracts that will be
binding upon them ; for a man cannot bind himself by a contract
which he is not presumed to understand ; and it can seldom, or
never, be proved whether a man actually does understand his con
tract, or not. If, therefore, at any time, through ignorance, care
lessness, raental reservations, or fraudulent designs, men agree to
instruments that express intentions diff'erent from their own, they
must abide the consequences. The instrument must stand, as
expressing their intentions, and their adverse intentions must fail
of effect.
Every one, therefore, when he agrees to a contract, judges for
himself, and takes his own risk, whether he understands the instru
ment to which he gives his assent. It is plainly impossible to
have constitutions established by contract of the people with each
other on any other principle than this ; for, on any other principle,
it could never be known what the people, as a whole, had agreed
to. If every individual, after he had agreed to a constitution,
could set up his own intentions, his own understandings of
the instrument, or his own mental reservations, in opposition to
the intentions expressed by the instrument itself, the constitution
would be liable to have as many different meanings as there were
different individuals who had agreed to it. And the consequence
would be, that it would have no obligation at all, as a mutual and
binding contract, for, very likely, no two of the whole would have
understood the instrument alike in every particular, .and therefore
no two would have agreed to the same thing.
Each man, therefore, before he agrees to an instrument, must
judge for himself, taking his own risk whether he understands it.

SECOND RULE. 161
After he has agreed to it, he is estopped, by his own instrument,
from denying that his intentions were identical with the intentions
expressed by the instrument.
The constitution of the United States, therefore, until its lan
guage is altered, or the instrument itself abolished, by the people
of the United States, must be taken to express the intentions of
the whole people of the United States, whether it really do ex
press their intentions or not. It is the highest evidence of their
intentions. It is the only evidence which they have all agreed to
furnish of their intentions. All other adverse evidence is, there
fore, legally worthless and inadmissible. The intentions of the
instrument, then, must prevail, as being the intentions of the peo
ple, or the constitution itself is at an end.
SECOND RULE.
The second rule of interpretation is, that " the intention of the
constitution raust be collected from its words."*
This rule is, in reality, nearly synonymous with the preceding
one; and its reason, like that of the other, is apparent; for why
are words used in writing a law, unless it is to be taken for granted

* The Supreme Court of the United States say : " The intention of the instru
ment must prevail ; this intention ¦must be coUected from, its words." — 12 Wheaton,
332. " The intention of the legislature is lo be searched for in the words which the
legislature has employed to convey it." — 7 Cranch, 60.
Sorysays, "We must take it to be true, that the legislature intend precisely
what they say." — 2 Story's Circuit Court Rep., 653.
RulherfoTlh says, " A promise, or a contract, or a will, gives us a right to what
ever the promisor, tlie contractor, or the testator, designed or intended to make ours.
But his design or intention, if it is considered merely as an act of his mind, caimot
be known to any one besides himself. When, therefore, we speak of his design or
intention as the measure of our claim, we must necessarily be understood to mean
the design or intention which he has made known or expressed by some outward
mark ; because, a design or intention which does not appear, can have no more
effect, or can no more produce a claim, than a design or intention which does not
exist. " In like manner, the obligations that are produced by the civil laws of our coun
try arise from the intention of the legislator ; not merely as this intention is an act
of the mind, but as il is declared or expressed by some outward sign or mark,
which makes it known to us. For the intention of the legislator, whilst he keeps
it to himself, produces no effect, and is of no more account, than if he had no such
intention. Where we have no knowledge, we can be under no obligation. We
cannot, therefore, bc obliged to comply with his will, where we do not know what
his will is. And we can no otherwise know what his will is, than by means of
some outward sign or mark, by which this will is expressed or declared." — Rvl-
therforth, B. 2, cliap. 7, p. 307-8.
14*

162 RULES OF INTERPRETATION.
that when written they contain the law ? If more was meant, why
was nat more said ? If less was'meant, why was so much said ? If
the contrary was meant, why was this said, instead ofthe contrary?
To go beyond the words of a law, (including their necessary or
reasonable implications,) in any case, is equivalent to saying that
the written law is incomplete ; that it, in reality, is not a law, but
only a part of one ; and that the remainder was left to be guessed
at, or rather to be made, by the courts.
It is, therefore, a violation of legal rules, to go beyond the words
of a law, (including their necessary or reasonable implications,) in
any case whatever.*
To go contrary to the words of a law, is to abolish the law
itself, by declaring its words lo be false.
But it happens that the same words have such various and
opposite meanings in common use, that there would be no cer
tainty as to the meaning of the laws themselves, unless there were
some rules for determining which one of a word's various meanings
was to be attached to it, when the word was found in a particular
connection. Hence the necessity of rules of interpretation. Their
office is to determine the legal meaning of a word, or, rather, to
select the legal meaning of word, out of all the various meanings
which the word bears in common use. Unless this selection were
made, a word might have two or more different and contradictory
meanings in the same place. Thus the law would be mere jar
gon, instead of being a certain and precise rule of action.
These rules of interpretation have never been specially enacted
by statute, or constitutions, for even a statute or constitution enact
ing thera would be unintelligible or uncertain, until interpreted by
them. They have, therefore, originated in the necessity of the
case ; in the inability of words to express single, definite, and clear
ideas, such as are indispensable to certainty in the law, unless
some one of their several meanings be selected as the legal one.
Men of sense and honesty, who have, never heard of these rules
as legal ones, but who, nevertheless, assume that written laws and
contracts are made for just and reasonable ends, and then judge of

* This rule, that forbids us to go beyond the words of the law, mnst not be
understood as conflicting with the one that allows us, in certain eases, lo go out of
an instrument to find the meaning ofthe words used in the instrument. We may,
in certain eases, (not in all,) and under certain limitations, as will hereafter be
explained, go out of an instrument to find the meaning of its wards; but we cau
never go beyond their meaning, when found.

SECOND RULE. 163
*
their meaning accordingly, unconsciously act upon these rules in
so doing. Their perception of the fact, that unless the meaning
of words were judged of in this manner, words themselves could
not be used for writing laws and contracts, withoui being liable to
be perverted to subserve all manner of injustice, and to defeat the
honest intentions of the parties, forces upon them the conviction,
that the legal meaning of the words must be such, and only such,
as (it will hereafter be seen) these rules place upon them. The
rules, then, are but the dictates of common sense and common
honesty, applied to determining the meaning of laws and con
tracts. And coramon sense and common honesty are all that is
necessary to enable one to judge of the necessity and soundness of
the rules.
Rules of interpretation, then, are as old as the use of words, in
prescribing laws, and making contracts. They are as necessary
for defining the words as the words are for describing the laws
and contracts. The words would be unavailable for writing laws
and contracts, without the aid of the rules for interpreting them.
The rules, then, are as much a part of the language of laws and
contracts as are the words themselves. Their application to the
words of laws and contracts is as much presuraed to be under
stood, by all the parties concerned, as is the meaning of the words
themselves. And courts have no more right to depart from, or
violate, these rules, than to depart from, or contradict, the words
themselves. The people must always be presuraed to understand these rules,
and to have framed all their constitutions, contracts, &c., with
reference to them, as much as they must be presumed to under
stand the common meanings of the words they use, and to have
framed their constitutions and contracts with reference to them.
And why ? Because men's contracts and constitutions would be
no contracts at all, unless there were some rules of interpretation
understood, or agreed upon, for determining which was the legal
meaning of the words employed in forming them. The received
rules of interpretation have been acted upon for ages ;* indeed,
they must have been acted upon through all time, since men first
attempted to make honest contracts with each other. As no other
rules than the.se received ones can be presumed against the par
ties, and as tkese are the only ones that can secure men's honest

* Kent says, these rules " have been accumulated by the experience, and ratified
ky the approbation, of ages." — 1 Kent, 461.

164 RULES OF INTERPRETATION.
rights, under their honest contracts; and, as everybody is bound
to know that courts must be governed by fixed rules, applying the
sarae to all contracts whatsoever, it must always be presumed, in
each particular case, that the parties intended tbeir instruments
should be construed by the same rules by which the courts con
strue all others.
Another reason why the people must be presumed to know
these rules, at least in their application to cases where a question
of right and wrong is involved, is, that the rules are but a transcript
of a common principle of morality, to wit, the principle which
requires us to attribute good motives and good designs to all the
words and actions of our fellow-men, that can reasonably bear sucb
a construction. This is a rule by which every man claims that
his own words and actions should be judged. It is also a princi
ple of law, as well as of morals, and one, too, of which every
man who is tried for an offence claims the benefit. And the law
accords it to him. So long as there be so much as " a reasonable
doubt " whether his words or actions evince a criminal intent, the
law presumes a good intent, and gives him the benefit of it. Why
should not the same rule be observed, in inferring the intent of the
whole community', from the language of their laws and constitu
tions, which is observed in inferring the intent of each individual
of that community from his language and conduct ? It should
clearly require as strong proof to convict tbe whole community of
a crirae, (and an unjust law or constitution is one of the highest
of all possible crimes,) as it does to convict a single individuaL
The principle, then, is the same in both cases ; and the practice of
those who infer a bad intent from the language of the constitution,
so long as the language itself admits of a reasonable doubt
whether such be ils intent, goes the length of overthrowing an
universally recognized principle of law, on which the security
of every accused person is liable to depend.*
For these, and perhaps other reasons, the people are presumed

* Vattel says, " The interpretation of every act, and of every treaty, ought to be
made according to certain rules proper to determine the sense of them, such as the
parties concerned must naturally have understood when the act was prepared and
accepted. " As these rules are foundetl on right reason, and are consequently approved and
prescribed by the law of nature, every man, every sovereign, is obliged to admit
and follow them. If princes were to acknowledge no rules that determined tha
sense in which the expressions ought lo be taken, treaties would be only empty
words ; nothing couia be agreed upon with security, aud it would be almost ridic
ulous to place any dependence on the effect f conventions."  Vattd B 2 duat
17, sec. 268. ' ¦ ' ^^'

THIRD RULE. 165
to understand the reason and justice of these rules, and therefore,
to understand that their contracts will be construed by them. If,
therefore, men ever frame constitutions or contracts wilh the in
tention that they shall be construed conlrarily to these rules, their
intention raust be defeated ; and for the same reason thai they
would have to be defeated if they had used words in a directly
opposite sense to the coraraon ones, such, for exaraple, as using
white when they meant black, or black when they meant white.
For the sake of having a case for the rules to apply to, we will
take the representative clause, embracing the word " free," (Art. 1,
sec. 2,) which is the first and the strongest of all the clauses in the
constitution that have been claimed as recognizing and sanction
ing slavery. Indeed, unless this clause do recognize and sanction
it, nobody would pretend that either of the other clauses do so.
The same rules, if any, that prevent the representative clause and
the word " free " from having any legal reference to slavery, will
also have the same effect upon the other clauses. If, therefore,
the argument for slavery, based upon the word " free," falls to the
ground, the arguments based upon the words " importation of
persons," " service and labor," &c., must also fall ; for they can
stand, if at all, only by raeans of the support they obtain from the
argument drawn from the word " free."
THIRD RULE.
A third rule is, that we are always, if possible, to give a word
sorae meaning appropriate to the subject matter of the instrument
itself.* This rule is indispensable, to prevent an instrument from degen
erating into absurdity and nonsense.
In conformity with this rule, words which purport to describe
certain classes of persons existing under the constitution, must be
taken in a sense that will aptly describe such persons as were
actually to exist under it, and not in a sense that will only describe
those who were to have no existence under it.
It would, for instance, be absurd for the constitution to provide
dial, in every ten years, there should be " added to the whole num-
* Blackstone says, " As to the subject matter, words are always to be understood
»s having regard thereto." — 1 Blackstone, 60.
" We ought always to give lo expressions the sense most suitable to the subject,
or to the matter, to which they relate." — Vattel, B. 2., chap. 17, sec. 230.
Other authorities on this point are given in the note at the end of this chapter.

166 RULES OF INTERPRETATION.
ber of free persons three fifths of all other persons," if there were
really to be no other persons than the free.
If, therefore, a sense correlative vnth slavery were given to the
word free, it would make the word inappropriate to the subject
matter of the constitution, unless tkere were really to be slaves under
the constitution.
It is, therefore, inadmissible to say tbat the word free is used in
the constitution as the correlative of slaves, until it be first proved
chat tkere were to be slaves under tke constitution.
We must find out what classes of persons were to exist under
the constitution, before we can know what classes of persons the
terms used in the constitution apply to.
If the word /ree had but one meaning, we might 'miei,from tke
word itself, that such persons as that word would necessarily de
scribe were to exist under the constitution. But since the word
has various meanings, we can draw no certain inference from it
alone, as to the class of persons to whom it is applied. We must,
therefore, fix its meaning in the constitution, by ascertaining, yVoOT
other parts of the instrument, what kind of "free persons," and
also what kind of " other persons," were really to exist under the
constitution. Until this is done, we cannot know the meaning of
the word free, as it is used in the constitution.
Those who say that the word /ree is used, in the constitution,
in a sense correlative wilh slavery, assume the very point in dis
pute ; viz., that there were to be slaves under tbe constitution.
This is the point to be proved, and cannot be assumed. And until
it be proved, it is making nonsense of the constitution, to say that
the word /ree is used as the correlative of slavery.
There is no language in the constitution, that expressly declares-,
or necessarily implies, that slavery was to exist under the consti
tution. To say, therefore, that the word free was used as the
correlative of slaves, is begging the question that there were to be
slaves ; it is assuming tbe whole ground in dispute. Those who
argue for slavery, raust first prove, by language that can mean
nothing less, that slavery was to be permitted under the constitu
tion. Tken they may be allowed to infer that the word free is
used as its correlative. But until then, a different meaning must
be given to the word, else the clause before cited is converted into
nonsense. On the other hand, in giving the word free the sense common
at that day, to wit, a sense correlative with persons not naturalized,

THIRD RULE. 167
and not possessed of equal political privileges with others, we
assurae the existence of no class of persons except those whom
the constitution itself especially recognizes, to wit, those possessing
full political rights, as citizens, or merabers of the state, and those
unnaturalized persons vvho will not possess full political rights.
The constitution e-^cplicitly recognizes these two classes, because it
makes a distinction betvi-een them in the matter of eligibility to
certain offices, and it also explicitly authorizes Congress to pass
laws for the naturalization of those who do not possess full rights
as citizens.
If, then, we take the word free in the sense correlative wilh
unnaturalized persons, the word has a meaning that is already
appropTiale to the subject matter of the instrument, and requires
no illegal assumptions to make it so.
On the other hand, if we use the word in the sense correlative
with slaves, we eitber make nonsense of the language of the con
stitution, or else we assume the very point in dispute, viz., that
there were to be slaves under the constitution; neither of which
have we any right to do.
This arguraent is sufficient, of itself, to overthrow all the Argu
ments that were ever made in favor of the constitutionality 'of
slavery. Substantially the whole argument of the advocates of slavery is
founded on the assumption of the very fact in dispute, viz., that
there was to be slavery under the constitution. Not being able to
prove, by the words of the constitution, that there was to be any
slavery under it, they assume that there was to be slavery, and
then use that assumption to prove the raeaning of the constitution
itself. In other words, not being able to prove slavery by the
constitution, they atterapt to prove the meaning of the constitution
by slavery. Their whole reasoning on this point is fallacious,
simply hecause the legality of slavery, under the constitution, it
itself a thing to be proved, and cannot be assumed.
The advocates of slavery cannot avoid this dilemma, by saying
that slavery existed at the time the constitution was adopted ; for
many things existed 'at the tirae, such as theft, robbery, piracy, &c.,
which were not therefore to be legalized by the constitution. And
slavery had no better constitutional or legal existence than either
of these criraes.
Besides, even if slavery had been legalized (as it was not) by
anv of the then existing state constitutions, its case would have

l68 RULES OF INTERPRETATION.
Deen no letter; for the United States constitution was to be the
supreme law of the land, anytking in tke constitution or laws of
any state to the contrary notwithstanding. The constitution
being the supreme law, operating directly upon the people, and
securing to them certain rights, it necessarily annulled everything
/hat might be found in the state constitutions that was inconsistent
with the freedom of the people to enjoy those rights. It of course
would have annulled the legality of slavery, if slavery had then
had any legal existence ; because a slave cannot enjoy the rights
secured by the United States constitution.
Further. The constitution is a political instrument, treating of
men's political rights and privileges. Its terms must therefore he
taken in their political sense, in order to be appropriate to the sub
ject matter of the instrument. The word free, in its political
sense, appropriately describes men's political rank as free and
equal members of the state, entitled, of right, to the protection of
the laws. On the other hand, the word free, in the sense correla
tive with slavery, has no appropriateness to the subject matter of
such an instrument — and why? Because slavery is not, ef itself,
a political relation, or a political institution ; although political
institutions may, and sometimes do, recognize and legalize it.
But, qf itself, it is a raerely private relation between one man and
another, created by individual force, and not by political authority.
Thus a strong man beats a weaker one, until the latter will obey
him. This is slavery, and the whole of it ; unless it be specialli/
legalized. The United States constitution does not specially legal
ize it ; and therefore slavery is no part of the subject -matter oi that
instrument. The word free, therefore, in the constitution, cannot
be said to be used as the correlative of slavery ; because that sense
would be entirely inappropriate to anything tbat is the subject
matter of the instrument. It would be a sense which no oOier
part of the constitution gives any occasion or authority for.
FOURTH RULE.
A fourth rule is, that where technical words are used, a techni
cal meaning is to be attributed to them.
This rule is commonly laid down in the above general terms.
It is, however, subject to tbese exceptions, viz., that where the
technical sense would be inconsistent witb, or less favorable to
iustice, or not consonant to the context, or not appropriate to the
nature of the subject, some other meaning may be adopted. Sub-

FOURTH RULE. 169
]ect to these exceptions, the rule is of great authority, for reasons
that will hereafter appear.
Thus, in commercial contracts, the terms and phrases used in
them are to be taken in the technical or professional sense comraon
among merchants, if that sense be consonant to the context, and
appropriate lo the nature of the contracts.
Iq political contracts, the terms and phrases used in them are
to be taken in the political and technical sense common in such
instruments, if that sense be consonant to the context, and appro
priate to the subject raatter of the contracts.
'Terms common and proper to express political rights, relations,
and duties, are of course to be taken in the technical sense natural
and appropriate to those rights, relations, and duties.
Thus, in political papers, such terras as liberty, allegiance, repre
sentation, citizenship, citizens, denizens, freemen, free subjects, free-
born subjects, inhabitants, residents, people, aliens, allies, enemies,
are all to be understood in the technical sense appropriate to the
subject matter of the instrument, unless there be something else, in
the instrument itself, that shows that sorae other meaning is intended.
Terms which, by common usage, are properly descriptive of the
parties to, or members of, the compact, as distinguished from oth
ers, are to be taken in the technical sense, which describes them,
as distinguished from others, unless there be, in the instrument
itself, sorae unequivocal evidence that they are to be taken in a
different sense.
The authority" of this rule is so well founded in nature, reason,
and usage, that it is alraost strange that it should be questioned.
It is a rule which everybody, by their common practice, .adimh to
be correct ; for everybody more naturally understands a word in
ils technical sense than in any other, unless that sense be incon
sistent with the context.
Nevertheless, an attempt has been made by some persons to
deny the rule, and to lay down a contrary one, to wit, that where
a word has what they choose to call a cotnmon or popular meaning,
and also a technical one, the former is to be preferred, unless there
be something, in other parts of the instrument, that indicates that
the technical one should be adopted.
The argument for slavery virtually claims, not only that this so
called common and popular meaning of a word, (and especially
of the word " free,") is to be preferred to the technical one, but
also that this simple preference is of sufficient consequence to out-
15

170 RULES OF INTERPRETATION.
weigh all considerations of justice and injustice, and indeed all,
or neariy all, the other considerations on v/hich legal rules of
interpretation are founded. Nevertheless I am not aware that the
advocates of slavery have ever had the good fortune to find a
single instance where a court has laid it down, as a rule, that any
other meaning is, of itself preferable to tbe technical one ; much
less that that preference was sufficient, in cases where right and
wrong were involved, to turn the scale in favor of the wrong.
And if a court were to lay down such a rule, every one is at liberty
to judge for himself of its soundness.
But inasmuch as this pretended rule is one of the main pillars,
if not the main pillar, in support of the constitutionality of slavery,
it is entitled to particular consideration.
The falsehood of this pretended rule will be evident when it is
considered that it assumes that the technical meaning of a word is
not the coramon and popular one ; whereas it is the very common
ness, approaching to uniformity, with which a word is used in a
particular sense, in relation to particular things, that makes it
technical.* A technical word is a word, which in one profession, art, or
trade, or in reference to particular subjects, is generally, or uni
formly, used in a particular sense, and that sense a soraewhat
different one from those in which it is generally used out of that
profession, art, or trade, or in reference to other subjects.
There probably is not a trade that has not its technical words.
Even the cobbler has his. His ends are generally quite different
things from the ends of other people. If we hear a cobbler speak
oi his ends, we naturally suppose he means the ends of his threads,
because he has such frequent occasion to speak of and use them.
If we hear other people speak of their ends, we naturally suppose
that they mean the objects they have in view. With the cobbler,
then, ends is a technical word, because he frequently or generally
uses tbe word in a different sense frora that in which it is used tiy
other people.
Mechanics have very many technical words, as, for instance, to
describe particular machines, parts of machines, particular processes

* It was, for example, the commonness, or rather the uniformity, wilh which the
word "free" had been used — up to tlie time the constitution was adopted — to
describe persons possessed of political and other legal franchises, as distinguished
from persons not possessed of the same franchises, that made the word " free " a
technical one in the law.

FOURTH RULE. 17J
of labor, and particular articles of manufacture. And when wa
hear a mechanic use one of these words, we naturally suppose
that he uses it in a technical sense — that is, with reference to his
particular eraployment, machinery, or production. And why do
we suppose this ? Simply because it is more common for him to
use the word in that sense than in any other, especially if he is
talking of anything in regard lo which that sense would be
appropriate. If, however, his talk is about some other subject, in
relation to which the technical sense of the word would not be
appropriate, then we conclude that he uses it, not in the technical
sense appropriate to his art, but in some other sense more appro
priate to the subject-on which he is speaking.
So, if we were to hear a banker speak of " the days of grace
having expired," we should naturally attach a very different
nleaning to the words from what we should if we were lo hear
thera from the pulpit. We should suppose, of course, that he used
them in the technical sense appropriate to his business, and that
he had reference only to a promissory note that had not beeu paid
when due.
If we were to hear a banker speak of a check, we should suppose
he used the word in a technical sense, and inlended only an order
for money, and not a slop, hindrance, or restraint.
So, if one farmer were to say of another. He is a good husband,
we should naturally infer that he used the word husband in the
technical sense appropriate to his occupation, meaning that he cul
tivated and managed his farm judiciously. On the olher hand, if
we were to hear lawyers, legislators, or judges, talking of hus
bands, we should infer that the word was used only in reference to
men's legal relations to their wives. The word would be uSed in
a technical sense in both cases.
So, if we were to hear a man called a Catholic priest, we should
naturally infer that the word Catholic was used in its technical
sense, that is, to describe a priest of the Catholic persuasion, and
not a priest of a catholic, liberal, and tolerant spirit.
These examples raight be multiplied indefinitely. But it will
be seen from those already given that, so far from the technical
sense and the comraon sense of words being opposed lo each other,
the technical sense is itself the common sense in wkich a word is
used witk reference to particular subjects.
These examples also show how perfectly natural, instead of un
natural, it is for us to attribute the technical meaning to a word.

172 RULES OF INTERPRETATION.
whenever we are talking of a subject in relation to which that
meaning is appropriate.
Almost every word of substantive importance, that is of frequent
use in the law, is used in a technical sense — that is, in a sense
having some special relation either to natural justice, or to men's
rights or privileges under the laws.
The word liberty, for instance, has a technical meaning in the
law. It means, noi freedom from all restraint, or obligation ; not
a liberty to trespass with impunity upon other raen's rights ; but
only that degree of liberty which, of natural right, belongs to a
man ; in other words, the greatest degree of liberty that he can
exercise, without invading or immediately endangering the rights
of others.
Unless nearly all words had a technical meaning in the law, it
would be impossible to describe laws by words ; because words
have a great variety of raeanings in coraraon use ; whereas tke law
demands certainty and precision. We must know the precise
meaning of a word, before we can know what the law is. And
the technical meaning of a word is nothing more than a precise
meaning, that is appropriate, and coramonly applied, to a particular
subject, or class of subjects.
How would it be possible, for instance, to have laws against
murder, unless the word murder, or some other word, were under
stood, in a technical sense, to describe that particular mode of kill
ing which the law wishes to prohibit, and which is morally and
legally distinguishable from all other modes of killing ?
So indispensable are precision and certainty, as to the meaning
of words used in laws, that where a word has not a technical
raeaning already known, the legislature frequently define the
meaning they intend it shall bear in particular laws. Where this
is not done, the cmirts have to give it a precise and definite mean
ing, before the law can be adrainistered ; and this precise meaning
they have to conjecture, by reference to the context, and to the
presumed object of all laws, justice.
What perfect chaos would be introduced into all our existing
laws and contracts, if the technical meanings of all tbe words used
in them were obliterated from our minds. A very large portion
of the laws and contracts themselves would be substantially abol
ished, because all certainty as to their meaning would be extin
guished. Suppose, for instance, the technical meanings of liberty,
trial by jury, habeas corpus, grand jury, petit jury, murder, rape

FOURTH RULE. 173
arson, theft, indictment, trial, oath, testiraony, witness, court,
verdict, judgment, execution, debt, dollar, bushel, yard, foot, cord,
acre, rod, pound, check, draft, order, administrator, executor, guar
dian, apprentice, copartner, company, husband, wife, marriage,
lands, goods, real estate, personal estate, highway, citizen, alien,
subject, and an almost indefinite number of other words, as they
now stand in our laws and contracts, were at once erased frora our
minds, and the legal meanings of the same words could only be
conjectured by the courts and people from the context, and such
other circumstances as might afford grounds for conjecture. Sup
pose all this, and where would be our existing laws and contracts,
and the rights dependent upon them ? We might nearly as well
throw our statute-books, and all our deeds, notes, and other con
tracts, into the fire, as to strike out the technical meanings of the
words in which they are writlen. Yet for the courts to disregard
these technical meanings, is the same thing as to strike them out
of existence.
If all our constitutions, state and national, were to be annulled
at a blow, with all the statutes passed in pursuance of them, it
would hardly create greater confusion as to men's rights, than
would be created by striking out from men's rainds all knowledge
of the technical raeanings of the words now used in writing laws
and contracts. And the reconstruction of the governments, after
such an abolition of them, would be a much less labor tban the
reconstruction of a legal language, in which laws and contracts
could be written wilh the same conciseness and certainty as now.
The former would be the work of years, the latter of centuries.
The foregoing considerations show in what ignorance and folly
are founded the objections to the technical meanings of words used
in the laws.
The real difference between the technical meaning of a word,
and any other meaning, is just the difference between a meaning
that is common, certain, and precise, and one that is, at best, less
common, less certain, and less precise, and perhaps neither com
mon, certain, nor precise.
The authorities in favor of the technical meaning, are given in
the note, and are worthy of particular attention.*
* " Terms of art, or technical terms, must be taken according to the acceptation
of the learned in each art, trade, and science." — 1 Blackstone, 59.
" When technical words are used, they are to he understood in their technical
seuse and meaning, unless the contrary clearly appears." — 9 Pickering, 514.
" The words of a statute are to be taken in their natural and ordinary significa-
15*

174 RULES OF INTERPRETATION.
The arguraent, and the whole arguraent, so far as I know, in
favor of what is called the coramon or popular meaning, is, that
that meaning is supposed to be belter known by the people, and
therefore it is more probable they would use it, than the other.
tion and import ; and if technical words are used, they are to be taken in a tech
nical sense." — ! Kent, 461.
Lord Ellenborough says, " An agreement is to be construed according to. ils
sense and meaning, as collected in the first place from the terms used in it, which
terms are themselves to be understood iu their plain, ordinary, and popular sense,
unless they have generally, in respect to the subject mailer, as by the known usage
of trade or tlie like, acquired a peculiar sense, distinct from the popular sense of
the same words ; or unless the context evidently points out thai th.ey must, in the
particular instance, and in order to effect the immediate intention of the parties to
that contract, be understood in some other special and peculiar sense. " — 4 East,
135 ; cited in Chilly on Contracts, 80.
Chilly adds, " The same rule applies to the construction of acts of parliament,"
and cites several authorities.
" In the enactment of laws, when terms of art, or peculiar phrases, are made use
of, it must he supposed that the legislature have in view the subject matier about
which such terms or phrases are commonly employed." — 1 Pickering, 261.
"If a statute make use of a word, the meaning of which is well known at the
common law, the word shall be understood in tbe same sense it was understood at
the common law." — Bacon's Abridg. Stat., I., 29.
" Technical terms, or terms proper to the arts and sciences, ought commonly to
be interpreted according to the definition given of them by the masters of the art,
the person versed in the knowledge of the art or science to which the term belongs.
I say commonly ; for this rule is not so absolute, that we cannot, or even ought
not, to deviate from it, when we have good reasons to do it ; as, for instance, if it
was proved that he who speaks in a treaty, or in any olher public piece, did not
understand the art or science from which he borrowed the term, that he knows not
its force as a technical word; that he has employed il in a vulgar sense, Slc." —
Vattel, B. 2, eh. 17, sec. 276.
" In things favorable," (" things favorable " he defines to mean " things useful
and salutary to human society,") " the terms of art ought to be taken in the fullest
extent they are capable of ; not only according to common use, bul also as technical
terms, if he who speaks understands the art lo which those terms belong, or if he
conducts himself by the advice of men who understand that art.
" But we ought not from this single reason, that a thing is favorable, to take the
terms in an improper signification ; this is only allowable to be done, lo avoid
absurdity, injustice, or the nullity of the act, as is practised on eveiy subject. Por
we ought to lake the terms of an act in their proper sense, conformable lo custom,
at least, if we have not very strong reasons for deviating from it." — Vattel, B. 2,
ch. 17, sec. 307.
" Where technical words are used, the technical meaning is to be applied to them,
unless it is repelled by the context. But the same word often possesses a technical and
t common sense. In such a case the latter is lo be preferred, unless some attend
ant circumstance points clearly to the former." — 1 Story's Comm. on Const., 433.
It will be observed that every one of these authorities, excepi the single one
from Story, gives the preference to the technical meaning, over any of the other
meanings which a word may have. Tlie laltpr branch of Story's rule gives the
preference to the olher meaning over the technical one.
Admitting, for the sake of the argument, that the latter branch of Story's rule is

FOURTH RULE. 175
But this argument, if not wholly false, is very shallow and friv
olous ; for everybody is presumed to know the laws, and therefore
they are presumed to be farailiar with the technical raeanings of
all the technical words that are of frequent use in writing the laws.
correct, still the meaning of the word " free," in the constitution, is not therebj
altered ; because his rule admits that if " some attendant circumstance points
clearly lo the technical meaning," that meaning is to be adopted. Now every
"attendant circumstance" that cau legally be taken into consideration, "points
clearly to the technical meaning " — and why ? Because that meaning alone is
consistent wilh justice, appropriate to the subject matter of the instrument, con
sistent with the idea that all the parties to the instrument could have reasonably
agreed to it, (an essential point, as will hereafter be seen,) consistent with all the
general provisions of the instrument. If the other meaning be adopted, all the
general provisions of the instrument are either contradicted outright, or have to be
taken subject to limitations and exceptions which are nowhere expressed, and
which would not only exclude one sixth of " the people of the United States " frora
the operation of the constitution, established in their name, and for their benefit,
but would actually sanction the greatest wrongs against them.
The result, then, is, not merely that " so^me attendant circumstance," (although
the rule admits that that would be sufficient to turn the scale,) but that every attend
ant circumstance, points to the technical meaning as the true one.
There is, also, in the sarne clause wilh the word " free," one attendant circum
stance which points clearly to the technical meaning ; and that is, that " all other
persons " than the free, are lo be represented and taxed as three fifths units. Now
there is no propriety in representing or taxing slaves at all, as persons ; but there
is a special propriety in representing and taxing aliens as three fifths units, as will
more fully appear hereafter.
But, in point of fact. Story's rule destroys itself, for the two branches of it flatly
contradict each other. T\\% first branch says, that "where technical words are
used, the technical meaning is to be applied to them, unless it is repeUed by the
context." The second branch says, that " the same word oflen possesses a tech
nical afld a common sense. In such case the latter is to be preferred, unless
some attendant circumstance points clearly to the former."
It might be thought, on a careless reading of this rule, that there was no contra
diction in it ; that the first branch of it referred to a case where a word had only
one meaning, and that a technical one ; and that the latter branch referred to a case
where a word had two or more meanings. But, in reality, there is probably not a
single, technical word in the language, that has not one or more other meanings
beside the technical one ; and it .seems impossible there should he such a word,
because the very meaning of a technical word is a word which, in one profession,
art, or trade, is used in a somewhat different sense from whal il is out of that pro
fession, art, or trade. But he this as it may, it is evident that the first branch of
the rule as much refers to a word having two meanings, as does the latter branch
of it ; for it says " the technical meaning is to be applied, unless it be repelled by
the context." Whal is the inference from this proviso ? Why, plainly, that if
the technical meaning "be repelled by the context," the other meaning is lo be
adopted. This of course implies that the word has another meaning^, vhich maj
be adopted if the context require it.
If, then, there are two meanings to the words in each case, the two branches of
this rule flatly contradict each other.
The first branch of the rule is given by Story, and is sustained by all the other

176 RULES OF INTERPRETATION.
And this presuraption of law corresponds with the general fact.
The mass of the people, who are not learned in the law, but who
nevertheless have general ideas of legal matters, naturally under
stand the words of the laws in their legal senses, and attach their
legal senses to them wiihout being aware that the legal sense is a
technical one. They have been in the habit of thinking that the
technical meaning of words was somelhing dark and recondite, (sim
ply because some few technical terras are in another language than
the English,) when in reality they themselves are continually using
a great variety of words, indeed, almost all important words, in a
technical or legal sense, whenever they are talking of legal matters.
But whether the advocates of slavery can, or cannot, reconcile
themselves to the technical meaning of the word " free," they can
not, on their own construction of the constitution, avoid giving the
word a precise and technical sense, to wit, as the correlative of
slavery, as distinguished- from all other forms of restraint and
servitude.

authorities cited. The second branch is Story's own, sustained by nobody. The
reader will judge which is sustained by reason.
But, in truth, Story has himself laid down the true rule more accurately in
anoiher place, as follows :
" Where the words admit of two senses, each of which is conformable lo common
usage, that sense is to be adopted which, without departing from the literal import
of the words, best harmonizes with the nature and objects, the scope and design,
ofthe instrument." — 1 Comm. on Const., 337.
One other authority, which has fallen under my eye, ought to be noticed, lest it
be misunderstood. It is this :
"The language of a statute is not to be construed according to technical rules,
unless such be the apparent meaning of the legislature." — 14 Mass. Rep., 92.
This language, taken independently of the context, would convey the idea that
the adoption of the technical meaning was a matter of indifference ; or perhaps
even that another meaning was rather to be preferred lo the technical one.
But it will be seen, on examining the report from which this extract is taken,
that the court did not at all intend to deny, but on the contrary to admit, that the
general rule was, that the technical meaning was to be preferred ; and that they
only intended to assert that the rule in favor of the technical meaning was not so
imperative that it could not be departed from in a case where " manifest justice "
would be promoted by the departure j for they plead, as a justification for depart
ing from Ihe technical meaning, that in that particular case, " manifest justice "
will be subserved hy a different construction.
Thus have been presented all the authorities on this point, that happen now to
be within my knowledge. Many more ofthe same kind might doubtless be found.
I am aware of no contrary one, unless the single one cited from Story be so es
teemed. The conclusion, both from reason and authority, evidently is, that the technical
meaning is the preferable one in all cases, except where justice, or some other legal
object, WiU be promoted by adopting some olher.

FOURTH RULE. 177
The word slaves, if it had been used in the constitution, (instead
t)f the words " all other persons,") would have itself been held to
be used in a technical sense, to wit, to designate those persons who
were held as chattels, as distinguished from serfs, villeins, appren
tices, servants for years, persons under twenty-one years of age,
prisoners of war, prisoners for debt, prisoners for crime, soldiers,
sailors, &c., &c. The word slaves, then, being technical, the word
free must necessarily have been taken in a technical sense, to wit,
as the precise correlative of diattel slaves, and not as the correlative
of persons held under any of these other forms of restraint or servi
tude. So that on the score of technicality, (even if that were an
objection,) nothing would be gained by adopting the sense correla
tive with slaves.
But it is a wholly erroneous assumption that the use of the word
"free," in a sense correlative with slaves, was either a common or
popular use of ihe icord. It was neither common nor popular, if
we may judge of that lime by the present ; for now such a use of
it is seldom or never heard, unless made with special reference to
the classification which it is assumed that the constitution has
established on that point.
The common and popular classification of the people of this
country, with reference to slavery, is by the terms, ivhite, free col
ored, and slaves. We do not describe anybody as free, except the
free colored. The term white carries with it the idea of liberty ;
and it is nearly or quite universally used in describing the white
people ofthe South, as distinguished from the slaves.
But it will be said by the advocates of slavery, that the term
Tokite was not used in the constitution, because it would not include
all the free ; that the terra free was used in order to include both
white and free colored. But this assertion is but another wholly
gratuitous assumption of the facts, that there were to be slaves
under the constitution, and that representation and taxation were
to be based on the distinction- between the slaves and the free ; both
of which points are to be proved, not assuraed.
If there were to be slaves under the constitution, and if repre
sentation and taxation were to be based upon the distinction between
the slaves and the free, then the constitution undoubtedly used the
word free, instead ni white, in order to include both the white tmd
free colored in the class of units. But if, as we are bound to pre
sume until the contrary is~proved, there were to be no slaves under
the constitution, or if representation and taxation were not founded

178 RULES OP INTERPRETATION.
on the distinction between them and the free, then the constitntion
did not use the word /ree for such a purpose. The burden is upon
the advocates of slavery to prove, first, that there were to be slaves
under the constitution, and, secondly, that representation and taxa
tion were to be based on the distinction between them and the free,
before they can say that the word free was used for the purpose of
including the white and free colored.
Now the whole argument, or rather assertion, which the advo
cates of slavery can offer in support of these points, which they are
necessitated to prove, is, that the word free is commonly and pop
ularly used as the correlative of slaves. That argument, or asser
tion, is answered by the fact that the word /ree is not commonly or
popularly used as the correlative of slaves ; that the terms white
and free colored are the common terms of distinction between the
free and the slaves. Now these last named facts, and the argu
ment resulting from them, are not met at all, by saying that if
there were to be slaves, and if representation and taxation were to
be based on the distinction between thera and the free, the word
free would then have been used, in preference to any other, in
order to include the free colored in the same class wilh the whites-
It raust first be proved that there were to be slaves under the
constitution, and that representation and taxation were to be based
on the distinction between thera and the free, before it can be said
that the word free was used in order to include both white and free
colored. Those points not being proved, the allegation, founded
on the assuraption of them, is good for nothing.
The use of the word free, then, in a sense correlative with
slavery, not being the common and popular use of the word at the
time the constitution was adopted, all the argument, founded on
that assumption, falls to the ground.
On the other hand, the use of the word /ree, in a political sense,
as correlative either with aliens, or with persons not possessed of
equal political privileges with others, was the universal meaning
ofthe word, in all documents of a fundamental and constitutional
character, up to the time when the constitution of the United States
was adopted — (that is, when it was used, as it is in the United
States constitution, to describe one person, as distinguished from
another living under the same government.) Such was the mean
ing of the word in the colonial charters, in several of the State
constitutions existing in 1789, and in the articles of confederation
Furthermore, it vvas a term that had very recently been in common

FOURTH RULE. 179
use in political discussions, and had thus been made perfectly
familiar to the people. For e.xample, the discussions immediately
preceding the revolution, had all, or nearly all, turned upon the
rights of the colonists, as "free British subjects." In fact, the
political meaning of the word /ree was probably as familiar to the
people of that day as the meaning of the word citizen is now ;
perhaps, indeed, raore so, for there is some controversy as to the
legal meaning of the word citizen. So that all the argument
against the technical sense of the term, on the ground of its not
being the common sense, is founded in sheer ignorance or fraud.*
Finally ; unless the word free be taken in the technical sense
comraon at that day, it is wholly an unsettled matier what sense
should be given to it, in the constitution. The advocates of slav
ery take it for granted that, if it be not taken in its common and
technical sense, it must be taken in the sense correlative with slav
ery. But that is all gratuitous. There are many kinds of free
dom besides freedom from chattel slavery ; and many kinds of
restraint besides chattel slavery ; restraints, loo, more legitimate
in their nature, and better legitimated under the laws then exist
ing, than slavery. And it may require a great deal raore argument
than some persons imagine, to settle the meaning of the word/?-ee,
as used in the constitution, if its technical raeaning be discarded.
I repeat, it is a wholly gratuitous assumption that, if the techni
cal meaning of the word free be discarded, the sense correlative
with slavery must be adopted. The word "free" in its common
and popular sense, does not at all imply, as its correlative, either
property in man, or even involuntary service or labor. It, there
fore, does not imply slavery. It implies, as its correlative, simply
restraint. It is, of itself, wholly indefinite as to the kind of
restraint implied. It is used as the correlative of all kinds of
restraint, imprisonment, compulsion, and disability, to which man
kind arS liable. Nothing, therefore, can be inferred from the worn
alone, as to the particular kind of restraint iraplied, in any case.
It is indispensable to know the subject matter, about which the
word is used, in order to know the kind of restraint implied. And
* Vattel says, " Languages vary incessantly, and the signification and force of
words change with time. When an ancient act is to be interpreted, we should
know the common use of the terms at the lime when it was written." —B. 2, ch.
17, sec. 272.
He also says, " In the interpretation of treaties, pacts, and promises, we ought
iiot to deviate from the common use of language, at least, if we have not very strong
reasons fpr it." — Same sec.

180 RULES OF INTERPRETATION.
if the word had had no technical meaning appropriate to the sub-
ject matter of the constitution, and if no other part of the constitu
tion had given us any light as to the sense of the word m the
representative clause, we should have been obliged to conjecture its
correlative. And slavery is one of the last correlatives that we
should have been at liberty to adopt. In fact, we should have
been obliged to let the implication remain inoperative for ambi
guity, and to have counted all raen as " free," (for reasons given
under rule seventh,) rather than have adopted slavery as its cor
relative.

FIFTH RULE.
A fifth rule of interpretation is, that the sense of every word,
that is ambiguous in itself, must, if possible, be determined by
reference to the rest of the instrument.
The iraportance of this rule will be seen, when it is considered
that the only alternatives lo it are, that we must go out of the
instrument, and resort to conjecture, for the meaning of ambiguous
words. The rule is an universal one among courts, and the reasons of
it are as follows : —
Yat.tel says, " If he who has expressed himself in an obscure or
equivocal manner, has spoken elsewhere more clearly on the sarae
subject, he is the best interpreter of himself. We ought to interpret
his obscure and vague expressions, in such a manner, that they may
agree with those terms that are clear and without ambiguity,
which he has used elsewhere, either in the same treaty, or in some
other ofthe like kind. In fact, while we have no proof that a man
has changed his mind, or manner of thinking, it is presumed that
his thoughts have been the same on the same occasions ; so that
if he has anywhere clearly shown his intention, with respect to
anything, we ought to give the same sense to what he has else
where said obscurely on the same affair." — B. 2, ch. 17, sec.
284. Also ; " Frequently, in order to abridge, people express imper
fectly, and with some obscurity, what they suppose is sufficiently
elucidated by the things that preceded it, or even what they pro
pose to explain afterwards; and, besides, the expressions have a
force, and sometimes even an entirely different signification, ac
cording to the occasion, their connection, and their relation toother
words. The connection and train of the discourse is also another
source of interpretation. We ought to co7isider the whole discourse
together, in order perfectly to conceive tlie sense of it, and to give
to each, expression, not so much the signification it may receive in

FIFTH BJJLE. 181
rtself, as that it ought to kave from the thread arid spirit of the
discourse. This is the raaxim of the Roman law : Incivile est, nisi
tota lege perspecta una aliqua particula e.fus proposita, judicare,
vel respondere." (ll is improper lo judge of, or answer to, any
one thing proposed in a law, unless the whole law be thoroughly
examined.) — Same, sec. 285.
Also ; " The connection and relation of things themselves, serve
also to discover and establish the true sense of a treaty, or of any
other piece. The interpretation ought to be made in such a man
ner, that all the parts appear consonant to each other ; that what
follows agree with what went before ; ai least, if it does not mani
festly appear, that by the last clauses, something is changed that
went before. For it is presumed that the authors of the treaty
have had an uniform and steady train of thought ; that they did not
desire things which ill agreed with each other, or contradictions;
but rather that they have intended to explain one thing by another;
and, in a word, that one and the same spirit reigns throughout the
sarae work, or the same treaty." — Same, sec. 286.
The Sup. Court of Mass. says, " When the meaning of any
particular section or clause of a statute is questioned, it is proper
to look into the other parts of the statute ; otherwise, the different
sections of the same statute might be so construed as to be repug
nant." — 1 Pickering, 250.
Coke says, " It is the most natural and genuine e.xposition of a
statute lo construe one part of the sta:tute by another part of the
same statute." — Co. Lit., 381, b.
The foregoing citations indicate the absolute necessity of the
rule, to preserve any kind of coherence or congruity between the
different parts of an instrument.
If we were to go out of an instrument, instead of going to other
parts of it, to find the meaning of every ambiguous word, we
should be liable lo involve the whole instrument in all manner of
incongruities, contradictions, and absurdities. There are hardly
three consecutive lines, of any legal instrument whatever, the
sense of which can be understood without reference to other parts
of the instruraent.
To go out of an instrument, instead of going to other parts of it,
to find the sense of an ambiguous word, is also equivalent to say
ing that the instrument itself is incomplete.
Apply this rule, then, to the word "free," and the words "all
ether persons." The sense of these words being ambiguous in
themselves, the rest of the instruraent must be examined to find
the persons who may properly be denominated "free persons,"
nnd " all other persons." In making this examination, we shall
16

182 RULES OF QfTERPRETATION.
find no classes mentioned answering to these descriptions, but the
native and naturalized persons on the one hand, and those not
naturalized on the other.

SIXTH RULE.
A sixth rule of interpretation, and" a very important, inflexible,
and universal one, applicable to contracts, is, that a contract must
never, if it be possible to avoid it, be so construed, as that any one
of the parties to it, assuming him to understand his rights, and to
be of competent mental capacity to make obligatory* contracts,
may not reasonably be presumed to bave consented to it.
If, for instance, two men were to form a copartnership in busi
ness, their contract, if its language will admit of any olher possible
construction, must not be so construed as to make it an agreement
that one of the partners shall be the slave of the other ; because
such a contract would be unnatural, unreasonable, and would
imply that the party who agreed to be a slave was incompetent
to make a reasonable, and therefore obligatory, contract.!
This principle applies to the constitution of the United States,
and to all other constitutions that purport to be established by " the
people ;" for such constitutions are, in theoiy, but contracts of the
people with each other, entered into by them severally for their
individual security and benefit. It also applies equally to all
statutes made in pursuance of such constiiutions, because the
statutes derive their authority from the constitutional consent or
contract of the people that such statutes may beenacted and en
forced. The authority of the statutes, therefore, as much rests on
contract, as does the authority of the constitutions themselves. To
deny that constiiutions and statutes derive their authority frora
contract, is to found tbe government on arbitrary power.
By the rule laid down, these statutes and constiiutions, there
fore, raust not be consirued, (unless such construction he unavoid
able,) so as to authorize anything whatever to which every single
individual of " the people" may nOt, as competent men, knowing

* Contracts made by persons mentally incompetent to make reasonable contracts
arenot "ohlig-atory." *
+ Although the greatest discretion thai is within the limits of reason is allowed
ZTT /" }1 ^"""-acts, yet contracts manifestly unreasonable are not
held obligatory. And all contracts are unreasonable that purport to surrender one's
natural rights. Also, all contracts that purport to surrender Ly valuable acnuired
rights, as property, for example, without any equivalent, or reasonable riolive

SIXTH RULE. 183
their rights, reasonably be presumed to have freely and voluntarily
assented. Now the parties to the contract expressed in the constitution of
the United States, are " the people of the United States,'' that is,
the wkok people of the United States. The description given of
the parties to the constitution, eis rauch includes those " people of
the United Slates" who were at the time treated as slaves, as
those who were not. The adoption of the constitution was not, in
theory, the exercise of a right granted to the people by the State
legislatures, but of the natural original right of the people thera
selves, as individuals. (This is the doctrine of the suprerae court,
as will presently appear.) The slaves had the same natural com
petency atad right to estabUsh, or consent to, government, that
others had ; and they must be presuraed to have consented to it
equally veith others, if the language of the constitution implies it.
We certainly cannot go out of tke constitution to find the parties
io it. And the constitution affords no legal ground whatever for
separating the then " people of the United States " into two classes,
and saying that one class were parties to the constitutional con
tract, and that the other class were not. There would be just as
much reason in saying that the terras " the people " used in the
constitutions of Massachusetts, Maine, New Hampshire, and Ver
mont, to describe the parties to those constitutions, do not include
all " the people " of those Slates, as there is for saying that all
¦" the people of the United States " are not included in the consti
tutional description of them, and are not, therefore, parties to the
constitution of the United States.
We are obliged to take this terns, " the people," in its broadest
sense, unless the instrument itself have clearly and palpably im
posed some restriction upon it.
It is a universajl rule of courts, that where justice will be pro
moted by taking a word in the most comprehensive sense in
which it can be taken consistently with the rest of the instru
ment, it must be taken in that sense, in order that as much
Justice as possible may be accomplished. On the other hand,
where a word is unfavorable to justice, it must be taken in its
most restricted sense, in order that as little injustice as possible
may be accomplished.*
* Vattel says, " When the subject relates lo things favorable " — (in sec. 302, he
defines "things favorable " to be things " useful and salutary to human society,")
— " we ought to give the terms all the extent they are capable of in common use ;

184 RULES OF INTERPRETATION.
In conformity with this rule, the words, " the people of the
United States," would have to be taken in their most extensive
sense, even though they stood but on an equal ground with other
words in the instruraent. But, in fact, they stand on privileged
ground. Their meaning is to be determined before we proceed tct
the interpretation of tke rest of the instrument. The first thing to
be ascertained, in regard to an instrument, always is, who are the
parties to it ; for upon that fact may depend very many important
things in the construction of the rest of the instrument. In short,
the body of the instrument is to be interpreted witb reference to
the parties, and not the parties conjectured by reference to the
body of the instrument. We must first take the instrument's own
declaration as to who the parties are ; and then, if possible, make
the body of the instrument express such, and only such, intentions,
as all tbe parlies named may reasonably be presumed to have
agreed to.
Assuming, then, that all "the people ofthe United Slates" are
parties to the constitutional contract, it is manifest, that it cannot
reasonably be presumed tbat any, even the smallest, portion of
them, knowings their natural rights, and being competent to make
a reasonable contract of government, would consent to a constitu
tion that should either make thera slaves, or assist in keeping them
in slavery. Such a construction, therefore, must not be put upon
the contract, if the language admits of any other. This rule alone,
then, is sufficient to forbid a construction sanctioning slavery.
It may, perhaps, be argued that the slaves were not parties to
the constitution, inasmuch as they never, in fact, consented to it..
But this reasoning would disfranchise half the population; for
there is not a single constitution in the country — state, or national
— to which one half of the people who are, in theory, parties to it,
ever, in fact and inform, agreed. Voting for and under a consti
tution, are alraost the only acts that can, with any reason at all, be
considered z. formal assent to a constitution. Yet a bare majority

and if a term has many significations, the most extensive ought to-bepreferred." 
B. 2, ch. 17, sec. 307.
"In relation lo things favorable, the most extensive signification of tbe terms is
more agreeable lo equity than their confined signification."  Same.
" We should, in relation to things odious," — (in sec. 302, he defines " as odi
ous, everything that, in its own nature, is rather hurtful than of nse to the humaa
race,") — " take the terms in the most confined sense, and even, to a cerlaiit
degree, may admit the figurative, lo remove the burdensome consequences o*" »ha
proper and literal sense, or what it contains that is odious." — Same, sec. 308.

SIXTH RULE. 185
of the adult males, or about one tenth of the whole people, is the
largest number of " the people " that has ever been considered
necessary, in this country, to establish a constitution. And after
it is established, only about one fifth of the people are allowed to
vote under it, even where suffrage is raost extended. So that no
formal assent to a constitution is ever given by the people at large.
Yet the constitutions themselves assume, and virtually assert, that
all "the people'' have agreed to thera. They must, there
fore, be construed on the theory that all have agreed to them,
else the instruments themselves are at once denied, and, ofcourse,
invalidated altogether. No 'one, then, who upholds the validity
of the constitution, can deny its own assertion, that all " the peo
ple" are parties to it. Besides, no one, unless it be the particular
individuals who have not consented, can take advantage of the
fact that they have not consented.
And, in practice, we do not allow even such individuals to
take advantage of the fact of their non-consent, to avoid the bur
dens imposed by the instrument ; and not allowing the individuals
themselves to take advantage of it for that purpose, no other per
son, certainly, can be allowed to take advantage of it to shut them
out from its protection and benefits.
The consent, then, of "the people" at large is presumed,
whether they ever have really consented, or not. Their consent
is presuraed only on the assumption that the rights of citizenship
are valuable and beneficial lo them, and that if they understood
that fact, ihey would willingly give their consent in form. Now,
the slaves, if they understood that the legal effect of their consent
ing to the constitution would be " to secure the blessings of liberty
to themselves and their posterity," would doubtless all be as ready
to give their actual assent to it, as any other portion of " the
people" can be. Inasmuch, then, as such- would be the legal
effect of their consent, there is no other class of " the people of the
United States," whose consent to the constitution may, wilh so
much reason, be presuraed ; because no other class have so much
to gain by consenting to it. And since the consent of all is pre
suraed, solely on the ground that the instrument is beneficial to
them, regardless of their actual assent, there is no ground for
excluding, or for iiot presum'mg, the consent of those, whose
consent, on account of its beneficial operation upon their interests
and rights, can be most reasonably and safely presumed.
But it raay, perhaps, be said that it cannot reasonably he pre-
16*

186 RULES OF INTERPRETATION.
sumed fhat the slaveholders would agree to a constitution, which
would destroy their right to their slave property. .
One answer lo this arguraent is, that the slaveholders had, at
the time, no legal or constitutional right to their slaves, under
their State constiiutions, as has already been proved ; and they
must be presuraed to have known that such was the fact, for every
one is presumed to know the law.
A second answer is, that it is, in law, considered reasonable —
as it is, in fact, one of the highest evidences of reason — for a
man voluntarily to do justice, against his apparent pecuniary
interests. Is a man considered non compos mentis for restoring stolen
property to its rightful owner, when he might have retained it
with impunity ? Or are all the men, who have voluntarily eman
cipated their slaves, presumed to have been fools ? incompetent to
make r-easonable contracts ? or even to have had less reason than
those who refuse to emancipate? Yet this is the whole arguraent
of those, who say that it cannot be supposed that the slaveholders
would agree to a free constitution. The argument would have
been good for nothing, even if the then existing State constitutions
had authorized slavery.
There would be just as much reason in saying that it cannot be
supposed that thieves, robbers, pirates, or crirainals of any kind.
would consent to the establisl\raent of governments that should
have authority to suppress their business, as there is in saying
that slaveholders cannot be supposed to consent to a government
that should have power to suppress slaveholding. If this argument
were good for anything, we should have to apply it to the slate
constitutions, and construe them, if possible, so as lo sanction all
kinds of crimes which men comrait, on the ground that the crirai
nals themselves could not be supposed to have consented to any
government that did not sanction thera.
The truth is, that however great a criminal a man may have
been, it is considered a very reasonable act for him to agree to do
justice in future ; and therefore, when communities establish gov
ernments for the purpose of maintaining justice and rioht, the
assent of all the thieves, robbers, pirates, and slaveholders, is as
much presumed, as is the assent of the most honest portion of
community. Governments for the maintenance of justice and
liberty could not be established by the consent of the whole people
on any other ground.

SIXTH RULE. 187
It would be a delectable doctrine, indeed, for courts to act upon,
in construing a constitution, to presume that it was intended to
subserve the criminal purposes of a few of tbe greatest villains in
community ; and then to force all its honest words to yield to that
presumption, on the ground that otherwise these villains could not
be presumed to have agreed to it. Yet this is tbe doctrine practised
upon by all who uphold the constitutionality of slavery. They
know that the whole people, honest and dishonest, slaveholders
and non-slaveholders alike, must be presuraed to have agreed
either to an honest or a dishonest constitution ; and they think it
more reasonable to presume that all the honest people agreed to
turn knaves, than that all the knaves agreed to become honest.
This presumption is the polar star of all their reasonings in favor
of the constitutionality of slavery. If this presumption be a true
guide in the interpretation of all other constitutions, laws, and
contracts, it is, of course, a correct one for interpreting the consti
tution of the United States ; otherwise not.
The doctrine, that an instrument, capable of an honest meaning,
is tobe construed into a dishonest one, raerely because one in forty
of the parlies to it has been a dishonest man up to the time of
making the agreement, (and probably not more than one in forty
of " the people of the United States" were slaveholders,) would
not only put it nearly or quite 'out of the power of dishonest men
to raake contracts wilh each olher that would be held honest in
the sight of the law, but it would even put it nearly or quite out
of the power of honest men to make contracts with dishonest ones,
that would be held honest in the sight of the law. All their con
tracts, susceptible of a dishonest raeaning, would have to be so
construed; and what contract is ever entered into by honest with
dishonest rnen, that is not susceptible of such a construction, espe
cially if we raay go out of the contract, and inquire into the
habits, character, and business of each of the parties, in order to
find that one of them is a man who may be suspected of a dis
honest motive, and this suspected motive of the one may then be
attributed to the others as their true motive.
Such a principle of law would virtually cut off dishonest men
from all right to make even honest contracts with their fellow
men, and would be a far greater calamity to themselves than the
doctrine that holds all their contracts to be honest, that are suscep
tible of an honest construction ; because it is indispensable to a
dishonest raan's success and well-being in life that a large portion
of his contracts should be held honest and valid.

188 RULES OF INTERPRETATION.
Under a principle of law, that presumes everybody dishonest,
and construes their constitutions, laws, and contracts accordingly,
pandemonium would be established at once, in which dishonest
men would stand no better chance than others ; and would there
fore have no more motive than others for sustaining the govern
ment. In short, it is obvious that government would not, and could not,
be upheld for an instant, by any portion of society, honest or dis
honest, if such a presumption were to be adopted by the courts as
a general rule for construing either constitutions, laws, or private
contracts. Yet, let it be repeated, and never forgotten, that this
presumption is indispensable to such a construction of the constitu
tion as makes slavery constitutional. It is the sine qua non to the
whole fabric of the slaveholding argument.
There is, then, no legal ground whatever for not presuming the
consent of slaves, slaveholders, and non-slaveholders to the consti
tution of the United States, on the supposition tbat it prohibits
slavery. Consequently, there is no legal ground for denying that
the terms " the people of the United States," included the whole
ofthe then people ofthe United States. And if the whole of the
people are parties to it, it must, if possible, be so construed as to
make it such a contract as each and every individual might rea
sonably agree to. In short, it must, if possible, be so construed as
not to make any of the parties consent to their own enslavement.
Such a construction is possible, and being possible, is necessarily
the true construction.
The constitution of the United States, therefore, would have
abolished slavery, by making the slaves parties to it, even though
the state constitutions had previously supported it.*

* Story says, " Who, then, are the parties to this contract 7 * » * Let the
instrument answer for itself. The people of the United States are the parties to
the constitution." — 1 Story's Comm. on Const., p. 355.
The supreme court of the United States says, " The governmeni (of the U. S.)
proceeds directly from the people ; lo ' ordained and established ' in the name of the
people." — 4 Wheaton, i03.
" The government of the Union is, emphatically and truly, a governmeni of the
people ; and in form and in substance it emanates from them. Its powers are
granted by theni, and are to be exercised directly on them, and for their benefit."
— 4 Wheaton, 404, 405.
" The constitution of the United Slates was ordained and established, not hy the
United States in their sovereign capacities, but emphatically, as the preamble of
the constitution declares, by the people of the United Slates." — 1 Wheatmi, 324.
Story, commenting upon the words " We the people of the United States," says,
' We have the strongest assurances that this preamble was not adopted as a mera

SEVENTH RULE. 189
SEVENTH RULE.
The seventh rule of interpretation is the one that has been
repeatedly cited from the supreme court of the United States, to
wit: " Where rights are infringed, where fundamental principles are
overthrown, where the general system of the laws is departed from,
the legislative intention must be expressed with irresistible clear
ness, to induce a court of justice to suppose a design to effect such
objects."

formulary ; bul as a solemn promulgation of a fundamental fact, vital lo the char
acter and operations of the government. The obvious object was to substitute a
government ofthe people for a confederacy of states." — 1 Comm., p. 446.
Also, " The convention determined that the fabric of American empire ought lo
rest, and should rest, ou the solid basis of the consent of the people. The streams
of national power ought to flow, and should flow, immediately from the highes
original fountain of all legitimate authority. * * * And the uniform doctrine
of the highest judicial authority has accordingly been, that it was the act of the
people, and not the act of the states ; and that it bound the latter as subordinate
to the people." — I Story's C&mm., p. 447.
Kent says, " The government of the United States was erected by the free voice
and the joint will of tlie people of America, for their common defence and general
welfare." — 1 Kent, 189.
Chief Justice Jay said, " Every state constitution is a compact, made by and
between the citizens of the state lo govern themselves in a certain manner ; and
tbe constitution of the United States is likewise a compact, made by the people of
the United States to govern themselves, as to general objects, in a certain manner."
— 2 Dallas, 419; ciled by Story, 1 Comm., p. 317.
Mr. Webster says, " It is the people's constitution, the people's government ; made
for the people ; made by the people ; and answerable to the people. The people
ofthe United States have declared that this constitution shall be the supreme law.
We must either admit the proposition, or dispute their authority. * * * We
are all agents of the same supreme power, the people. \ The general governi^ent
and the slate governments derive their authority from the same source." — Web
ster's Speeches, vol. 1, p. 410.
Also, " I hold it to be a popular govemment, erected by the people ; those who
administer it, responsible to the people ; and ilself capable of being amended and
modified, just as the people choose it should be. It is as popular, just as truly
emanating from the people, as tbe state governments. It is created for one pur
pose ; the stale governments for another. It has its own powers ; they have theirs."
— Same, p. 418.
Also, "This government is the independent offspring of the popular will." —
^ame, 419.
If the constitution were not established by " the people," there is no information
given in the constitution, as to whom it was established by. We must, of necessity,
therefore, accept its own declaration, that it was established by the people. And
if we accept its declaration that it was established by " the people," we must also
accept its virtual declaration that it was established by the whole people, for it
gives no information of its being established by one portion of the people, any more
than by another. No separation can therefore be made between different portions
pf the people.

190 RVIiES OF INTERPRETATION.
The pith of this rule is, that any unjust intention must be
'expressed witk irresistible clearness," to induce a court to give a
law an unjust raeaning.
The word "expressed" is a very important one, in this rule. It
is necessary, therefore, for the benefit of the unprofessional reader,
to define it.
In law, a thing is said to be " e.xpressed," only when it is uttered,
or written out, embodied in distinct words, in contradistinction to
its being inferred, implied, or gathered from evidence exterior to
the words of the law.
The amount of the rule, then, is, that the court will never,
' tkrougk inference, nor implication, attribute an unjust intention
to a law ; -nor seek for such an intention in any evidence exterior
to the words of tke law. They will attribute such an intention to
the law, only when such intention is written out in actual terms ;
and in terras, too, of " irresistible clearness."
The rule, it will be observed, does not forbid a resort to infer
ence, implication, or exterior evidence, to help out the supposed
meaning of, or to solve any ambiguities in, a law tkat is consistent
with justice. It only forbids a resort to such means to help out
the supposed meaning of, or to solve any ambiguities in, an unjust
law. It virtually says that if an ambiguous law can possibly be
interpreted favorably lo justice, it shall be thus interpreted. But
if it cannot be tbus interpreted, it shall be suffered to remain inop
erative — void for its ambiguity — rather than the court will help
out its supposed meaning by inference, implication, or exterior
evidence. Is this rule a sound one ? It is ; and for the following reasons :
Certainty is one of the vital principles of law. Properly speak
ing, nothing is law that is uncertain. A written law is only what
is written. It is not certain, any further than it is written. If,
then, we go out of the written law, we necessarily go into the
region of uncertainty. It must, also, generally be presumed, that
the legislature intend nothing more than they have chosen to cora
municate. It is therefore straining matters, and going beyond
strict legal principles, to go out of the words of a law, to find ils
meaning, in any case whatever, whether for a good purpose, or a
bad one.
It will be asked, then, " Why resort to inference, implication,
and exterior evidence, to solve the arabiguities in sl just law?"
The answer is this : Such is the variety of senses in which Ian-

SEVENTH RULE. 191
guage is used by different persons, and such the want of skill in
many of those who use it, that laws are very frequently left in
some ambiguity. Men, nevertheless, act upon thera, assuming to
understand thera. Their rights thus become involved in the
efficacy of the law, and will be sacrificed unless the law be carried
into effect. To save these rights, and for no other purpose, the
courts vrill venture lo seek the raeaning of the law in exterior evi
dence, when the intent of the law is good, and the apparent arabi-
guity not great. Strictly speaking, however, even this proceeding
¦is illegal. Nothing but the necessity of saving men's rights,
affords any justification for it. But where a law is ambiguous and
unjust, there is no such necessity for going out of its words to
settle its probable raeaning, because inen's rights will not be saved,
but only sacrificed, by having its uncertainty settled, and the law
executed. It is, therefore, better that the law should perish, be
suffered to reraain inoperative for its uncertainty, tban that its
uncertainty should be reraoved, (or, rather, attempted to be
removed, for it cannot be removed absolutely, by exterior evi
dence,) and the law carried into effect for the destruction of men's
rights. Assuming, then, the rule of the court to be sound, are the rules
laid down in the " Unconstitutionality of Slavery,"* that have
since been somewhat questioned,! embraced in it? Tbose rules
are as follows :
1. " One of them is, that where words are susceptible of two
meanings, one consistent, and the other inconsistent, wilh justice
and natural right, that meaning, and only ihat meaning, which is
consistent with right, shall be attributed to them, unless other parts
of the instruraent overrule that interpretation."
This rule is clearly embraced in the rule of the court; for the
rule of the court requires the unjust meaning to be " expressed
with irresistible clearness," before it can be adopted ; and an un
just raeaning certainly cannot be said to be " expressed with irre
sistible clearness," wben it is expressed only by words, which,
consistently with the laws of language, and the rest of the instru
ment, are susceptible of an entirely different — that is, a perfectly
innocent — meaning.
2. " Another rule, (if, indeed, it be not the same,) is, that no
language except that which is peremptory, and no implication,
* Page 62, Second Edition. t By Wendell Phillips.

192 RULES OF INTERPRETATION.
sxcept one that is inevitable, shall be held to authorize or sanction
anything contrary to natural right."
This rule is also cleariy embraced in the rule of the court ; for
the rule of the court requires that the unjust intention be " ex
pressed," that is, uttered, written out in termSf as distinguished
from being .m/errec^, or implied. The requirement, also, that it be
" expressed wiik irresistible clearness," is equivalent to the require
ment that the language be " peremptory."
3. " Another rule is, that na extraneous or Mstorical evidence
shall be admitted to fix upon a statute an unjust or immoral mean
ing, when the words themselves of the act are susceptible of an
innocent one."
This rule is also clearly embraced in the rule of the court ; for
the rule of the court requires, not only that the unjust intention be
" expressed," written out, embodied in words, as distinct from being
inferred, implied, or sought in exterior historical evidence, but also
that it be embodied in words of " irresistible clearness." Now,
words that express their intention with " irresistible clearness," can
of course leave no necessity for going out of the words, to " extra-
7ieous or Mstorical evidence,'' to find their intention.
But it is said that these rules are in conflict with the general
rule, that where a law is ambigu'ous, the probable intent of the
legislature may be ascertained by extraneous testimony.
It is not an universal rule, as has already been shown, that even
where a law, as a whole, is ambiguous,' the intentions of the legis
lature may be sought in exterior evidence. It is only where ^just
law is ambiguous', that we may go out of its words to find its
probable intent. We may never do it to find the probable intent
of an unjust one that is ambiguous ; for it is better that an unjust
law should perish for uncertainty, than that its uncertainty should
be solved by exterior evidence, and the law then be executed for
the destruction of men's rights.
Where only single words or phrases in a law are ambiguous, as
is the case with the constitution of the United States, the rule is
somewhat different frora what it is where the law, as a whole, is
ambiguous. In the case of single words and phrases that are
ambiguous, all the rules applicable to ambiguous words and
phrases must be exhausted in vain, before resort can be had to
evidence exterior to the law, or the words and phrases be set down
as sanctioning injustice. For example ; to settle the meaning of
wi ambiguous word or phrase, we must, before going out of the

SEVENTH RULE. 193
mstrument, refer to all the other parts of the instrument itself, to
its preamble, its general spirit and object, its subject matter, and,
in the case of the constitution, to " the general system of the
laws " authorized and established by it. And the ambiguous
word or phrase must be construed in conformity vvith these, if
possible,' especially when these are favorable to justice. And it is
only when all these sources of light have failed to suggest a just,
reasonable, and consistent meaning, that we can go out of the
instrument to find the probable meaning.
If, when a single word or phrase were ambiguous, we could at
once go out of the instrument, [before going to other parts of it,)
to find the probable intent of that single word or phrase, and could
determine its intent, independently of its relation to the rest of the
instrument, we should be liable to give it a raeaning irrelevant to
the rest of the instrument, and thus involve the whole instrument
in absurdity, contradictionLand incongruity.
There are only four or five single words and phrases in the
constitution, that are clairaed to be ambiguous in regard to slavery.
All the other parts of the instrument, its preamble, ils prevailing
spirit and principles, its subject matter, " the general system of the
laws " authorized by it, all repel the idea of its sanctioning
slavery. If, then, the ambiguous words and phrases be construed
with reference to tbe rest of the instrument, there is no occasion
Ip go out of the instrument to find their meaning.
But, in point of fact, the words of a law never are ambiguous,
legally speaking, where the alternative is only belween a meaning
that is consistent, and one that is inconsistent, with natural right ;
for the rule that requires the right to be preferred to the wrong, is
imperative and universal in all such cases ; ihus making the legal
meaning ofthe word precisely as certain, as though it could, in no
case, have any other meaning. It thus prevents ihe ambiguity,
which, but for the rule, might have existed.
This rule, that a just, in preference to an unjust, meaning must
be given to a word, wherever it is possible, consistently vvilh the
rest of the instruraent, obviously takes precedence of the rule that
permits a resort to exterior evidence ; and for the following rea
sons : —
1. Otherwise, the rule in favor of the just meaning could sel
dom or never be applied at all, because when we have gone out
of the words of the law, we have gone away from those things to
which the rule applies. The exterior evidence which we should
17

194 RULES OF INTERPRETATION.
find, would not necessarily furnish any opportunity for the appli
cation of the rule. This rule, therefore, of preferring the just to
the- unjust meaning of a word, could hardly have had an existence,
except upon the supposition that it was to be applied to the words
given in the law itself. And if applied to the words given in the
law itself, it of course settles the meaning, and there is then no
longer any occasion to go out ofthe law to find its meaning.
2. Nothing would be gained by going out of a law to find
evidence of the meaning of one of its words, when a good meaning
could be found in the law itself Nothing better than a good
meaning could be expected lo be found by going out of the law.
As nothing could be gained, then, by going out of the law, the
only object of going out of it would be to find an unjust meaning;
but that, surely, is no sufficient reason for going out of it. To go
out of a law to find an unjust meaning for its words, when a just
meaning could be found in the law itself, would be acting on the
pring^ple of subverting all justice, if possible.
3. It would hardly be possible to have written laws, unless the
legal meaning of a word were considered certain, instead of am
biguous, in such cases as this ; because there is hardly any word
used in writing laws, which bas not more than one meaning, and
which might not therefore be held ambiguous, if we were ever to
lose sight of the fact, or abandon tbe presumption, that justice is
the design of the law. To depart from this principle would be
introducing universal ambiguity, and opening the door to universal
injustice. 4. Certainty and right are the two most vital principles of the
law. Yet certainty is always sacrificed by going out of the words
of the law ; and right is always liable lo be sacrificed, if we go
out of the words, wilh liberty to choose a bad meaning, when a
good meaning can be found in the words themselves ; while both
certainty and right are secured by adhering uniformly to the rule
of preferring the just to the unjust meaning of a word, wherever
the two come in collision. Need anything more be said to prove
the soundness of the rule?
The words of a law, then, are never ambiguous, legally speak
ing, when the only alternative is between a just and an unjust
meaning. They are ambiguous only when both meanings are
consistent with right, or both inconsistent with it.
In the first of these two cases, viz., where both meanings are
consistent with right, it is allowable, for the sake of saving the

SEVENTH RULE. 195
rights dependent on the efficacy of the law, to go lo extraneous
history to settle the probable intention of the legislature. But in
the latter case, viz., where both meanings are inconsistent with
right, it is not allowable to go out of the words of the law itself,
to ascertain the legislative intention. The law must rather be
suffered to remain inoperative for its uncertainty.
The rule, quoted from the supreme court, comes fully up to
these principles ; for that rule requires, in order that an unjust law
may be carried into effect, that the unjust intent be " expressed,"
as distinguished from being inferred, implied, or sought in exterior
evidence. It raust also be " expressed with irresistible clearness."
If it be left in an uncertainty, the law will be construed in favor
of the right, if possible ; if not, it will be suffered to perish for its
ambiguity. Apply, then, this rule of the court, in all its parts, to the ,word
" free," and the matter will stand thus.
1. A sense correlative with aliens, makes the constitution con
sistent with natural right. A sense correlative with slaves, makes
the constitution inconsistent with natural right. The choice must
therefore be made of the former sense.
2. A sense correlative with aliens, is consistent with " the gen
eral system of the laws " established by the constitution. A sense
correlative wilh slavery, is inconsistent with that system. The
former sense then must be adopted.
3. If a sense correlative with aliens be adopted, the constitution
itself designates the individuals to whom the word " free," and the
words "all other persons" apply. If a sense correlative vvith
slaves be .adopted, the constitution itself has not designated the
individuals to whom either of these descriptions apply, and we
should have to go out of the constitution and laws of the United-
States to find them. This settles the choice in favor of the former
sense. 4. Even if it were admitted that the word "free " was used as
the correlat'ive of slaves, still, inasmuck as tke constitution itself
has not designated the individuals who may, and who may not, be
held as slaves, and. as we cannot go out of the instrument to settle
any ambiguity in favor of injustice, the provision must remain
inoperative for its uncertainty ; and all persons must be presumed
free, simply hecause ihe constitution itself has not told us tvho may
le slaves.
Apply the rule further to the words " importation of persons,"

196 RULES OF INTERPRETATION.
and " service and labor," and those words wholly fail to recognize
slavery. ^
Apply tne rule only to the word " free," and slavery is uncon
stitutional ; for the words " importation of persons," and " service
and labor," can have no claims, to be considered recognitions or
sanctions of slavery, unless such a signification be first given to
the word " free." EIGHTH RULE.
An eighth rule of interpretation is, that where the prevailing
principles and provisions of a law are favorable to justice, and
general in their nalure and terms, no unnecessary exception to
them, or lo their operation, is to be allowed.
It is a dictate of law, as of comraon sJense — or rather of law,
because of coramon sense — that an exception to a rule cannot be
established, unless it be stated with at least as much distinctness
and certainty as the rule itself, to which itis an exception ; because
otherwise the authority of the rule will be more clear and certain,
and consequently more imperative, than that of the exception, and
will therefore outweigh and overbear it. This principle raay
justly be considered a strictly mathematical one. It is founded
simply on the necessary preponderance of a greater quantity over
a less. On this principle, an e.xception to a general law cannot
be established, unless it be expressed with at least as much dis
tinctness as the law itself.
In conformity with this principle, it is the ordinary practice, in
the enactment of laws, to state the exceptions with the greatest
distinctness. They are usually stated in a separate sentence from
the rest of the law, and in the form of a proviso, or exception,
commencing with tbe words " Provided, nevertheless," " Excepting,
however," or vvords of that kind. And the language of the proviso
is generally even more emphatic than that of the law, as it, in
reality, ought to be, to preponderate against it.
This practice of stating exceptions has been further justified,
and apparently induced, by that knowledge of human nature
which forbids us to understand a man as contradicting, in one
sentence what he has said in another, unless his language be
incfipable of Sny olher meaning. For the same reason, a law,
(which is but the expression of men's intentions,) should not ba
held to contradict, in one sentence, vvhat it has said in another,
except the terms be perfectly clear and positive.

EIGHTH RULE. 197
The practice of stating exceptions in this formal and emphatic
manner, shows also that legislators have usually, perhaps uncon
sciously, recognized, and virtually admitted, the soundness of
the rule of interpretation, that requires an exception to be stated
with at least as much clearness as the law to which it is an ex
ception. This practice of stating exceptions in a clear and forraal manner,
is common even where no violation of justice is involved in the
exception ; and where an exception therefore involves less viola-
lion of reason and probability.
This rule of interpretation, in regard to exceptions, corresponds
with what is common and habitual, if not universal, in common
life, and in ordinary conversation. If, for instance, a man raake
an exception to a general remark, he is naturally careful to express
the exception with peculiar distinctness ; thus tacitly recognizing
the right of the other party not to notice the exception, and the
probability that he will not notice it, unless it be stated wilh per
fect distinctness.
Finally. Although an exception is not, in law, a contradiction,
it nevertheless partakes so strongly ofthe nature of a contradiction
— especially where there is no legitimate or rightful reason for
it — that it is plainly absurd to admit such an exception, except
upon substantially the same terras that we admit a contradiction,
viz., irresistible clearness of expression.
The question now is, whether there is, in the constitution, any
compliance wilh these principles, in raaking exceptions in favor of
slavery ? Manifestly there is none. There is not even an ap
proach lo such a corapliance. There are no words of exception ;
no words of proviso ; no vvords necessarily implying the existence
or sanction of anything in confiict with the general principles of
the instrument.
Yet the argument for slavery, (I mean that founded on the
representative clause,) makes two exceptions — not one merely,
but two — and both of the most flagitious and odious character —
without the constitution's having used any words of proviso or
exception ; without its having devoted any separate sentence to
the exception ; and without its having used any words which, even
if used in a separate sentence, and also preceded by a " Provided,
Tiever theless," would have necessarily implied any such exceptions
as are clairaed. The exceptions are claimed as having been
established merely incidentally and casually, in describing the
17*

198 RULES OF INTERPRETATION.
manner of counting the people for purposes of representation and
taxation; when, vvhat is worse, the words used, if not the mosi
coraraon and proper that could have been used, are certainly both
common and proper for describing the people, where no excep
tion to " the general system of the laws" established by the con
stitution is intended.
It is by this process, and this alone, that the arguraent for slavery
makes iwo exceptions to the constitution ; and both, as has already
been said, of tbe raost flagitious and odious character.
One of these exceptions is an exception of principle, substituting
injustice and slavery, for " justice and liberty."
The other is an exception of persons ; excepting a part of " the
people of the United States " frora the rights and benefits, which
the instrument professes to secure lo the whole ; and exposing
them to wrongs, from which the people generally are exempt.
An exception of principle vvould be less odious, if the injustice
were of a kind that bore equally on all, or applied equally lo all.
But these two exceptions involve not only injustice in principle,
but partiality in its operation. This double exception is doubly
odious, and doubly inadmissible.
Another insuperable objection to the allowance of these excep
tions, is, that they are indefinite — especially the latter one. The
persons who may be made slaves are not designated. The per
sons allowed to be made slaves being left in uncertainty, the
exception must fail for uncertainty, if for no other reason. We
cannot, for the reasons given under the preceding rule, go out of
tke instrument to find the persons, because it is better that the
exception should fail for ils uncertainty, than that resort should be
had to exterior evidence for the purpose of subjecting men to
slavery. NINTH RULE.
A ninth rule of interpretation is, to be guided, in doubtful cases,
by the preamble.
The authority ofthe preamble, as a guide to the meaning of an
instrument, where the language is ambiguous, is established. In
fact, the whole object ofthe preamble is to indicate the objects had
in view in the enacting clauses ; and of necessity those objects will
indicate the construction to be given to tbe words used in those
clauses. Any other supposition would either make the preamble
worthless, or, worse than that, deceitful. V

TENTH RULE, 199
If we are giudod by the preamble in fixing the meaning of those
clauses that have been claimed for slavery-, it is plain that no sanc
tion or recognition of slavery will be found in them; for the pre
amble declares the objects of the constitution to be, among oth^r
things, "justice" and *' liberty." *
TENTH KULE>
A tenth rule of interpretation is, that one part of an instrument
raust not be allowed to contradict another, unless the language be
so explicit as to malce the contradiction inevitable.
* Story says, -"The iipportance of examining the preaml^le, for the purpose of
¦expounding the language of a statute, has been long feh, and universally conceded
in all juridical discussions^. It is an admitted maxim in ihe ordinary couTse ofthe
adm i« ist rati OH of justice, that the preamble of a statute is -a key to open the mind
¦ofthe makers, as to the mischiefs which are to he remedied, and the objects which
are l© be accomipli^-hed fay the provisions of the statute. We find il laid down in
some of our earliest authorities in the 'common law, and civilians are accustomed
lo a similar exfffession, cessante legis -prmmio^ ccssat et ipsa lex. (The preamble
ofthe law ceasiag, the law itself also teases.) Pro^jably it has a foundation in the
•exposition of every code of written law, from the uni^rersal principle of interpreta
tion, that the will and intention of the legislature is to be regarded and followed.
It is properly resorted to where doubts or ambiguiti^is arise «pon tbe words of the
enacting part ; for if they are clear and unambiguous, there seenrs little room ibr
interpretation, except in cases leading to an absurdity, or to a diretet overthrow of
the intention expr>essed in the preamble,
"There does not seem any reason why, ira a fundamental law or constitution of
^government, an equal attention should not l>e given to tbe intention ofthe framers,
as expressed in the preamble. And accordingly we find that it has been constantly
referred to by statesmen and Ju^rists to aid ihem. in the exposition of its provisions.'''
— 1 Story^s Comm. on Const., p. 443-4.
Story also says, ^' Its true office is to expound the nature, and extent, and applica
tion of the powers actually conferred by the constitution, and not substantively tw
^create them." — Same, AAS.
" Though the preamble canncrt control the enacting part of a statute which is
-expressed in clear and unambiguous term^, yet, if any doubt arise on the words of
the enacting part, the preamble maybe resorted to, to explain it." — 7 Baoon^t
^&r., 435, no^e. 4 TermRep.J^. 13 Vcsey^^. 15 Johnson, N. Y. Rep,, 11€,
" A statute made pro bono publico (for the public good) shall be construed m
such nianner that it may as far as possible attain tlie end proposed." — 7 Bacon^s
The constitution of the Uuited States avows itself to be estabUshed for the public
^ood — that is, forthe good of "tbe people of the United States" — to establish
justice and secure the blessings of liberty to themselves and their posterity. It
must of course " be construed in such manner that it niay, as far as possible, attain
that end."
Story says, " Was it not framed fer the good of the people, and by the people ? "
— 1 Story's Comm., 3^4.
Chiefjustice Jay dwells at length upon theauthority of the preamble, as a guide
for the interpretation of the constitution. — 2 Dallas, 41^. Also Juslioe Story, in
Ilis Commentaries on the Gonstitution, vol. \,book 3, ck. 6.

200 RULis OF INTEEPEETATION.
Now the constitution would be full of contradictions, if it toler
ated slavery, unless it be shown that the constitution itself has
established an exception to all its general provisions, limiting their
operation and benefits to persons ¦not slaves. Such an exception
or limitation would not, legally speaking, be a contradiction. But
I take it for granted that it has already been shown that no such
exception can be made out from its words. If no such exception
be made out from its words, such a construction must, if possible,
be given to each clause of the instrument, as will not amount to a
contradiction of any other clause. There is no difficulty in mak
ing such a construction ; but when made it will exclude slavery.
ELEVENTH RULE.
An eleventh rule is one kid down by the supreme court of the
United States, as follows :
"An act of congress" (and the rule is equally applicable to the
constitution) " ought never to be construed to violate the law of
nations, if any otYier possible construction remains."*
This rule is specially applicable to tbe clause relative to " the
importation of persons." If that clause were construed to sanction
the kidnapping of the people of foreign nations, and their importa
tion into this country as slaves^ it would be a flagrant violation of
that law. TWELFTH KTTLE.
A twelfth rule, universally applicable to questions both of fact
and law, and sufficient, of itself alone, to decide, against slavery,
every possible question that can be raised as to the meaning of the
constitution, is this, " that all reasotiable doubts must be decided in
favor of liberty." t
All the foregoing rules, it will be observed, are tittle other than
varied and partial expressions of the rule so accurately, tersely,
comprehensively, and forcibly expressed by the supre-me court of
the United States, viz.:
*2 Cranch, 64.
t The Supreme Court of Mississippi say, referring to the claim of freedom, ses
np before it, " Is it not an unquestioned rule that, in matters of doubt, courts
must lean in favorem vitce et libertatis? " (in favor of life and liberty.)  Harveg
vs. Decker, Walker's Mississippi Reports, 36.
I cite this authority ftom Mr. Chase's argument in the Van Zandt case.

THIRTEENTH RULE. 201
" Where rights are infringed, where fundamental principles are
overthrown, where the general system of t'he laws is departed from,
the legislative intention must be expressed vvith irresistible clear
ness, to induce a court of justice to suppose a design to effect such
objects." THIRTEENTH RULE.
A thirteenth rule, and one of great importance, is, that instru
ments must be so consirued as to give no shelter or effect to fraud.
This rule is especially applicable for deciding what meaning we
are to give to the word free in the constitution ; for if a sense cor
relative with slavery be given to that word, it will be clearly the
result of fraud.
We have abundant evidence that this fraud was intended by some
oi the framers ofthe constitution. They knew that an instrument
legalizing slavery could not gain the assent of the north. They
therefore agreed upon an instrument honest in its terms, with the
intent of misinterpreting it after it should be adopted.
The fraud of the framers, however, does not, of itself, implicate
the people. But when any portion of the people adopt this fraud
in practice, they become implicated in it, equally with its authors.
And any one who claims that an ambiguous word shall bear a sense
inappropriate to the subject matter of the instrument, contrary to
the technical and comraon meaning of the word, inconsistent with
any intentions that all the parties could reasonably be presumed to
agree to, inconsistent with natural right, inconsistent wilh the pre
amble, and the declared purpose of the instrument, inconsistent
with " the general system of the laws" established by the instru
ment; any one who claims such an interpretation, becomes a partic
ipator in the fraud. It is as much fraudulent, in law, ior the people
of the present day to claim such a construction of the word free, as
it was for those who lived at the time the instrument was adopted.
Vattel has laid down two very correct principles to be observed
as preventives of fraud. They are these:
1. That it is not permitted to interpret what has no need of
interpretation. 2. That if a party have not spoken plainly, when he ought to
have done so, that which he has sufficiently declared, shall be
taken for true against him.
Vattel's remarks in support of, and in connection with, these
principles, are so forcible and appropriate that they will be given

202 RULES OF INTERPRETATION.
somewhat at length. If he had had in his mind this very fraud
which the slaveholders and their accomplices intended to perpe
trate by means of the word free in the constitution, he could
hardly have said anything better fitting the case.
He says, "That fraud seeks to take advantage even of the
imperfeciion of language; that men designedly throw obscurity
and ambiguity into their treaties, to obtain a pretence for eluding
them upori occasion. It is then necessary to establish rules
founded on reason, and authorized by the law of nature, capable
of frustrating the attempts of a contracting power void of good
faith. Lel us begin with those that tend particularly to this end ;
with those ma.xims of justice and equity destined to repress fraud
and prevent the effect of its artifices.
" The first general maxim of interpretation is, that it is not per
mitted to interpret what has no need of interpretation.'* When
an act is conceived in clear and precise terms, when the sense is
manifest and leads to nolhing absurd, there can be no reason to
refuse the sense which this treaty naturally presents. To go else^
where in search of conjectures in order to restrain or extinguish
it, is to endeavor to elude it. If this dangerous method be once
admitted, there will be no act which it will not render useless.
Let the brightest light shine on all the parts of the piece, let it be
expressed in terms the most clear and determinate ; all this shall
be of no use, if it be allowed to search for foreign reasons in order
to maintain what cannot be found in the sense it naturally presents.
" The cavillers who dispute the sense of a clear and determinate
article, are accustomed to draw their vain subterfuges from the
pretended intention and views of the author of that article. It
would often be very dangerous to enter with them into thj discus
sion of these supposed views, that are not pointed out in the piece
itself This rule is more proper to repel them, and which cuts off
all chicanery ; if he who can and ought to have explained himself
clearly and plainly, has not done it, it is the worse for him ; he
cannot be allowed to introduce subsequent restrictions which he has

*This rule is fairly applicable to the word ^ree. The sense correlative with
aliens is a sense appropriate to the subject matter of the instrument ; it accurately
and properly describes a class of persons, which the constitution presumes would
exist under it ; it was, at the time, the received and technical sense of the word in
all instruments of a similar character, and therefore its presumptive sense in the
constitution ; it is consistent with intentions reasonably attributable to all the par
ties to the constitution ; it is consistent with natural right, with the preamble, the
declared purpose of the constitution, and with the general system of the laws
established by the constitution. Its legal meaning, in the constitution, was there
fore plain, manifest, palpable, and, at the time of its adoption, Aad no need of inter
pretation. It needs interpretation now, only to expose the fraudulent interpretation
ofthe past ; and because, in pursuance of that fraudulent interpretation, usage has
Bow somewhat changed the received meaning ofthe word.

THIRTEENTH RULE. 203
not expressed. This is the maxim of the Roman law; Pactionem
obscuram iis nocere, in quorum fuit potestate legem apertius conr
scribere. (The harm of an obscure compact shall fall upon those
in whose power it was to write the rule plainly.) The equity of
this rule is extremely visible, and its necessity is not less evident.
There can be no secure conventions, no firm and solid concession,
if these raay be rendered vain by subsequent limitations that ought
to have been mentioned in the piece, if they were included in the
intentions of the contracting powers." — Vattel, b. 2, ch. 17, sees.
262, 263, 264.
" On every occasion when a person kas, and ought to have shown
his. intention, we take for true against him. whal he has sufficient
ly declared. This is an incontestible principle applied to treaties ;
for if ihey are not a vain play of words, the contracting parties
ought to express themselves with truth, and according to their real
intentions. If the intetilion sufficiently declared, was not taken for
the true intention of him v/ho speaks and binds himself, it would
be of no use to contract and form treaties." — Same, sec. 266.
" Is it necessary, in an enlightened age, to say that mental res
ervations cannot be admitted in treaties? This is manifest, since
by nature even of the treaty, the parties ought to declare the man
ner in which they would be reciprocally understood. There is
scarcely a person at present, who would not be ashamed of build
ing upon a mental reservation. What can be the use of such an
artifice, if it was not to lull to sleep some other person under the
vain appearance of a contract ? It is, then, a real piece of knavery."
— Same, sec. 2.75.
" There is not perhaps any language that has not also words
which signify two or many different things, or phrases susceptible
of more than one sense. Thence arise mistakes in discourse.
The contracting powers ought carefully to avoid them. To
employ them wilh design, in order to elude engagements, is a
real perfidy, since the faith of treaties obliges the contracting par
ties lo express their intentions clearly. But if the equivocal Jerm
has found adraission into a public treaty, the interpretation is to
raake the uncertainty produced by it disappear.
" This is the rule that ought to direct the interpretation in this
case. We ought ahvays io give to expressions the sense mosi suit
able to ihe subject, or to the matter to which they relate. For we
endeavor by a true interpretation, to discover the thoughts of those
vvho speak, or of the contracting powers in a treaty. Now it
ought to be presumed that he who has employed a word capable
of raany different significations, has taken it in that which agrees
with the subject. In proportion as he eraploys himself on the
matter in question, the terras proper to express his thoughts pre
sent themselves to his mind ; this equivocal word could then only
offer itself in the sense proper to express the thought of him who
makes use of it, that*is, in the sense agreeable to the subject. It

204 RULES OF INTERPRETATION.
would be to no purpose to object, that we sometimes kave recourse to
equivocal expressions, ivith a view of exhibiting sometMng very
different from what one has truly in the mind, and ihat then the
sense which agrees with tke subject is not that wkich answers to the
intention of the man who speaks. We kave already observed, that
whenever a man can and ought to kave made known his intention,
we may take for true against him what he has sufficiently declared.
And as good faith ought to preside in conventions, they are always
interpreted on the supposition that it actually did preside in them."
— Same, sec, 279, 80.
" The reason of the law, or the treaty, that is, the motive which
led to the making of it, and the view there proposed, is one of the
most certain means of establishing the true sense, and great atten
tion ought to be paid to it whenever it is required to explain an
o-bscure, equivocal and undetermined point, either of a law, or of a
treaty, or to make an application of them ft) a particular case. As
soon as we certainly know tke reason 'ivhich alone has determined
the will of Mm who speaks, we ought to interpret his words, and
to apply them in a manner suitable to that reason alone. Other
wise he will- be made to speak and act contrary to his intention,
and in a inanner opposite to his views.
But we ought to be very certain that we know the true and oiily
reason of the law, the promise, or the treaty. It is not here per
mitted to deliver ourselves up to vague and uncertain conjectures,
and to suppose reason and views where there are none certainly
known. If the piece in question is obscure in itself; if in order
to know the sense, there are no other means left but to search for
the reason of the act, and the views of the author ; we must then
have recourse to conjecture, and in the want of certainty, receive
for true, what is most probable. But it is a dangerous abuse to go,
without necessity, in search of reasons and uncertain views, in order
to turn, restrain, or destroy, the sense of a piece that is clear
enough in itself, and that presents nothing absurd ; this is to offend
agai>nst this incontestible maxim, that it is not permitted to inter
pret what has no need of interpretation. Much less is it permitted,
when the author of a piece has himself there ¦made known his rea
sons and motives, to attribute to him some secret reason, as tke foun
dation to interpret the piece contrary to ihe natural sense of the
terms. Though he had really the view aiirihuted to him-, if lie has
concealed it, and made knoion others, tke interpretation can only
be founded upon tkese, and not upon tke views which tke author
has not expressed ; we take for true against him wkat ke has suffi
ciently expressed." — Same, sec. 2S7.
FOURTEENTH RULE.
In addition to the foregoing particular rules of interpretation,
this general and sweeping one may be given, to wit, that we are

FIRST RULE CITED FOR SLAVERY. 205
¦never unnecessarily to impute to an instrument any intention wkat
ever wkick it would be unnatural for either reasonable or honest
¦men to entertain. Such intention can be admitted only when the
language vvill admit of no other construction.
Law is "a rule of conduct." The very idea of law, therefore,
necessarily implies the ideas of reason and right. Consequently,
every instrument, and every man, or body of men, that profess to
establish a law, impliedly assert that the law they vvould establish
is reasonable and right. The law, therefore, must, if possible, be
construed consistently with that implied assertion.
RULES CITED FOR SL.IVERY.
The rules already given (unless perhaps the fourth) take pre
cedence of all the rules that can be ofi'ered on the side of slavery;
and, taking that precedence, they decide the question without ref
erence to any others.
It may, however, be but justice to the advocates of slavery, to
state the rules relied on by them. The most important are the
following : FIRST RULE CITED FOR SLAVERY.
One rule is, that the most common and obvious sense of a word
is to be preferred.
This rule, so far as it will apply to the word free in the consti
tution, is little or nothing more than a repetition of the rule before
given, (under rule fourth,) in favor of the technical meaning of
words. It avails nothing for slavery ; and for the following
reasons :
1. In determining, in a particular case, what is " the most
common and obvious meaning" of a word, reference must be had
not alone to the sense in which the word is most frequently used
in the community, without regard to the context, or the subject to
which it is applied ; but only to its most common meaning,'when
used in a similar connection, for similar purposes, and with refer
ence to the same or similar subjects. For example. In a law
relative to vessels navigating Massachusetts Bay, or Chesapeake
Bay, we must not understand the word bay in the same sense as
when we speak of a bay horse, a bay tree, or of a man standing
at bay. Nor in a law regulating the rate of discount, or the days
of grace, on checks, notes, drafts and orders, must we understand
18

206 RULES OF INTERPRETATIO-?.
the word check in the same sense as when we speak of a man's
being checked in his career ; nor the word note in the same sense
as when we speak of notes in music, or of a man of note ; nor the
word draft in the same sense as when we speak of a ship's draft
of water, or of a sketch, plan, or drawing on paper; nor the word
order in the same sense as when we speak of a military order, or
orders in architecture, or of different orders of men, as the order
of dukes, the order of knights, the order of monks, the order of
nuns, &c., &c.
All can see that the meanings of the same words are so diflferent
when applied to different subjects, and used in different connections,
that written laws would be nothing but jargon, and this rule utterly
ridiculous, unless, in determining the most common and obvious
meaning of a word, in any particular case, reference be had to its
most common use in similar connections, and when applied to
similar subjects, and with similar objects in view.
To ascertain, then, the most " co.ramon and obvious meaning"
of the word "free," in such a connection as that in which it stands
in the constitution, we must first give it a meaning that appropri
ately describes a class, which the constitution certainly presumes
will exist under the constitution. Secondly, a meaning which the
whole " people of the United States," (slaves and all,) who are
parties to the constitution, may reasonably be presumed to have
voluntarily agreed that it should have. Thirdly, we must give it
a meaning that will make the clause in which it stands consistent
with the intentions which " the people,'' in the preamble, declare
they have in view in ordaining the constitution, viz., " to establish
justice," and " secure the blessings of liberty to themselves, (the
whole people of the United States,) and their posterity." Fourth
ly, we must give it a meaning harmonizing with, instead of con
tradicting, or creating an e.xception to, all the general principles
and provisions of the instrument. Fifthly, such a meaning must
be given to it as will make the words, " all other persons," describe
persons who are proper subjects of " representation " and of taxation
as persons. No one can deny that, at the time the constitution was
adopted, tbe most "common and obvious meaning" of the word
" free," when used by the whole people of a state or nation, in polit
ical instruments of a similar character to t.he constitution, and in
connection with such designs, principles, and provisions as are
expressed and contained in the constitution, was such as has been
claimed for it in this argument, viz., a raeaning describing citizens,

FIRST RULE CITED FOR SLAVERY. 207
or persons possessed of some political franchise, as distinguished
from aliens, or persons not possessed of the same franchise. No
body can deny this. -On the contrary, everybody who argues that
it describes free persons, as distinguished frora slaves, admits, and
is obliged to adrait, tbat this meaning is either in conflict with, or
an exception to, the professed intent, and all the general principles
and provisions of the instrument.
If the constitution had purported to have been instituted by a
part of the people, instead of the whole ; and for purposes of injus
tice and slavery, instead of "justice and liberty;" and if "the
general system of the lavvs" authorized by the constitution, had
corresponded vvith that intention, there would then have been very
good reason for saying that " the most common and obvious mean
ing" ofthe word "free," in such a connection, was to describe free
persons as distinguished from slaves. But as the constitution is,
in its terms, its professed intent, and its general principles and
provisions, directly the opposite of all this ; and as the word " free "
has a " common and obvious meaning,'' that accords with these terms,
intent, principles, and provisions, its most " common and obvious
meaning," in such a connection, is just as clearly opposite to what
it would have been in the other connection, as its most common
and obvious meaning, in the other connection, would be opposite
to the meaning claimed for it in this. This position must either
be admitted, or else it must be denied that the connection in which
a word stands has anything to do with fixing its most " common
and obvious meaning."*
* " Story says, " Are we at liberty, upon any principles of reason or common
sense, to adopt a restrictive meaning which will defeat an avowed object of the
constitution, when another equally natural, and more appropriate to the subject, is
before us?" — 1 Story's Comm., p. 445.
Dane says, " With regard to the different parts of a statute, there is one general
rule of construction ; that is, the construction of each and every part must be made
on a full view of tbe whole statute ; and every part must have force and effect, if
possible ; for the meaning of every part is found in its connection with other
parts." — 6 Dane, 598.
Vatiel says, " Expressions have a force, and sometimes even an entirely different
signification, according to the occasion, their connection, and their relation to other
words. The connection and train of the discourse is also another source of inter
pretation. We ought to consider the whole discourse together, in order perfectly
to conceive the sense of it, and to give to each expression, not so much the signifi
cation it may receive in itself, as that it ought to have from the thread and spirit
ofthe discourse. This is the maxim ofthe Roman law, Incivile est, nisi tota lege
perspecta, ¦u'na aliqua particula ejus proposita, judicare, vel respondere." (It is
improper to judge of, or answer to, any one particular proposed in a law, unless the
whole law be thoroughly examined.) — B. 2, ch. 17,-sec. 285.
Also, " The connection and relation of things themselves, serve also to discover

808 RULES OF INTERPRETATION.
Again. It has already been shown that the most common, and
the nearly or quite universal meaning, given to the word /ree,
both in this country and in England, when used in laws of a fun
damental character, like the constitution, or, indeed, in any other
• laws, (for the purpose of designating one person, as distinguished
frora another living under the same laws,) was not to designate a
free person, as distinguished from a slave, but to distinguish a
citizen, or person possessed of some franchise, as distinguished
from aliens, or persons not possessed of the same franchise. The
authority of this rule, then, so far as it regards the most " com
mon" meaning of this word in the law, is entirely in favor of the
argument for freedom, instead ofthe argument for slavery.
2. But the rule fails to aid slavery for another reason. As has
before been remarked, the word "free" is seldom or never used,
even in common parlance, as the correlative of slaves, unless
when applied to colored persons. A colored person, not a slave,
is called a "free colored person." But the white people of the
south are never, in common parlance, designated as "free per
sons," but as white persons. A slaveholder would deem it an
insuh to be designated as a "free person," that is, using the word
free in a sense correlative with slavery, because such a designa
tion would naturally imply the possibility oi his being a slave. It
would naturally imply that he belonged to a race that was some
times enslaved. Such an implication being derogatory to his race,
would be derogatory to himself Hence, where two races live
together, the one as masters, the other as slaves, the superior race
never habitually designate themselves as the " free persons," but
by the appropriate name of their race, thus avoiding the implica
tion that they can be made slaves.
Thus we find, that the use of the word " free" loas " common,"

and establish the true sense of a treaty, or of any other piece. The interpretation
ought to be made in such a manner that aU the parts appear consonant to each
other, that what follows agree with what went before ; at least, if it do not mani
festly appear, that, by the last clauses, something is changed that went before." —
Same, sec. 286.
The way the advocates of slavery proceed in interpreting the constitution, is this.
Instead of judging of the meaning of the word free by its connection with the rest
of the instrument, they first separate that word entirely from all the rest of tbe instru
ment ; then, contrary to all legal rules, give it the worst meaning it is under any
circumstances capable of ; then bring it back into the instrument ; make it the
ruling word of the instrument ; and finally cut down all the rest of the instrument
so as to make it conform to the meaning thus arbitrarily and illegally given to this
one word free.

FIRST RULE CITED FOK SLAVERY. 209
tn the law, to describe those who were citizens, but it was not
" common," either in the law, or in common parlance, for describ
ing the white people of the south, as distinguished from their
slaves. The rule, then, that requires the most common and ob- .
vious meaning of the word to be preferred, wholly fails to give to
the word free, as used in the constitution, a meaning correlative
with slaves.
3. But in point of fact, the rule that requires us to prefer the
most " common and obvious meaning,'' is of a wholly subordinate
and unauthoritative character, when compared with the rules
before laid down, except so far as it is necessary to be observed in
order to preserve a reasonable connection and congruity of ideas,
and prevent the laws from degenerating into nonsense. Further
than this, it has no authority to give an unjust meaning to a word
that admits of a just one, or to give to a word a meaning incon
sistent with the preamble, the general principles, or any other pro
visions, of an instrument. In short, all the rules previously laid
down, (unless, perhaps, the fourth, which is nearly or quite synon
ymous with this,) take precedence of this, and this is of no conse
quence, in coraparison with them, (except as before mentioned,)
when they come in conflict. In this case, however, of the word
free, there is no conflict. And the same may be said of the
words, " held to service or labor," and " the importation of per
sons," Neither of these tvvo latter forms of expression had prob
ably ever been used in the country, either in law or in common
parlance, to designate slaves or slavery. Certainly there had
been no common use of them for that purpose ; and such, there
fore, cannot be said to be either their common or their obvious
meaning. But even if such were their common and obvious
meaning, it would not avail against the rule in favor of liberty or
right, or any of the other rules before laid down.
That the other rules take precedence of this, is proved by the
fact, that otherwise those rules could never have had an existence.
If this rule took precedence of those, it would invariably settle the
question ; no other rule of interpretation would ever be required ;
because, it is not a supposable case, that there can ever be tvvo
meanings, without one being more common or obvious than the
other. Consequently, there could never be any opportunity to
apply the other rules, and they, therefore, could never have had
an existence.
If this rule took precedence of the others, all legal interpreta-
18*

210 RULES OF INTERPRETATION-
tion would be resolved into the simple matter of determining
which was the most common and obvious meaning of words in
particular connections. All questions of written law would thus
. be resolved into a single question of fact ; and that question of
fact would have to be decided by a judge, instead of a jury.
And a very slight preponderance of evidence, as to the senses in
which words are mosi commonly understood, would often have to
determine the question. The judge, too, would have to be pre
sumed omniscient as to the most common and obvious meaning of
words, as used by the people at large, each one of whom is known
to often use words in different senses, and with different shades
of meaning, from all others. And the slightest preponderance of
evidence on this point, that should appear to the judge's mind
alone, would be sufficient to overrule all those palpable principles
of liberty, justice, right, and reason, which the people at large,
(who cannot reasonably be presumed to be very critical or learned
plilologists,) have in view in establishing government and laws.
In short, courts, acting on such a principle, would in practice be
little or nothing more than philological, instead of legal, tri
bunals. Government and laws being established by the people at large,
not as philologists, but as plain men, seeking only the preserva
tion of their rights, the words they use must be made to square
with that end, if possible, instead of their rights being sacrificed to
nice philological criticisms, to which the people are strangers.
Not that, in interpreting written laws, the plain and universal
principles of philology are to be violated, for the sake of making
the laws conform to justice ; for that would be equivalent to abol
ishing all written laws, and abolishing the use of words as a means
of describing the laws. But the principle is, that great latitude
must be allowed in matters of philology, in accommodation of the
various senses in which different men use and understand the
same word in the same circumstances ; while a severe and rigid
adherence is required to principles of natural right, which are far
more certain in their nature, and in regard to which all men are
presumed to be agreed, and which all are presumed to have in
view in the establishment of governnaent and laws. It is much
more reasonable to suppose — because the fact itself is much more
common — that men differ as to the raeaning of words, than that
they differ as to the nrinciples which they try to express by their
words.

FIRST RULE CITED FOR SLAVERY. 211
No two men, in drawing up the same law, would do it in the
same words, owing to their different tastes, capacities, and habits,
in the use of language. And yet a law, when written, must, in
theory, mean the same to all minds. This necessity of having
the law mean the same to all minds, imposes upon courts the
necessity of disregarding men's different tastes and habits in the
matter of words, and of construing the words of all laws so as to
make thera conform as nearly as possible to some general princi
ple, which all men are presumed to have in view, and in regard to
which all are presumed to be agreed. And that general principle
is justice.
The result, then, is, that justice and men's rights — the preserva
tion of which is the great Object of all the government and laws
to vvhich it is a supposable case that the whole people can have
agreed — must not be staked on the decision of such a nice, friv
olous, and uncertain point, as is the one, whether this or that
meaning of a word is the more common one in the community, or
the more obvious one to the generality of minds, in particular
cases, when, in fact, either meaning is grammatically correct, and
appropriate to the subject. Instead of such folly and suicide, any
meaning, that is consonant to reason in the connection in which the
word stands, and that is consistent with justice, and is known and
received by society, though less common or obvious than some
others, must be adopted, rather than justice be sacrificed, and the
whole object of the people in establishing the government be
defeated. So great is the disagreement, even among scholars and lexicog
raphers, as to the meaning of words, that it would be plainly
impossible for the most acute scholars to agree upon a code of
writlen laws, having in view the preservation of their natural
rights, unless they should also expressly or impliedly agree, that,
out of regard to the different senses in which the different indi
viduals of their number might have understood the language in
which the laws were written, the courts, in construing those
laws, should be allowed very great latitude whenever it should be
necessary, for the purpose of finding a sense consistent with justice.
And if this latitude vvould be required in construing an instrument
agreed to only by scholars and critics, how much more is it
required in construing an instrument agreed to by mankind at
large. This rule, then, that orefers the most common and obvious

212 RULES OF INTERPRETATION.
meaning of words, is a very insignificant and unimportant one,
compared with the previous ones; and it can legally be resorted to,
only where the prior ones, (unless, perhaps, the fourth,) are either
inapplicable to, or have failed to determine the question; as, for
instance, in cases where there is involved no question of right or
wrong, or of consistency or inconsistency with the preamble, the
general principles, or other particular provisions of an instrument ;
where nothing more than questions of expediency or convenience
are concerned. And even a clear case of serious inconvenience
only, is sufficient to set aside the rule, unless the language be very
explicit.* . This rule, in favor of the most common and obvious meaning
of words, has never, so far as I am aware, been laid down as deci
sive, by the Supreme Court of the United States, in any cases
where any question of right, consistency, or of great and manifest
convenience, was involved. I think it has generally been cited as ¦
authoritative, in constitutional questions, only where the doubt
was, w4iether a particular constitutional power had been vested in
the general government, or reserved to the states. In such cases,
where the power was admitted to be in one government or the
other, and where no question of right, of consistency vvith other
parts of the instrument, or of manifest convenience, was involved,
the court, very properly assuming that the power might be as
rightfully vested in one government as in the other, at the dis
cretion of the people, have held that the doubt should be deter
mined by taking the language of the constitution to have been
used in its most common and obvious sense. But such a de
cision of a mere question as to which of two governments is the
depository of a particular power, which is conceded to be vested

* No statute shall be construed in such manner as to be inconvenient, or against
reason." — 7 Bacon's Abridg., 465.
" Where the construction of a statute is doubtful, an argument from convenience
will have weight." — 3 Mass. ,221.
Ch. J. Shaw says, " The argument from jnconvenience may have considerable
weight upon a question of \!onstruction, where the language is doubtful ; it is not
to be presumed, upon doubtful language, that the legislature intended to establish
a rule of action, which would be attended with inconvenience." — 11 Pickering,
490. Ch. J. Abbott says, " An exposition of these statutes, pregnant with so mucb
inconvenience, ought not to be made, if they will admit of any other reasonable
construction."— 3 Barmvell, dj- A, 271.
" The argument from inconvenience is very forcible in the law, as oflen hath
been observed."— Coke Lit., 383, u,. ¦note.

SECOND RULE CITED FOR SLAVERY. 213
in one or the other, has nothing to do with cases where a question
of right or wrong is involved, or of consistency with other parts of
the instruraent, or even where a serious and clear question of
inconvenience is concerned.
If, however, that court have, at any time, laid greater stress
upon the rule, they are not sustained, either by the reason of
things, or by the practice of other courts ; nor are they consistent
or uniform in the observance of it themselves.*

SECOND RULE CITED FOR SLAVERY.
A second rule of interpretation, relied upon by the advocates of
slavery, is that where laws are ambiguous, resort may be had to
exterior circumstances, history, &c., to discover the probable inten
tion of the law-givers.
But this is not an universal rule, as has before been shown,
(under rule seventh,) and has no application to a question that can
be settled by the rules already laid down, applicable to the words
tliemselves. It is evident that we cannot go out of the words of a
law, to find its meaning, until all the rules applicable to its words
have been exhausted. To go out of a law to find the meaning of
one of its words, when a meaning, and a good meaning, can be
found in the law, is assuming gratuitously that the law is incom
plete ; that it has been but partially written ; that, in reality, it is
not a law, but only a part of a law ; and that we have a right to
make any additions to it that we please.
Again. When we go out of the words of the law, we necessa
rily go into the regions of conjecture. We therefore necessarily

* The Supreme Court United States say ; " It is undoubtedly a well-established
principle in the exposition of statutes, that every part is to be considered, and the
intention of the legislature to be extracted from the whole. It is also true, that
where g-reoH inconvenience will result from a particular construction, that construc
tion is to lie avoid«d, unless the meamng of the legislature be plain, in which case
it must be obeyed." — 2 Cranch, 358.
" The natural import of the words of any legislative act, according to the com
mon use of them, when applied to the subject matter of the act, is to be considered
as expressing the intention of the legislature ; unless fhe intention, so resulting
from the ordinary import of the words, be repugnant to sound, acknowledged
principles of national policy. And if that intention be repugnant to sueh principles
of national policy, then Ihe import ofthe words ought io be enlarged or restrained,
so thai it ¦may comport wiih tlwse prinAiiples, unless the intention of the legislature
ie clearly and ¦manifestly repugnant to ihem." — Opinion of the Justices, inctud-
ing Parsons ; 7 Mass., 523.

214 RULES OF INTERPRETATION.
sacrifice cettainty, which is one of the vital principles of the law.
This cannot be done for any bad purpose. It can only be done to
save rights, (not to accomplish wrongs,) depending on the efficacy
of tho law.
To go out of a law to find a bad meaning, when a good meaning
can be found in the law, is also to sacrifice rig-Af, the other vital
principle of law. So that both certainty and right would be sacri
ficed by going out of the constitution to .find the meaning, or
application, of the word /ree ; since an appropriate and good
meaning is found in the instrument itself.
Further. It has before been shown, (under rule seventh,) that a
word is not, legally speaking, " ambiguous," vvhen the only ques
tion is between a just and an unjust meaning ; because the rule,
which requires the right to b'e preferred to the wrong, being uni
form and imperative, makes the meaning always and absolutely
certain ; and thus prevents the ambiguity that might otherwise
have existed.
It is true that, in a certain sense, such a word may be called
" ambiguous," but not in a legal sense. Almost every word that
is used in writing laws, might be called ambiguous, if we were
allowed to lose sight of the fact, or unnecessarily abandon the
presumption, that the law is intended for purposes of justice and
liberty. But this point has been so fully discussed in the former part of
this chapter, (under rule seventh,) that it need notnow be discussed
at length.
It is not to be forgotten, however, that even if we go out of the
constitution to find the meaning of the word /ree, and resort to all
the historical testimony that is of a nature to be admissitle at all,
we shall still be obliged to put the same construction upon it as
though we take the meaning presented by the constitution itself.
The use of the word in all laws of a similar character, and even
of a dissimilar character, to the constitution, fixes this raeaning.
The principles of liberty, prevailing in the country generally, as
evidenced by the declaration of independence, and the several State
constitutions, and constituting at least the paramount, the prepon
derating, law, in every State of the Union, require the same
meaning to be given to the word.
The fact, that this prevailing principle of liberty, or this general
principle of law, was, at that tirae, violated by a small portion,
(perhaps one fortieth,) of the community, (the slaveholders,) fur-

SECOND RULE CITED FOR SLAVERY. 215
nishes no legal evidence against this construction ; because the
constitution, like every other law, presumes everybody willing to
do justice, unless the contrary explicitly appear in the instrument
itself. This is a reasonable presumption, both in fact and in lav/,
as has before been suggested, (under rule sixth.) What court
ever laid down the rule that an instrument was " ambiguous,'' or
that an unjust meaning must be given to it, because its just mean
ing was more just than the parties, or some few of the parties,
could reasonably be presumed to have intended the instrument
shoiaid be ? If this idea were admissible, as a rule of interpretation,
all our most just and equitable laws are liable to be held ambiguous,
and to have an unjust construction put upon them, (if their words
will admit of it,) on the ground of their presenl construction being
more just than some portion of the community, for which they
were made, could be presumed to desire them to be. The slave
holders, then, must be pres^amed to have been willing to do justice
to their slaves, if the language of the constitution implies it,
v/hether they were really willing or not No unwillingness to do
justice can be presumed on the part of the slaveholders, any more
than -on the part of any oth-er of the parties to the constitution, as
an argument against an interpretation consistent with liberty.
Again. The real' or presumed intentions of that particular portion
©f the " people,'' who were slaveholders, are of no more legal con
sequence towards settling ambiguities iri the constitution, than are
the real or presumed intentions of th« same number of slaves ; foe
taoth slaves- and slaveholders, as has been shown, (under rule
sixth,) were, in law, equally parties to the constitution. Now,
there were probably. five or ten times as many slaves as slaveholders.
Their intentions, then, which can be presumed to have been only
for liberty, overbalance ail the intentions of the slaveholders. The
intentions of all the non-slaveholders, both north and south, must
also be thrown into the same scale with the intentions of the slaves
— the scale of liberty.
But further. The intentions of all parties, slaves, slaveholders,
and non-slaveholders, throughout the country, must be presumed
to have been precisely alike, because, in theory, they all agreed to
the same instrument. There were, then, thirty, forty, or fifty,
who must be presuraed to have intended liberty, where there was
but one that intended slavery. If, then, the intentions, principles,
and interests, of overwhelming majorities of " the people," whc
" ordained and established the constitution," are to have any

216 RULES OF INTERPRETATION.
weight in settling ambiguities in it, the decision must be in favor
of liberty.*
But it will be said that, in opposition to this current of testimony-,
furnished by the laws and known principles of the nation at large,
we have direct historical evidence of the intentions of particular
individuals, as expressed by themselves at or about the time.
One answer to this argument is, that we have no legal evidence
whatever of any such intentions having been expressed by a single
individual in the whole nation.
Another answer is, that we have no authentic historical evidence
of such intentions having been expressed by so many as five hun
dred individuals. If there be such evidence, where is it? and
wko were ihe individuals ? Probably ¦not even one hundred such
can be named. And yet this is all the evidence that is to be offset
against the intentions of the whole " people of the United States,"
as expressed in the constitution itself, and in the general current
of their then existing laws.
It is the constant effort of the advocates of slavery, to make the
constitutionality of slavery a historical question, instead of a legal
one. In pursuance of this design, they are continually citing the
opinions, or intentions, of Mr. A, Mr. B, and Mr. C, as handed
down to us by some history or other ; as if the opinions and inten
tions of these men were to be taken as the opinions and intentions
of the whole people of the United States ; and as if the irrespon
sible statements of historians were to be substituted for the consti
tution. If the people of this country have ever declared that these
fugitive and irresponsible histories of the intentions and sayings
of single individuals here and there, shall constitute the constitu
tional law of the country, be it so ; but let as be consistent, burn
* There is one short and decisive answer to all the pretence that the slaveholders
cannot be presumed to have agreed to the constitution, if it be inconsistent with
slavery ; and that is, that if the slaveholders cannot be presumed to have agreed to
it, then they, and not the slaves, must be presumed to have been no parties to it,
and must therefore be excluded from all rights in it. The slaves can certaiBly be
presumed to have agreed to it, if it gives them liberty. And the instrument must
be presumed to have been made by and for those who eould reasonably agree to it.
If, therefore, any body can be excluded from all rights in it, on the ground that
they cannot be presumed to have agreed to such an instrument as it really is, it
must be the slaveholders themselves. Independently of this presumption, there is
just as much authority, in the constitution itself, for excluding slaveholders, as foF
excluding the slaves, from all rights in it. And as the skives are some ten or. fifteea
times more numerous than the slaveholders, it is ten or fifteen times more import
^tant, on legal principles, that they be included among the patties to the ceastitu
tion, than that the slaveholders should be.

THIRD RULE CITED FOR SLAVERY. 217
the constitution, and depend entirely upon history. It is nothing
but folly, and fraud, and perjury, to pretend to maintain, and swear
to support, the constitution, and at the same time get our constitu
tional law from these irresponsible sources.
If every man in the country, at the tirae the constitution vvas
adopted, had e.xpressed the intention to legalize slavery, and that
fact were historically well authenticated, it would be of no legal
importance whatever — and why? Simply because such external
expressions vvould be no part of the instrument itself
Suppose a man sign a note for the payment of money, but at
the time of signing it declare that it is not his intention to pay it,
that he does not sign the note with such an intention, and that he
never will pay it. Do all these declarations alter the legal char
acter of the note itself, or his legal obligation to pay ? Not at all
— and why ? Because these declarations are no part of that par
ticular promise vvhich he has expressed by signing the note. So
if every man, woman, and child in the Union, at the time of
adopting the constitution, had declared that it was their intention
to sanction slavery, such declarations would all have been but idle
wind — and why? Because they are no part of that particular
instrument, which they have said shall be the supreme law of the
land-. If they wish to legalize slavery, they must say so in the
constitution, instead of saying so out of it. By adopting the con
stitution, they say just vvhat, and only what, the constitution itself
expresses. THIRD RULE CITED FOR SLAVERY.
A third rule of interpretation, resorted to for the support of
slavery, is the maxim that " Usage is the best interpreter of
laws." If by this rule be meant only that the meaning to be applied to
a word in a particular case ought to be the same that has' usually
been applied to it in other cases of a similar nature, we can, of
course, hnve no objection to the application of the rule to the word
" free ;" for usage, as has already been shown, will fix upon it a
meaning other than as the correlative of slaves.
Or if by this rule be meant that all laws must be interpreted
according to those rules of interpretation which usage has estab
lished, that is all that the advocates of liberty can desire, in the
interpretation of the constitutit)n.
Bul if the rule requires that after a particular law has once,
19

218 RULES OF INTEEPEETATION.
twice, or any number of times, been adjudicated upon, it must
always be construed as it always has been, the rule is ridiculous;
it makes the interpretation given to a law by the courts superior
to the law itself; because the law had a meaning of its own before
any "usage" had obtained under it, or any judicial construction
had been given to it.
It is the original meaning of the constitution itself that we are
now seeking for ; the meaning which the courts were bound to put
upon it from the beginning ; not the meaning they actually have
put upon it. We wish to determine whether the meaning which
they have hitherto put upon it be correct. To settle this point,
we must go back to the rules applicable to the instrument itself,
before any judicial constructions had been given to it. All con
structions put upon it by the courts or the government, since the
instrument was adopted, come too late to be of any avail in set
tling the meaning the instrument had at the time it was adopted
— certainly unless it be impossible to settle its original meaning
by any rules applicable to the instrument itself.
We charge the courts wilh having misinterpreted the instrument
from the beginning ; with having violated the rules that were
applicable to the instrument before any practice or usage had ob
tained under it. This charge is not to be answered by saying that
the courts have interpreted it as they have, and that that interpreta
tion is now binding, on the ground of usage, whether it were orig
inally right or wrong. The constitution itself is the same now
that it was the moment it was adopted. It cannot have been
altered by all the false interpretations that may have been put
upon it.
If this rule were to be applied in this manner to the constitution,
it would deserve to be regarded as a mere device of the courts to
maintain their own reputations for infallibility, and uphold the
usurpations of the government on which they are dependent,
rather than a means of ascertaining the real character of the con
stitution.* * In case Ex parte Bollman and Swartout, Justice Johnson, of the Sup. Court
U. S., said,—
" I am far, very far, from denying the general authority of adjudications. Uni
formity in decisions is often as important as their abstract justice. (By no means.)
But I deny that a court is precluded from the right, or exempted from the necessity,
of exajnining into the correctness or consistency of its decisions, or those of any
other tribunal. If I need precedent to support me in this doctrine, I will cite the
example of tbis court, (Sup. Court U. S.) which, in the case of the United States
v. Moore, February, 1805, acknowledged that in the case of the United States vs.

FOURTH RULE CITED FOR SLAVERY. 219
But perhaps it will be said, that by usage is meant the practice
of the people. It would be a sufficient answer to this ground to
say, that usage, against law an4 against right, can neither abolish
nor change the law, in any case. And usage is worth nothing in
the e.xposition of a law, except where the law is so uncertain that
its meaning cannot be settled by the rules applicable to its words.
Furtherraore, it is only ancient usage that is, in any case, of any
considerable importance.
This whole matter of usage is well disposed of in the note.*

FOURTH RULE CITED FOR SLAVERY.
A fourth rule of interpretation, relied on for the support of
slavery, is tkat the words of a law must be construed to subserve
the intentions of the legislature. So also the words of a contract

Sims, February, 1803, it had exercised a jurisdiction it did not possess. Strange
indeed would he the doctrine that an inadvertency, once committed by a court, shall
ever after impose on it the necessity of persisting in its error. A case that cannot
be tested by principle is not law, and in a thousand instances have such eases been
declared so by courts of justice." — 4 Cranch, 103.
" Nullius hominis a-pithoritas tantum apud vos valere debet, ut meliora non se-
queremur si quis atlulerit." (The authority of no man ought to weigh so much
with us, that if auy one has offered anything better, we may not follow it.) — Coke
Lit., 383, a. note.
* In Vaughn's Reports, p. 169, 70, the court say, —
" The second objection is, that the king's officers by usage have had in several
kings' times the duties of tonnage and poundage from wrecks.
"1. We desired to see ancient precedents of that usage, but could see but one iu
the time of King James, and some in the time of the last king ; which are so new
that they are not considerable, (not worthy to be considered.)
"2. Where the penning of a statute is dubious, long usage is a just medium to
expound it by ; for jus et norma loquendi (the rule and law of speech) is governed
by usage. And the meaning of things spoken or written must be, as it hath con
stantly been received to be by common acceptation.
" But if usage hath been against the obvious meaning of an act of parliament,
by the vulgar and common acceptation of the words, then it is rather an oppression
of those concerned, than an exposition of the act, especially as the usage may be
circumstanced. " As, for instance, the customers seize a man's goods, under pretence of a duty
against law, and thereby deprive him of the use of his goods, until he regains
them by law, which must he by engaging in a suit with the king, rather than do
so he is content to pay what is demanded for the king. By this usage all the
goods in the land may be charged with the duties of tonnage and poundage ; for
when the concern is not great, most men (if put to it) will rather pay^a little
wrongfully, than free themselves from it overchargeably.
" And in the present case, the genuine meaning of the words and purpose of the
act, is not according to the pretended usage, but against it, as hath been shewed j
therefore usage in this case weighs not."

220 RULES OF INTERPRETATION.
must be construed to subserve the intentions of the parties. And
the constitution must be construed to subserve the intentions of
" the people of the United States."
Those who quote this rule in favor of slavery, assume that it
vvas the intention of " the people of the United States " to sanction
slavery ; and then labor to construe all its words so as to make
them conform to that assumption.
But the rule does not allow of any such assumption. It does
not supersede, or at all infringe, the rule that " the intention of
the legislature is lo be collected from the words they have used to
convey it."* This last rule is obviously indispensable to make
written laws of any value ; and it is one which the very existence
of written laws proves to be inflexible ; for if the intentions could
be assumed independently of the words, the words would be of no
use, and the laws of course would not be written.
Nor does this rule, that words are to be construed so as to sub
serve intentions, supersede, or at all infringe, the rule, that the
intentions of the legislature are to be taken to be just what their
words express, whether such be really their intentions or not.t
* The Supreme Court United States say, " The intention of the legislature is
to be searched for in the words which the legislature has employed to convey it."
¦ - 7 Cranch, 60.
Also, " The intention of the instrument (the constitution) must prevail ; this
intention must be collected from its words." — 12 Wheaton, 332.
+ Story says, " We must take it to be true, that the legislature intend precisely
what they say." — 1 Story's C. C. Rep. ,653.
Vattel says, •' Much less is it permitted, when the author of a piece has himself
there made known his reasons and motives, to attribute to him some secret reason,
as the foundation to interpret the piece contrary to the natural sense of the terms.
Though he really had the view attributed to him, if he has concealed it, and made
known others, the interpretation can only be founded upon these, {which he has
m.ade knoion,) and not upon the views which the author has not expressed ; we take
for true against him what he has sufilcientty declared." — B. 2, eh. 17, see. 257.
Ratherforih says, " The safest ground for us to stand upon, is what the writer
himself affords us ; when the legislator himself has plainly declared the reason
(intention) ofthe law in the body of it, we may argue from thence with certainty."
— B. 2, ch. 7, p. 330.
Rutherforth also says, " A promise, or contract, or a will, gives us a right to what
ever the promiser, the contractor, or the testator, designed or intended to make ours.
But his design or intention, if it is considered merely as an act of his mind, cannot
be known to anyone besides himself. When, therefore, we speak of his design or
intention as the measure of our claim, we must necessarily be understood to mean
the design or intention which he has made known or expressed by some outward
mark ; hecause, a design or intention which does not appear, can have no more
effect, of can no more produce a claim, than a design or intention which does not
exist. " la Uke manner, the obligations that are produced by the civil laws of our coun-

FOURTH RULE CITED FOR SLAVEEY. 221
The two rules, that " words must be construed to subserve
intentions," and that " intentions must be collected from the words,"
may, at first view, appear to conflict with each other. There is,
however, no conflict between them. The rule, that words must be
construed to subserve intentions, applies only to ambiguous words ;
to those words which, on account of their ambiguity, need to be
construed ;* and it assuraes that the intentions of the law have
been made known by other words, that are not ambiguous. The
whole meaning of the rule, then, is, ihat the intentions of ambigu
ous words must be construed in conformity with the intentions
expressed in those words that are explicit.^
Where no intentions are explicitly revealed, the court will pre
sume the best intentions of which the words, taken as a whole, are
capable ; agreeably to the rule cited from the Supreme Court of
Massachusetts, viz., " It is always to be presumed that the legisla-
tare intend the most beneficial construction of their acts, when the
design of them is not apparent." — 4 Mass., 5-37.
This rule, then, that the ambiguous vvords of an instrument
must be construed to subserve the intentions expressed by other
words, that are explicit, requires that the arabiguous words in the
constitution (ifthere are anysuch) be construed in favor of liberty,
instead of slavery.
try arise from the intention of the legislator ; not merely as this intention is an act
of the mind, but as it is declared or expressed by some outward sign or mark,
which makes it known to us. For the intention of the legislator, whilst he keeps
it to himself, produces no effect, and is of no more account than if he had no such
intention. Where we have no knowledge, we can be under no obligation. We
cannot, therefore, be obliged to comply with his will, where we do not know what
his will is. And we can no otherwise know what his will is, than by means of
some outward sign or mark, by which this will is expressed or declared." — B. 2,
chap. 7, p. 307.
'^ All rules of construction apply only to words thai need to be consirued ; to those
which are capable of more than one meaning, or of a more extended or restricted
sense, and whose meanings in the law are therefore uncertain. Those words whose
meanings are plain, certain, and precise, are not allowed to be construed at all. It
is a fundamental maxim, as before cited, (under rule thirteenth,) that it is not ad
missible to interpret what needs no interpretation.
t Vattel says, " If he wbo has expressed himself in an obscure or equivocal man
ner, has spoken elsewhere more clearly on the same subject, he is the best inter
preter of himself. We ought to interpret his obscure or vague expressions in such
a manner that they may agree ivith those terms that are clear and withoui ambi
guity, which he has used elsewhere, either in the sa^me treaty or in some other ofthe
like kind." — B. 2, eh. 17, sec. 284.
And this is an universal rule with courts, to interpret the ambiguous words of
an instrument by those that are explicit.
19*

222 RULES OF INTERPRETATION.
Thus have been stated and examined all the rules of interpreta
tion, (with the exception of one, to be named hereafter,) that occur
to me as being of any moment in this discussion. And I think
the soundness, and permanent authority of those that make for
liberty and justice, if indeed they do not all make for liberty and
justice, have been shown.
But of the reason and authority of all these rules, the reader
must of necessity judge for hiraself; for their whole authority rests
on their reason, and on usage, and not on any statute or constitu
tion enacting them.* And ihe way' for. the reader to judge of
their soundness, is, for him to judge loketker tkey are the rules by
wh'ich he wishes his own contracts, and the laws on whick ke Mm
self reives for protection, to be construed. Wkether, in fact, konest
contracts, honest laws, and honest constitutions, can be either agreed
upon, or sustained, by mankind, if they are to be construed on any
other principles tkan those contained in these rules.
If he shall decide these questions in favor of the rules, he may
then properly consider further, that these were the received rules
of legal interpretation at the tirae the constitution was adopted, and
had been for centuries. That they had doubtless been the received
rules of 'interpretation from the time that laws and contracts were
first formed among men; inasmuch as they are such as alone can
secure men's rights under their honest contracts, and under honest
laws, and inasmuch also as they are such as unprofessional and
unlearned men naturally act upon, under the dictates of common
sense, and common honesty.
If it now be still objected that the people, or any portion of
them, did not intend what the constitution, interpreted by the pre
ceding rules, expresses, the answer is this.
We must admit that the constitution, of itself, independently of
the actual intentions of tke people, expresses some certain, fixed,
definite, and legal intentions ; else the people themselves vvould
express no intentions by agreeing to it. The instrument would,
in fact, contain nothing that the people could agree to. Agreeing
to an instrument that had no meaning of its own, would only be
agreeing to nothing.

=* It will not do to take these, or any other rules, on trust from courts ; for courts,
although they more generally disregard, or keep out of sight, all rules which stand
in the way of any unlawful decisions which they are determined to make, can yet
not very unfrequently lay down false rules to accomplish their purposes. For these
reasons, only those of their rules that are plainly adapted lo promote certainty and
justice, are to be relied on.

EULES OF INTERPRETATION. 223
The constitution, then, must be admitted to have a meaning of
its own, independently of the actual intentions of the people. And
if it be admitted that the constitution has a meaning of its own, the
question arises, What is that meaning? And the only answer that
can be given is, that it can be no other than the meaning which
its words, interpreted by sound legal rules of interpretation, express.
That, and that alone, is the meaning of the constitution. And
whether the people who adopted the constitution really meant the
same things vvhich the constitution means, is a matter which they
were bound to settle, each individual with himself, before he agreed
to the instrument ; and it is therefore one with which we have now
nothing to do. We can only take it for granted that the people
intended what the constitution expresses, because, by adopting the
instrument as their own, they declared that their intentions corres
ponded with those of the instrument. The abstract intentions, or
meaning, of the instrument itself, then, is all that we have now any
occasion to ascertain. And this we have endeavored to do, by the
application of the foregoing rules of interpretation.
It is perfectly idle, fraudulent, and futile, to say that the people
did not agree to the instrument in the sense which these rules fix
upon it ; for if they have not agreed to it in that sense, they have
not agreed to it at all. The instrument itself, as a legal instru
ment, has no other sense, in which the people could agree to it.
And if the people have not adopted it in that sense, they have not
yet adopted the constitution; and it is not now, and never has
been, the law of the land.
There would be just as much reason in saying that a man who
signs a note for the payment of five hundred dollars, does not sign
it in the legal sense ofthe note, but only in the sense that he will
not pay, instead of the sense that he will pay, so much money, as
there is in saying that the people did not agree to the constitution
in its legal sense, but only in some other sense, which slaveholders,
pirates, and thieves might afterwards choose to put upon it.
Besides, does any one deny that all the rest of the constitution,
except vvhat is claimed for slavery, was agreed- to in the sense
vvhich these rules put upon it ? No decent man will make such a
denial. Well, then, did not the people intend that all parts of the
sarae instrument should be construed by the same rules ? Or d«
the advocates of slavery seriously claim that three or four millions
of people, thinly scattered over thirteen states, and having no
opportunity for concert, except by simply saying yea, or nay, to the

224 RULES OP INTERPRETATION.
instrument presented to them, did, nevertheless, at the time of
agreeing to the instrument, agree, also, by means of some myste*
rious, invisible, miraculous intercourse, that the slave clauses, as
they are called, should be construed by directly opposite rules from
all the rest of the instrument ? Even if they did so agree, such
agreement would be no part of the constitution; but if they did
not, they certainly did not agree to sanction slavery. No matier
what any, or all, of them said before, or after, or otherwise ihan by,
the adoption of the instrument. What they all said by the single
act of adoption, is all that had any effect in establishing the con
stitutional law ofthe country.
Certainly, the whole instrument must be construed by uniform
rules of interpretation. If, then, the slave clauses, as they are
called, are construed so as to sanction slavery, all the rest of the
instrument must be construed to sanction all possible iniquity and
injustice of which its words can be made to insinuate a sanction.
More than this. " Tke laws passed in pursuarice of the constitu
tion," must of course be construed by the same rules as the consti
tution itself If, then, the constitution is to be construed as ad
versely as possible to. liberty and justice, all " the laws passed in
pursuance of it" must be construed in the same manner. Such
are the necessary results of the arguments for slavery.
Nothing can well be more absurd than the attempt to set up the
real or pretended intentions of a few individuals, in opposition to
the legal meaning of the instrument the whole people have adopt
ed, and the presumed intentions of every individual vvho was a
party to it. Probably no two men, framers, adopters, or any others,
ever had the same intentions as to the whole instrument; and
probably no two ever will. If, then, one man's actual intentions
are of any avail against the legal meaning of the instrument, and
against his presuraed intentions, any and every other man's actual
intentions are of equal importance ; and consequently, in order to
sustain this theory of carrying into eftect men's actual intentions,
we must make as many different constitutions out of this one
instrument, as there were, are, or may be, different individuals
who were, are, or may be, parties to it.
But this is not all. It is probable that, as matter of fact, four
fifths, and, not unlikely, nine tenths, of all those who were legally
parties to the constitution, never even read the instrument, or" had
any definite idea or intention at all in regard to the relation it was
to bear, either to slavery, or to jny other subject. Every inhab-

EULES OF INTERPRETATION. 225
itant of the country, man, woman, and child, was legally a party to
the constitution, else they would not have been bound, by it. Yet
how few of them read it, or formed any definite idea of its charac
ter, or had any definite intentions about it. Nevertheless, they
are all presumed to have read it, understood it, agreed to it, and to
have intended just what the instrument legally means, as well in
regard to slavery as in regard to all other matters. And this pre-
sumed intention of each individual, who kad no actual intention at
all, is of as much weight in law, as the actual intention of any of
those individuals, whose real or pretended intentions have been so
much trumpeted to the world. Indeed the former is of altogether
more importance than the latter, if the latter were contrary to the
legal meaning of the instrument itself.
The whole matter of the adoption of the constitution is mainly a
matter of assuraption and theory, rather than of actual fact. Those
who voted against it, are just as much presumed to have agreed lo
It, as those who voted for it. And those who were not allowed to
vote at all, are presumed to have agreed to it equally with the
others. So that the whole matter of the assent and intention of
the people, is, in reality, a thing of assumption, rather than of
reality. Nevertheless, this assumption must be taken for fact, as
long as the constitution is acknowledged to be law ; because the
constitution asserts it as a fact, that the people ordained and estab
lished it; and if that assertion be denied, the constitution itself is
denied, and its authority consequently invalidated, and the govern
ment itself abolished.
Probably not one half, even, of the male adults ever so much as
read the constitution, before it was adopted. Yet they are all^re-
sumed to have read it, to have understood the legal rules of inter
preting it, to have understood the true meaning of the instrument,
legally interpreted, and to have agreed to it in that sense, and that
only. And this presumed intention of persons who never actually
read the instrument, is just as good as the actual intention of those
who studied it the most profoundly ; and better, if the latter were
erroneous. The sailor, who started on a voyage before the constitution was
framed, and did not return until after it vvas adopted, and knew
nothing of the matter until it was all over, is, in law, as much a
party to the constitution as any other person. He is presumed to
have read it, to have understood its legal meaning, and to have
agreed to that meaning, and that alone ; and his presumed intention

226 RULES OF INTERPRETATION.
is of as much importance as the actual intention of George Wash
ington, who presided over the convention that framed it, and took
the first presidential oath to support it. It is of altogether more
consequence than the intention of Washington, if Washington
intended anything different from vvhat the instrument, legally
interpreted, expresses ; for, in that case, his intention vvould be of
no legal consequence at all.
Men's presumed intentions were all uniform, all certainly right,
and all valid, because they corresponded precisely with what they
said by the instrument itself; whereas their actual intentions were
almost infinitely various, conflicting with each other, conflicting
with what they said by the instrument, and therefore of no legal
consequence or validity whatever.
It is not the intentions men actually had, but the intentions they
constitutionally expressed, that make up the constitution. And
the instrument must stand, as expressing the intentions of the peo
ple, (whether it express them truly or not,) until the people either
alter its language, or abolish the instrument. . If " the people of
the United States" do not like the constitution, they must alter, or
abolish, instead of asking their courts to pervert it, else the consti
tution itself is no law.
Finally. If we are bound to interpret the constitution by any
rules whatever, it is manifest that we are bound to do it by such
rules as have now been laid down. If we are not bound to inter
pret it by any rules whatever, we are wholly without excuse for
interpreting it in a manner to legalize slavery. Nothing can jus
tify such an interpretation but rules of too imperative a character
to be evaded.*
* Story says, " In construing the constitution ofthe United States, we are, in the
first instance, to consider what are its nature and objects, its scope and design, as
apparent from the structure of the instrument, viewed as a whole, and also viewed
in its component parts. Where its words are plain, clear, and determinate, they
require no interpretation ; and it should, therefore, be admitted, if at all, with great
caution, and only from necessity, either to escape some absurd consequence, or to
guard against some fatal evil. Where the words admit of two senses, each of
whieh is conformable to common usage, that sense is to be adopted, which, withoid
departing from the literal import of the words, best harmonizes with the nature
and objects, the scope and designs, of the instrument. Where the words are unam
biguous, but the provision may cover more or less ground, according to the inten
tion, which is subject to conjecture ; or where it may include in its general terms more
or less than might seem dictated hy the general design, as that may be gathered
from other parts of the instrument, there is much more room for controversy ; and,
the argument from inconvenience will probably have different influences upon differ
ent minds. Whenever such questions arise, they will probably be settled, each
upon its own peculiar grounds; ani whenever it is a question of power, it should

RULES OF INTERPRETATION. 227
be approached with infinite caution, and affinned only upon the most persuasive
reasous. In examining the constitution, the antecedent situation of the country,
and its institutions, the existence and operations of the state governments, the
powers and operations of the confederation, in short, all the circumstances which
had a tendency to produce or to obstruct its formation and ratification, deserve a
careful attention. Much, also, maybe gathered from contemporary history, and
contemporaiy interpretation, to aid us in just conclusions.
" It is obvious, liowever, that contemporary interpretation m-ust be resorted to
\oith much qualijicaiion and reserve. In the first place, the private interpretation
of any particular man, or body of men, must manifestly be open to much observa
tion. The constitution was adopted by the people of the United States ; and it
was submitted to the whole, upon a just survey of its provisions, as they stood in
the text itself. In different stales, and in different conventions, different and very
opposite objections are known to have prevailed ; and might well be presumed to
prevail. Opposite interpretations, and different explanations of different provisions,
may well be presumed to have been presented in different bodies, to remove local
olijeclions, or to win local favor. And there can be no certainty, either that the
different stale conventions, in ratifying the constitution, gave the same uniform
interpretation lo its language, or that, even in a single state convention, the same
reasoning prevailed, with, a majority, much, less with the whole, of the supporters
of it. In the interpretation of a state statute, no man is insensible of the extreme
danger of resorting to the opinions of those who framed it, or those who passed it.
Its terms may have differently impressed different minds. Some may have implied
limitations and objects, which others would have rejected. Some may have taken
a cursory view of its enactments, aud oihers have studied them wilh profound
attention. Some may have been governed by a temporary interest or excitement,
and have acted upon that exposition whicli most favored their presenl views.
Others may have seen, lurking beneath its text, what commended it lo their judg
ment, against even present interests. Some may have interpreted its language
strictly and closely ; others, from a different habit of thinking, may have given il a
large and liberal meaning. Il is not lo be presumed, that, even in the convention
wbich framed the constitution, from the causes above meritioned, and other causes,
the clauses were always understood in the same sense, or had precisely the same
e.ilenl of operation. Every member necessarily judged for himselfi and the
judgment of no one could, or ought to be, conclusive upon ihat of others. The
known diversity of construction of different parts of it, as well as the mass of its
powers, in the different state conventions ; the total silence upon many objections,
which have since been started; and the strong reliance upon others, which have
since been universally abandoned, add weight to these suggestions. Nothing but
the text itself was adopted by the people. And it would ceriainly be a most extrav
agant doctrine to give lo ariy commentary then made, and, a fortiori, lo any com
mentary since made under a very different posture of feeling and opinion, an
authority which should operate an absolute limit upon the text, or should supersede
its natural and just construction.
" Contemporary construction is properly resorted to, to illustrate and confirm the
text, to explain a doubtful phrase, or to expound an obscure clause ; and in propor
tion to the uniformity and universality of that construction, and the known ability
and talents of those by whom it was given, is the credit lo which it is entitled.
It can never abrogate the text; it can never fritter away its obvious sense; it can
never narrow down its true limitations ; it can never enlarge its natural bounda
ries. We shall bave abundant reason hereafter to observe, when we enter upon the
analysis of the particular clauses of tbe constitution, how many loose interpreta
tions and plausible conjectures were hazarded at an early period, which have since
silently died away, and are now retained in no living memory, as a topic either of

228 RULES OF INTERPRETATION.
praise or blame, of alarm or of congratulation. — 1 Ivory's Com. on the Comt.
pp. 3S7 to 392.
Story makes the following caustic comments upon Mr. Jefferson's rules of inter
pretation. They are particularly worthy the attention of those modem commenta
tors, who construe the constitution to make it sanction slavery. He says, —
" Mr. Jefferson has laid down two rules, which he deems perfect canons for the
interpretation of the constitution.* The first is,- ' The capital and leading object
of the constitution was, to leave with the states all authorities which respected
their own citizens only, and to transfer to the United States those which respected
citizens of foreign or other states ; to make us several as to ourselves, but one as
to all others. In the latter case, then, constructions should lean to the general
jurisdiction, if the words will bear it ; and in favor of the states in the former, if
possible to be so construed.' Now, the very theory on which this canon is found-
ed, is contradicted by the provisions of the constitution itself. In many instances,
authorities and powers are given, which respect citizens of the respective states,
without reference to foreigners, or the citizens of other states. t But if this general
theory were true, it would furnish no just rule of interpretation, since a particular
clause might form an exception to it j and, indeed, every clause ought, at all events,
to be construed according to its fair intent and objects, as disclosed in its language.
What sort of rule is that, which, without regard to the intent or objects of a par
ticular clause, insists that it shall, if possible, (not if reasonable,} be construed in
favor of the states, simply because it respects their citizens? The second canon
is : 'On every question of construction (we should) carry ourselves back to the
time when the constitution was adopted ; recollect the spirit manifested in the
debates ; and instead of trying what meaning may be squeezed out of the text,
or invented against it, conform to the probable one in which it was passed.' Now,,
who does not see the utter looseness and incoherence of this ea.non ? How are we
to know what was thought of particular clauses of the constitution at the time of
its adoption 7 In many cases, no printed debates give any account of any con
struction ; and where any is given, different persons held different doctrines.
Whose is to prevail? Besides, of all the state conventions, the debates of five
only are preserved, and these very imperfectly. What is to be done as to the
other eight states ? What is to be done as to the eleven new states, which have
come into the Union under constructions, which have been established against
what some persons may deem the meaning of the framers of it ? How are we to
arrive at what is the most probable meaning ! Are Mr. Hamilton, and Mr. Madi
son, and Mr. Jay, the expounders in the Federalist, to be followed? Or are others
of a different opinion to guide us ? Are we to be governed by the opinions of a
few, now dead, who have left them on record ? Or by those of a few, now living,
simply because they were actors in those days, (constituting not one in a thousand
of those who were called to deliberate upon the constitution, and riot one in ten
thousand of those who were in favor or agaiust it, among the people) ? Or are we
to be governed by the opinions of those who constituted a majority of those who
were called to act on that occasion, eithej as framers of, or voters upon, the constitu
tion ? Ifby the latter, in what manner can we know those opinions? Are we to
be governed by the sense of a majority of a particular state, or of all of the United
States ? If so, how are we to ascertain what that sense was ? Is the sense of tlie
constitution to be ascertained, not by its men text, but by the' probable meani^ng,' to
be gathered by conjectures from scattered documents, from pnvate papers, from the
table-talk of some statesmen, br the jealous exaggerations of others ? Is the con
stitution of the United States to be the only instrument, whieh is not to be inter
preted by what is written, but by probable guesses, aside from the text? fVhat
* 4 Jefferaon'a Correspondence, 373, 391, 392, 396.
t i JeHerson'o Correspondence, 391, 392, 396.

RULES OF INTERPRETATION. 229
'jmM be said of interpreting a statute of a state legislature, by endeavoring to
find, oui, from private sources, the objects and opinions of every member ; how every
oneth/iught; what he wished ; how he interpreted it ? Suppose different persons
bad different opinions, what is to be done? Suppose different persons are not
agreed as to 'the probable meaning' of the framers or of the people, what inter
pretation is to followed ? These, and many questions of the same sort, might be
asked. // is obvious, Ihat there can be no security to the people in any constitution
of government, if they are not to judge of it by the fair meaning ofthe ivords of
the text ; but the words are to be bent and broken by the ' probable meaning ' of
persons, whon they never knew, and whose opinions, and means of information,
may be no belter than their own ? The people adopted the eonstitution, according
lothe words ofthe text in their reasonable interpretation, and not according to the
private interpretation of any particular ¦men. The opinions of the latter may some
times aid us in arriving at just results, but they can never be conclusive. The
Federalist denied that the president could remove a public officer without the con
sent of the senate. The first congress affirmed his right by a mere majority.
Which is to be followed? "— 1 Story's Com. on Const, 390, 392, note.
Story says, also, " Words, from the necessary imperfection of all human language,
acquire different shades of meaning, each of which is equally appropriate, aud
equally legitimate ; aud each of which recedes in a wider or narrower degree from the
others, according to circumstances ; and each of which receives from its general
use some indefiniteness and obscurity,-as to its exact boundary and extent. We
are, indeed, often driven to multiply commentaries from the vagueness of words in
themselves ; and, perhaps, still more often from the difierent manner in which
different minds are accustomed to employ them. They expand or contract, not
only from the conventional modifications introduced by the changes of society, but
also from the more loose or more exact uses, to which men of different talents,
acquirements, and tastes, from choice or necessity, apply them. No person can fail
to remark the gradual deflections in the meaning of words, from one age to another,
and so constantly is this process going on, that the daily language of life, in one
generation, sometimes requires the aid of a glossary in another. It has been justly
remarked, that no language is so copious, as to supply words and phrases for every
complex idea ; or so correct, as not to include many equivocally denoting different
ideas. Hence it must happen, that, however accurately objects may be discriminated
in themselves, and however accurately the discrimination may be considered, the
definition of them may be rendered inaccurate by the inaccuracy of the terms in
which it is delivered. We must resort, then, to the context, and shape the particu
lar meaning so as to make itJU that of the connecting words, and agree with the
subject ¦matter." — 1 Story's Com., 437.
Ch. J. Marshall, speaking for the Sup. Court United States, says, " The spirit
of an instrument, especially of a constitution, is to be respected not less than its
letter, yet the spirit is to be collected chiefly from its words. It would be danger
ous in the extreme to infer from extrinsic circumstances, that a case for which the
words of an instrument expressly provide, shall be exempted from its operation.
Where words conflict with each other, where the difierent clauses of an instrument
bear upon each other, and would be inconsistent unless the natural and common
import of words be varied, construction becomes necessary, and a departure from
the obvious meaning of words is justifiable." — 4 Wheaton, 202.
Ch. J. Taney, giving the opinion of the Supreme Court of the United States,
says, " In expounding this law, the judgment of the court cannot, in any degree, be
influenced by the construction placed upon it by individual members of congress in
the debate which took place on its passage, nor hy the motives or reasons assigned
by them for supporting or opposing amendments that were offered. The law, as it
is passed, is the will of the majority of both houses, and the only mode in whjch that
20

230 RULES OF INTERPRETATION.
will is spoken, is in the act itself; and we must gather their intention from ths
language there used, comparing it, when any ambiguity exists, with the laws upon
the same subject, and looking, if necessary, to the public history of the times in
which it was passed." — 3 Howard, 24.
Coke says, "The words of an act of parliament must be taken in a lawful and
lightful sense." — Coke Lit., 381, 6.
Also, " The surest construction of a statute is by the rule and reason ofthe com
mon law." — Same, 272, 6.
" Acts of parliament are to be so construed as no man that is innocent, or free
from injijry or wrong, be by a literal construction punished or endamaged." — Same,
360, a.
" When the construction of any act is left to the law, the law, which abhorreth
injury and wrong, will never so construe it, as it shall work a wrong." — Same,
42, a.
" It is a maxim in law, that the construction of a law shall not work an injury."
Same, 183, a.
" The rehearsal or preamble of the statute is a good mean to find out the meaning
of the statute, and as it were a key to open the understanding thereof." — Same,
79, a.
" It is the most natural and genuine exposition of a statute to construe one part
of tbe statute by another part of the same statute, for that best expresseth the
meaning ofthe makers." — Same, 381, b.
" If the words of a statute are obscure, tbey shall be expounded most strongly for
tbe public good." — Plowden, 82.
" It is most reasonable to expound the words which seem contrary to reason,
according to good reason and equity." — Same, 109.
" Such constructioti ought to be made of acts of parliament as may best stand
with equity and reason, and mostly avoid rigor and mischief." — Same, 364.
" The judges took the common law for their guide, which is a master in exposi
tion, the reason whereof they pursued as near as they could." — Same, 364.
"Words of a statute ought not to be interpreted to destroy natural justice." —
Viner's Abridg. Constr. of Stat., sec. 155.
Blackstone's rules of interpretation are as follows:
" The fairest and most rational method to interpret the will ofthe legislator, is by
exploring his intentions at the time when the law was made, by signs the most
natural and probable. And these signs are either the words, tbe context, the sub
ject matter, the effects and consequence, or the spirit or reason of the law. Let
us lake a view of them all.
" 1 . Words are generally to be understood in their usual and most known sig
nifications ; not so much regarding the propriety of grammar as their general and
popular use." * * *
"Terms of art, or technical tenns, must be taken according to the acceptation
of the learned in each art, trade, or science." * * *
"2. If words happen to be still dubious, we may establish their meaning by the
context; with which it may be of singular use to compare a word or sentence,
whenever they are ambiguous, equivocal, or intricate. Thus the proem, or pream
ble, is often called in to help the construction of an act of parliament." * * *
" 3. As to the subject matter, words are always to be understood as having regard
thereto ; for that is always supposed to be in the eye of the legislator, and all his
eipressions directed to that end." * * *
" 4. As to the effects and consequence, the rule is, that where words bear eithei
ttone, or a very absurd signification, if literally understood, we must a little deviate
from the received sense of them." * * *
"5. But lastly, the most universal and effectual way of discerning the true mean

RULES OF INTERPRETATION. 2S1
iig of a law, where the words are dubious, is by considering the reason and spirit
of it; or the cause which moved the legislator to enact it. For when this reason
«eases, the law itself ought likewise to cease with it." >*¦ * * — 1 Blackstone, 59,
«0. Blackstene (1,59) also lays it down as being "Contrary to all true forms of
reasoning, to argue from particulars lo generals. " Yet this is the universal mode
«f reasoning among those who hold slavery to be constitutional . Instead of reason
ing from generals to particulars, they reason from particulars lo generals. For
example. Instead of judging of the word " free " by reference to the rest of the
instrument, they judge of the whole instrument by reference to the word "free."
They first fix the meaning of the word " free," by assuming- for it, in defiance of
»he rest of the instrBment, and of all legal rules, the worst possible meaning of
which it is capable, simply on the illegal grounds that the slaveholders cannot be
presumed to have been willing to do justice, bul that all the rest ofthe country'can
he presumed willing to do injustice ; and tlrey then limit, bend, and break all the
rest of the instrument to make it conform lo thai meaning. It is only by such
process us tbis that the constitution is ever made to sanction slavery.
" The constitution is law, the peopk having been the legislators. And the sev
eral statutes of the commonwealth, enacted pursuant to the conslitulion, are law,
the senators and representatives being the legislators. But the provisions of the
constitution, and of any statute, are the inteutions of the legislature thereby mani
fested. These intentions are to be aeecrtained by a reasonable construction, result
ing from the application of correct maxi-ms, generaUy acknoivledged and received.
" Two of these m.axims we will mention. That the natural import of the words
of any legislative act, according to the common use of them, when applied lo the
subject matter ofthe act, is tobe considered as expressing the intention of the leg
islature, unless the intention, so resulting from the ordinary import of the words,
be repugnant to sound, acknowledged prini^iples nf national policy. And if that
intention be repugnant to such principles of national policy, then the import of the
words ought to be enlarged or restrained, so tbat it may comport with those prin
ciples ; unless the intention of the legislature be clearly and manifestly repugnant
4o them." — Opinion of the justices. Parsons, Sewall, and Parker, 7Ma,ss., 524.
Chief Justice Parker says, "I have always understood that it was right aod
proper to 'Consider Ihe whole of a statute, and .the preamble, and the probable inten
tion of the legislature, in order to ascertain the meaning of any particular section ;
and tbat this mode of interpretation is justifiable, even where the words of the
section itself may be unambiguous. Ceriainly if one section, however explicit its
terms, if taken literally, would contravene the general object of the statute, it should
be restrained so as to conform to that object." — 1 Pickering, 258.
" It is unquestiouably a well-settled rule of construction, that when words are
not precise and clear, such construction will be adopted as shall appear most rea
sonable, and best suited to accomplish the objects of the statute ; and where any
particular constraction would lead to an absurd conseqtience, it will be presumed
that some exception or qualification was intended by the legislature, to avoid such
a conclusion." — 24 Pickering, 370.
" When the meaning of any particular section or clause of a statute is questioned,
it is proper, no doubl, to look into tbe other parts of the statute ; otherwise the
¦different sections of the same statute might be so construed as to be repugnant, anjl
the intention of the legislature might be defeated. And if, upon examination, the
general meaning and object of the statute should be found inconsistent with the
literal import of any particular clause or section, such clause or section must, if
possible, be construed according to the spirit of the act." — 1 Pickering, 260.
The Supreme Court ofthe United States say, " It is undoubtedly a well-established
principle in the exposition of statutes, tbat every part is to be considered, and the

232 RULES OF INTERPRETATION.
intention of the legislature to be extracted from the whole. It is also tro 3 tiat
where great inconvenience will result from a particular construction, that construc
tion is to be avoided ; uuless the meaning ofthe legislature be plain, in which case
it must be obeyed." — 2 Cranch, 358.
" When the words are not explicit, the intention is to be collected from the eon-
text, from the occasion and necessity of the law, from the mischief felt, and the
remedy in view; and the intention is to be taken or presumed, according to what
is consonant to reason, and good discretion. These rules, by which the sages of
thf3 law, according to Plowden, have ever been guided in seeking for the intention
of the legislature, are maxims of sound interpretation, which have been accumu
lated by the experience, and ratified by the wisdom of ages." — 1 Kent, 61.
Kent declares the rule of the English courts to be this : " They will not readily
presume, out of respect and duly to the lawgivei-, that any very ¦unjust or absurd
consequence was within the contemplation of the law. But if it should be too
palpable in its direction to admit of but one construction, there is no doubt, in the
English law, as to the binding efficacy of the statute." — 1 Kent, 447.
This rule implies that if a statute be susceptible of more than " one eonstruction,"
the just or reasonable one must be preferred to " any very unjust or absurd one."
Kent also says, " Statutes are likewise to be construed in reference to the princi
ples of the common law;" (which, in vol. 1, p. 470, he describes as being, in great
part, but " ihe dictates of natural justice and cultivated reason;") " for it is not to
be presumed the legislature intended to make any innovation upon the commoa
law, further than the case absolutely required. This has been the latnguctge ofthe
courts in every age, and wben we consider the constant, vehement, and exalted
eulogy which the ancient sages bestowed upon the common law, as the perfection
of reason, and the best birthright and noblest inheritance of the subject, we cannot
be surprised at the great sanction given to this rule of construction." — 1 Kent, 463.
Rutherforth says, " All civil laws, and all contracts in general, are to be so con
strued, where the words are of doubtful meaning, as to make them produce no other
effect but whal is consistent with reason, or with the law of nature." — B. 2, ch. 7,
p. 327.
" Lord Coke has laid it down as a general rule, that where words may have a
double intendment, and the one standeth with law and tight, and the other is
wrongful and against law, the intendment which standeth with law shall be taken."
— Co. Lit., 42, u. 6, 183, u. Cited also in Pothier.
" When the terms of a contract are capable of two sig»ifications, we ought tf>
Hnderstand them in the sense which is most agreeableto the natureof the contract."
— Pothier on Contracts, part 1, cA. I, art. 7, rule 3.
The Supreme Court of the United States say, " An act of congress ought never to
be construed to violate the law of nations," (or the law of nalure, they might have
said, for the same reason, for the two are substantially synonymous in principle,)
" if any other possible construction remairts."^ — 2 Cranch, 64.
Parsons, Chief Justice, says, "It is always to be presumed that the l^islature
intend the most beneficial construction of their acts, when the design t»f them is
not apparent." — 4 Mass., 537.
" Statutes are not to be construed as taking away a common law right, urdess the
intention is manifest." — 4 Mass., 473.
" It is an established rule, that a statute is not to be consirued so as to repeaj
the common law, unless the intent to alter it is clearly expressed." — 9 Pickering
514. " Laws are construed strictly to save a right, or avoid a penalty ; and liberally
to give a remedy, or effect an object declared in the law." — 1 Baldwin, 316.
" Statutes are expounded by the rules and reasons of the common law ; and
though the words of a statu le be general, yet they shall be specially construed *a
avoid an apparent injury." — 6 Pane, 588.

RULES OF INTERPRETATION. 233
"This policy, founded in manifest justice, ought to be enforced in this case, if
the several laws in the statute-book, or any one of them, will admit of a reasonable
construction to this effect." — 14 Mass. 92.
" No statute ought to be so construed as lo defeat its own end ; nor so as to
operate against reason ; nor so as to punish or damnify the innocent ; nor so as to
delay justice." — 6 Dane, 596.
"The best construction of a statute is to construe it as near to the rule and rea
son of the common law as may be, and by the course which that observes in other
cases." — Bacon's Abr. Stat., I. 32.
Lord Coke, cited by Chief Justice Abbott, says, " Acts of parliament are to be so
construed, as no man that is innocent, or free from injury, or wrong, be by a literal
construction punished or endamaged." — 3 Barnwell <f- A. 271.
" When any words or expressions in a writing are of doubtful meaning, the first
rule in mixed interpretation is to give them sueh a sense as is agreeable to the
subject matter of which the writer is treating. For we are sure on the one hand
that this subject matter was in his mind, and can on the other hand have no reason
for thinking that he intended anything which is different from il, and much less
that he intended anything which is inconsistent with it." — Rutherforth, b. 2, ch.
7, p. 323.
"The interpretatioTl or construction of the constitution is as mucb a judicial act,
and requires the exercise of the same legal discretion, as the interpretation of a
h.vi." — lKent, 449.
"But we should particularly regard the famous distinction of things favorable,
and things odious." — Vattel, B. 2, ch. 17, sec. 300.
" The precise point of the will of the legislature, or of the contracting powers, is
what ought to be followed ; but if their expressions are indeterminate, vague, or sus
ceptible of a more or less extensive sense, — if this precise point of their intention
in the particular case in question cannot be discovered and fixed, by other rules of
interpretation, it should be presumed, according to the laws of reason and equity."
— Same.
" All the thi^ngs tvhich, without loo much burthening any oneperson inpartiimlar,
are useful and scdutary to human society, ought to be reckoned among the favor
able things. For a nation is already under a natural obligation with respect to
things of this nature ; so if it has in this respect entered into any particular en
gagements, we run no risk in giving these engagements the most extensive sense
th^y are capable of receiving. Can we be afraid of doing violence to equity by
following the law of nature, and in giving the utmost extent to obligations that are
for the common advantage of mankind ? Besides, things useful to human society,
on this account, tend to the common advantage of the contracting powers, and are
consequently favorable. Let us, on the contrary, consider as odious everything thai,
in its own nature, is rather hurtful than of use to the human race." — Same, see.
302. " When the legislature, or the contracting powers, have not expressed their will
in terms that are precise and perfectly determinate, it is to be presumed that they
desire what is must equitable." — Same, sec. 307.
" We favor equity, and fly from what is odious, so far as that may be done with
out going directly contrary to the tenor of the writing, and without doing violence
to terms."- Same, see. 308.

Assuming that the preceding principles of interpretation are correct, it may be
allowable, on account of the iinportance of the subject, and the conlrary opinions
which appear to prevail, to apply them to another clause of the constitution than
those claimed for slavery. 20* •

234 RULES OF INTERPRETATION.
The constitution declares that "the congress shatt have power to declare «'^''-"
This power, unqualified in its terms, would, if taken literally, and independently
i-f the declared objects of this and all the other powers granted to the government,
give congress anihority to declare war for any cause whatever, just or unjust, fot
reasons the most frivolous and wicked, as well as for the most important and
necessary purposes of self-preservation. Yet such is not the power that is actually
granted. All the principles of interpretation before laid down, requiring a construc
tion consistent with justice, and prohibiting the contrary, limit this power to cases
of just war ; war that is necessary forthe defence and enforcement of rights.
The objects of the powers granted to congress are " to establish justice," " secure
liberty," " provide for the common defence," (f-c. ; and the powers are to be con
strued with reference to the accomplishment of these objects, and are limited by
them. Congress, therefore, have no constitutional authority to make wars of
aggression and conquest. And all acts of congress, of that nature, are unconsti
tutional. Law-books abound with cases in wnich general words are restrained to such par
ticular meanings as are consistent wilh justice and reason. And the rule is well
established that general words are always to be thus restrained, unless there be
something in the context to forbid it.
"A thing which is within the letter of the statute is not within the statute,
unless it he wilhin the intention of the makers." — 15 Johnson, 381 ; 3 Cowen, 92 ;
1 Blackstone, 60-61 ; 3 Mass., 540 ; 5 Mass., 382 ; 15 Mass., 206 ; Bac. Abr. Stat.,
/., 45.
Was it the intent of " the people of the United States " to authorize their gov
ernment to make wars of aggression and conquest ? Their intention must be
collected from their words, but their words must always be taken in a sense con
sistent with justice, and in no other, if tbe words are capable of a just meaning.
IC -^Yj^i- i, j„jjy {,g niade for jifet, and for unjust purposes. But as two conflicting
intentions cannot be attributed lo the same provision, the just intention mustbe
preferred to the unjust one. The preamble, also, as we have seen, shows the object
of this power to be " to secure liberty," and " provide for the common defence." A
good object, and a sufiicienl object, being thus apparent, and being also specially
declared in the preamble, no other can be attributed, and the power is consequently
limited to that object."'
Plowden says, " And tbe judges of the law in all times past have so far pursued
the intent of the makers of statutes, that they have expounded acts, which were
general in words, to be but particular, when the intent was particular." — Plow
den, 204.
Vattel says, " We limit a law or a promise contrary to the literal signification of
the terms, by regulating our judgment by the reason of that law, or that promise."
— Vattel, B. 2, ch. 17, sec. 292.
Also, " The restrictive interpretation takes place, when a case is presented in
which the law or the treaty, according to the rigor of the terms, lead to something
unlawful. This exception must then be made, since nobody can promise or ordaiu
what is unlawful. For this reason, though assistance has been promised to an
ally in all his wars, no assistance ought to be given him when he undertakes one
that is manifestly unjust." — Same, see. 293.
Also, " We should, in relation to things odious," (that is, " everything that in its
own nature is rather hurtful than of use to the human race,") " take the terms in
the most confined sense." — Same, sec. 308.
The Supreme Court of the United States, also, say, " An act of congress," (and
* Story says, " The true office of the preamble is to expound the nature, and extent, and
application of the powers actually conferred by the constitution."— 1 Story's Com. on
Const., 445.

EULES OF INTERPRETATION. 235
I
the same reason applies to the constitution,) " ought never to be construed to violate
the law of nations, if any other possible construction remains." — 2 Cranch, 64.
To understand the force of this last rule, some definition pf the law of nations is
necessary. The best general definition of it is, tbat whicb considers nations as
individuals, and then applies the same principles of natural law to them, that ara
applicable lo individuals. This rule, however, requires to be modified by being
made more lenient to nations, in certain cases, than to individuals. For example ;
the whole people of a nation are not to have war made upon them, for wrongs
done by their government, any sooner or further than is necessary to compel them
to redress those wrongs as soon as, in the nature of things, they (the people) can
do it, by changing, or operating upon their government. The reasons are these :
The people, by instituting government, or appointing certain individuals to admin
ister it, do not authorize those individuals to commit any wrongs agjiinsl foreign
nations. They are not, therefore, themselves culpable for those wrongs. When,
then, such wrongs are committed, all that the people can be required to do, is that
they dismiss the wrong doers from power, and appoint oihers who will redress the
injuries commiited. And to do this, the people must be allowed such time as is
reasonable and necessary, which will be more or less, according to circumstances.
But ample time must be sure to be allowed in all cases, before war against them
can be lawful.
2. In controversies as to their respective rights and wrongs, nations are each
entitled to longer time for investigating and determining their rights than individ
uals, hecause it is not in, the nature of things possible that a whole people can
investigate such questions with the same promptness that individuals can investi
gate their respective rights in their private controversies ; and a whole people are
not to be held liable, by having war made upon them, until they have had ample,
or, at least, reasonable, time to investigate the matters in controversy.
. 3. Nations are entitled to longer delays for fulfilling their contracts, paying theii
debts, &c., than individuals, because governments, no more than individuals, can
be required to perform impossibilities, and a government's means of paying its
debts musl be obtained by systematic processes of taxation, which require a longer
or shorter time, according to tbe wealth and resources ofthe country.
4. But another reason why greater forbearance is due lo nations than to individ
uals, is, that it generally happens that a part only of a nation are disposed to with
hold justice, while the rest are willing to do it. Yet if the nation, as a whole,
were held responsible to the same rigid rules as an individual, by having war
declared on the first want of promptitude in fulfilling their duty, the innocent
would be involved in the same punishment with the guilty.
For all these reasons, and some others, great lenity and forbearance in the
enforcement of rights is demanded by the law of nations, or by the natural law
applicable to nations.
To apply the foregoing principles : If the war in which the United States are
now engaged with Mexico, be one, not of defence, but of aggression, on their part^
or be made in violation of natural law, it is unconstitutional, and all proceedings
had in the prosecution of it are illegal. The enlistments of soldiers for that service
are illegal ; and the soldiers are not bound by their enlistments. The soldiers
legally owe no obedience to their officers. The officers have no legal authority
over their soldiers. The oaths ofthe officers to obey the laws of the United States,
while they are in the territory of Mexico, are of no legal obligation. And the offi
cers and soldiers, while in Mexico, are in no way legally amenable to the govern
ment or laws ofthe United States for their conduct. They owe no legal obedience
lo the orders of the president. They are, in the eye of our own law, mere banditti.
They may throw off all allegiance to the government of the United Slates, turn
conquerors on their own account, and it will be no offence against the laws of tha

236 EULES OF INTERPRETATION.
United States. The appropriations for carrying on the war in Mexico are illegal,
and might, with as much constitutional authority, be made to Mexican brigands, as
to our own soldiers. Finally, our soldiers are bound to know our own constitutional
law on this point, and to know that they are acting without legal authority. They
are, therefore, not entitled lo the rights of prisoners of war, in case they should fall
into the hands of the Mexican government, but are liable lo be treated as robbers
and murderers ; and our government, in such an event, would have no constitutional
right to protect them, by force, from their liability to Mexican laws, for all the
crimes they are now committing.

SERVANTS COUNTED AS UNITS. 237

CHAPTEE XVIII.
SERVANTS COUNTED AS UNITS.
The constitution (Art. 1, Sec. 2) requires that the popular basis
of representation and taxation be made' up as follows, to wit :
" 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."
If the word free, in this clause, be used as the correlative of
slaves, and the words " all other persons" mean slaves, the words
" including those bound to service for a term of years" are sheer
surplusage, having no legal force or efTect whatever ; for the per
sons described by them would of course have been counted with
the free persons, without the provision. If the word free were
used as the correlative of slaves at all, it was used as the correla
tive of slaves alone, and not also of servants for a term of years,
nor of prisoners, nor of minors under the control of their parents,
nor of persons under any other kind of restraint whatever, than
the simple one of chattel slavery.*
It was, therefore, wholly needless to say that " persons bound to
service for a term of years " should not be counted in the class
with slaves, for nobody, who understood the word free as the cor
relative of slaves, would have imagined that servants for a term
of years were to be included in the class with slaves. There
would have been nearly or quite as much reason in saying that
minors under the control of their parents, persons under guardian
ship, prisoners for debt, prisoners for crime, &c., should not be
counted in the class with slaves, as there was in saying that ser
vants for a term of years should not be counted in that class. In
fact, the whole efTect of the provision, if it have any, on the slave
hypothesis, is to imply that all other persons under restraint, except
"" If the word free were used as the correlative of any other kinds of restraint
than slavery, it would not have implied slavery as its correlative, and there would
have been no ground for the argument for slavery. . On the other hand, if it were
used as the correlative of slavery, there was no need of specially excepting from
the implication of slavery " those bound to service for a term of years," for they
were known by everybody not to be slaves.

238 THE UNCONSTITUTIONALITY OF SLAVERY.
" those bound to service for a term of years," shall be counted m
the class with slaves ; because an exception of particular persons
strengthens the rule against all persons not excepted. So that, on
the slave hypothesis, the provision would not only be unnecessary
in favor of the persons it describes, but it would even be dangerous
in its implications against persons not included in it.
But we are not allowed to consider these words even as sur
plusage, if any reasonable and legal efTect can be given them.
And under the alien hypothesis they have such an efTect.
Of the " persons bound to service for a term of years " in those
days, large numbers were aliens, who, but for this provision, would
be counted in the three fifths class. There was, nevertheless, a
sound reason why they should be distinguished from other aliens,
and be counted as units, and that was, that they were bound to the
Qountry for a term of years as laborers, and could not, like other
aliens, be considered either a transient, unproductive, or uncertain
population. Their being bound to the country for a term of years
as laborers, was, to all practical purposes, equivalent to naturaliza
tion ; for there was little or no prospect that such persons would
ever leave the country afterwards, or that, during their service,
they would recognize the obligations of any foreign allegiance.
On the alien hypothesis, then, the words have an efTect, and a
reasonable one. On the slave hypothesis, they either have no
efTect at all, or one adverse to all persons whatsoever that are under
any kind of restraint, except servants for a term of years.

CHAPTER XIX.
SLAVE REPRESENTATION.
The injustice to the Nortk that is involved in allowing slaves,
who can have no rights in the government, who can owe it no
allegiance, who are necessarily its enemies, and who therefore
weaken, instead of supporting it — the injustice and inequality of
allowing such persons to be represented at all in competition with
those who alone have rights in the government, and who alone
support it, is so palpable and monstrous, as utterly to forbid any
such construction being put upon language that does not necessa
rily mean it. The absurdity, also, of such a representation, is, if
possible, equal to its injustice. We have no right — legal rules, that

SLAVE representation. 239
are universally acknowledged, imperatively forbid- us — unneces
sarily to place upon the language of an instrument a construction,
that either stultifies the parties to it to such a degree as the slave
construction does the people of the North, or that makes them con
sent to having such glaring and outrageous injustice practised
upon them.
But it will be said in reply to these arguments, that, as a com
pensation to the North for the injustice of slave representation, all
direct taxes are to be based on population ; that slaves are to be
counted as three fifths citizens, in the apportionment of those
taxes; and that the injustice of the representation being thus
compensated for, by a corresponding taxation, its absurdity is re
moved. But this reply is a mere assumption of the fact that the consti
tution authorizes slave taxation ; a fact, that, instead of being
assumed, stands only on the same evidence as does the slave rep
resentation, and therefore as much requires to be proved by addi
tional evidence, as does the representation itself. The reply admits
that the slave representation is so groundless, absurd, unequal, and
unjust, that it would not be allowable to put that construction upon
the clause, if it had provided only for representation. Yet it at
tempts to support the construction by alleging, without any addi
tional evidence, that the direct taxation, (if there should ever be
any direct taxation,) was to be on the same absurd principle. But
this is no answer to the objection. It only fortifies it ; for it ac
cuses the constitution of two absurdities, instead of one, and does
it upon evidence that is admitted to be insufficient to sustain even
one. And the argument for slavery does, in reality, accuse the
constitution of these two absurdities, without bringing sufficient
evidence to prove either of them. Not having sufficient evidence
to prove either of these absurdities, independently of the other, it
next attempts to make each absurdity prove the other. But two
legal absurdities, that are proved only by each other, are not proved
at all. And thus this whole fabric of slave representation and
slave taxation falls to the ground.
Undoubtedly, if the clause authorizes slave representation, it
also authorizes slave taxation ; or if it authorizes slave taxation, it
undoubtedly authorizes slave representation. But the first question
to be settled is, whether it authorizes either ? And this certainly
is not to be answered in the affirmative, by simply saying that, if
it authorizes one, it authorizes the other.

240 the unconstitutionality of slavery.
If any one wishes to prove that the clause authorizes slave
representation, he must first prove that point independently of the
taxation, and then he may use the representation to prove the tax
ation ; or else he must first prove the slave taxation, and then he
may use the taxation to prove the representation. But he cannot
use either to prove the other, until he has first proved one inde
pendently of the other ; a thing which probably nobody will ever
undertake to do. No one certainly will ever undertake to prove
the representation independently of the taxation ; and it is doubtful
whether any one will ever undertake to prove the taxation, inde
pendently of the representation. The absurdity and incongruity of
reckoning one single kind of property as persons, in a government
and system of taxation founded on persons, are as great as would
be that of valuing one single class of persons as property, in a
government and system of taxation founded on property. The
absurdity and incongruity in each case would be too great to be
allowable, if the language would admit, (as in this case it does
admit,) of another and reasonable construction.
Nevertheless, if any one should think that this slave taxation is
not a thing so absurd or unjust as to forbid that construction, slill,
the fact that, if that construction be established, the absurd and
unjust representation ivill follow as a consequence from it, is a
sufficient reason why it cannot be adopted. For we are bound to
make the entire clause harmonious with itself, if possible ; and, in
doing so, we are bound to make it reasonable throughout, if that
be possible, rather than absurd throughout.
I have thus far admitted, for the sake of the argument, the
comraon idea, that the taxation, which the slave construction of
this clause would provide for, would be some compensation to the
North, for the slave representation. But, in point of fact, it would
not necessarily be any compensation at all ; for it is only direct
taxes that are to be apportioned in this manner, and the government
is not required to lay direct taxes at all. Indeed, this same unjust
representation, which it is claimed that the clause authorizes, may
be used to defeat the very taxation which it is said was allowed as
an equivalent for it. So that, according to the slave argument,
the unjust representation is made certain, while the compensating
taxation is made contingent ; and not only contingent, but very
likely contingent upon the will of the unjust representation itself.
Here, then, are another manifest and gross absurdity and injustice,
which the slave construction is bound to overcome, before it can be
adopted.

SLAVE representation. 241
But suppose tne taxation had been made certain, so as to cor
respond with, and compensate for, the representation — what then?
The purport of the clause would then have been, that the North
said to the South, " We ivill suffer you to govern us, (by means
of an unequal representation,) if you will pay such a portion,
(about one sixth,) of our taxes." Certainly no construction, unless
an unavoidable one, is allowable, that would fasten upon the people
ofthe north the baseness and the infamy of having thus bargained
away their equal political power for money ; of having sold their
freedom for a price. But when it is considered how paltry this
price was, and that its payment was not even guarantied, or likely
ever to be made, such a construction of the contract would make
the people of the North as weak and foolish, as infamous and
despicable. Is there a man in the whole northern states, that
would now consent to such a contract for himself and his children ?
No. What right, th«n, have we to accuse all our fathers, (fathers
too who had proved their appreciation of liberty by risking life
and fortune in its defence,) of doing what none of us would do 1
No legal rules of interpretation, that were ever known to any
decent tribunal, authorize us to put such a construction upon their
instrument as no reasonable and honorable man would ever have
agreed to. There never lived a man in the northern states, who
. would have consented to such a contract, unless bribed or moved
to it by some motive beyond his proportionate share in such a
price. Yet this price is all the motive that can be legally assigned
for such a contract ; for the general benefits of the Union must be
presuraed to have been equal to each party. If any difTerence
were allowable in this respect, it must have been in favor of the
North, for the South were the weaker party, and needed union much
more than the north.
This question has thus far been treated as if the South had
really made some pretence, a#least, of paying more than her share
of taxation. But this is by no means the true mode of presenting
the question ; because these persons, it must be remembered,
whom it is claimed were to be represented and taxed only as three
fifths of a person each, were legally free by the then existing State
constitutions ; and, therefore, instead of being slaves, not entitled
to be represented or taxed at all as persons, were really entitled
to be represented, and liable to be taxed, as units, equally with the
other people of the United States. All this the North must be
Resumed io have known. The true mode of presenting the ques-
21

242 THE unconstitutionality op SLAVEEY.
tion, therefore, is this, viz., 1. Whether the South, for the privilege
of enslaving a portion of her people, of holding them in slavery
under the protection of the North, and of saving two fifths of her
direct taxation upon them, agreed to surrender two fifths of her
representation on all she should enslave ? and, 2. Whether the
North, in order to secure to herself a superiority of representation,
consented to the enslavement of a portion of the Southern people,
guarantied their subjection, and agreed to abate two fifths of the
direct taxation on every individual enslaved ? This is the true
mode of presenting the subject ; and the slave construction of the
clause answers these questions in the affirmative. It makes the
North to have purchased for herself a superior representation, and
to have paid a bounty on slavery, by remitting taxes to which the
South would have been otherwise liable ; and it makes the South
to have bartered away her equal representation, her equal political
power — makes her, in fact, to have sold her own liberties to the
North, for a pitiful amount of taxation, and the privilege of enslav
ing a part of her own people.
Such is the contract — infamous on the part of both North and
South, and base, suicidal, and servile on the part of the South —
which the slave construction would make out of this provision of
the constitution. Such a contract cannot be charged upon political
communities, unless it be " e.xpressed with irresistible clearness."
Much less can it be done on the evidence of language, which
equally well admits of a construction that is rational, honorable,
and innocent, on the part of both.
The construction which legal rules require, to wit, that " free
persons" mean the citizens, and "all other persons" the aliens,
avoids all these obstacles in the way of making this clause an
honorable, equal, and reasonable contract.

CHAPTER XX.
WHY ALIENS ARE COUNTED AS "THREE FIFTHS."
There are both justice and reason in a partial representation,
and a partial taxation, of aliens. They are protected by our laws,
and should pay for that protection. But as they are not allowed
the full 'privileges of citizens, they should not pay an equal tax
with the citizens. They contribute to the strength and resources

why aliens are counted as " nlEEE FIFTHS." 243
of the government, and therefore they should be represented. But
as they are not sufficiently acquainted with our system of govern
ment, and as their allegiance is not made sufficiently sure, they
are not entitled to an equal voice with the citizens, especially if
they are not equally taxed.
But it has been argued* that aliens were likely to be in about
equal numbers in all the States, in proportion to the citizens ; and
that therefore no great inequality would have occurred, if no sep
arate account had been taken of them. But it is not true that
aliens were likely to be in equal numbers in the several States in
proportion to the citizens. Those States whose lands were already
occupied, like Connecticut, Ehode Island, and Massachusetts, (ex
clusive of Maine,) and who could not expect to retain even so much
as their natural increase of population, could not expect to receive
the same additions to it by the immigration of foreigners as New
York, Pennsylvania, and other States, that still had immense bodies
of unoccupied lands. And none of the old thirteen States could
expect long to have the same proportion of aliens as the riew States
that were to be opened in the west. And even those new States,
that were then about to be opened, would soon becorae old, and
filled with citizens, compared with other States that were to be
successively opened still further west.
This inequality in the proportion of aliens in the respective States,
was then, and still is, likely to be for centuries an important polit
ical element ; and it would have been weak, imprudent, short
sighted, and inconsistent with the prevailing notions of that time, of
all previous time, and of the present time, for the constitution to
have made no provision in regard to it. And yet, on the slave
hypothesis, the constitution is to be accused of all this weakness,
imprudence, short-sightedness, and inconsistency; and, what is
equally inadmissible, is to be denied all the credit of the inten
tions, which, on the alien hypothesis, the clause expresses ; inten
tions, the wisdom, justice, and liberality of which are probably
more conspicuous, and more harmoniously blended, than in any
other provision in regard to aliens, that any nation on earth eyer
established, before or since.
It is as unnatural and absurd, in the interpretation of an instru
ment, to withhold the credit of wise and good intentions, where the
language indicates them, as it is to attribute bad or foolish ones,
* By Wendell Phillips.

244 unconstitutionality of slavery.
where the language does not indicate them. And hence the posi
tive merits of this clause, on the alien hypothesis, are entitled to
the highest consideration ; and are moreover to be contrasted with
its infamous demerits, on the slave hypothesis.
The preceding view of this clause is strongly confirmed by other
parts of the constitution. For example : The constitution allows
aliens, equally with the citizens, to vote directly in the choice of
representatives to congrek, and indirectly for senators and presi
dent, if such be ihe pleasure ofthe State governments.* Yet they
are not themselves eligible to these three offices, although they are
eligible to all other offices whatsoever under the constitution.! All
that is required of them is simply the official oath to support the
constitution ; the same oath that is required of citizens.
Again. The constitution of the United Slates lays no restraint
upon their holding, devising, and inheriting real estate, if such
should be the pleasure of the State governments. And in many,
if not all, the States, they are allowed to hold, devise, and inherit it.
Now the facts, that they are not restrained by the constitution
from holding, devising, and inheriting real estate ; that they have
the permission of the constitution to vote, (if the State governments
shall please to allow them to do so ;) and that they are eligible to
a part of the offices, but not to all, show that the constitution
regards them not as aliens, in the technical sense of that term,t but
as partial citizens. They indicate that the constitution intended
to be consistent with itself throughout, and to consider them, in
reality, what this argument claims that it considers them in respect
of representation and taxation, viz., as three fifths citizens.
The sarae reason that would induce the constitution to make
aliens eligible to all offices, except the three named, (to wit, those

* And in some of the States, as Illinois and Michigan, for example, they are
allowed to vote.
The provision in the constitution of the United States, in regard to electors, is
this: (art. 1, sec. 2.)
" The House of Representatives shall be composed of members chosen every sec
ond year, by the people of the several Stales," (not by the citizens of the United
States in each State, hut by " the people of the several States,") " and the electors in
each Stale shall have the qualifications requisite for electors of the most numerous
branch of the State legislature."
+ They may be judges, ambassadors, secretaries of the departments, commanders
in the army and navy, collectors of revenue, postmasters, &c., equally with the
citizens. t For the term alien technically implies exclusion from office, exclusion from the
right of suffrage and inability to hold real estate.

WHY ALIENS ARE COUNTED AS " THREE FIFTHS." 245
of representative, senator, and president,) and to allow them the
right of votin^would also induce it to allow them some right of
being counted Ifi making up the basis of representation. Oij the
other hand, the same reasons which would forbid their eligibility,
as representatives, senators, and presidents, would forbid iheir being
reckoned equal to citizens, in making up the basis of representa
tion ; and would also forbid their votes for those officers being
counted as equal to the votes of citizens. Yet a single vote could
not be divided so as to enable each alien to give three fifths, or any
other fraction, of a vote. Here then was a difficulty. To have
allowed the separate States full representation for their aliens, as
citizens, while it denied the aliens themselves the full rights of
citizenship, (as, for instance, eligibility to the legislative and high
est e-xecutive offices of the government,) would have been incon
sistent and unreasonable. How, then, was this matter to be
arranged ? The answer is, just as this argument claims that it
was arranged, viz., by allowing the aliens full liberty of voting, at
the discretion of the State governments, yet at the same time so
apportioning the representation among the States, that each State
would acquire no more weight in the national government, than if
her aliens had each given but three fifths of a vote, instead of a
full vote.
In this manner all the inconsistency of principle, which, it has
been shown, would have otherwise existed between the difierent
provisions of the constitution, relative to aliens, as compared vvith
citizens, was obviated. At the same time justice was done to the
States, as States; also to the citizens, as citizens; while justice,
liberality, and consistency were displayed towards the aliens them
selves. The device was as ingenious, almost, as the policy was
wise, liberal, and just.
' Compare now the consistency and reason of this arrangement
with the inconsistency and absurdity of the one resulting from the
slave hypothesis. According to the latter, the States are allowed
the full weight of their aliens, as citizens, in filling those depart
ments of the government, (the legislative and highest executive,)
which aliens themselves are not al|lowed to fill. 2. Aliens are
allowed full votes with the citizens in filling offices, to which,
(solely by reason of not being citizens,) they are not eligible. 3.
And what is still more inconsistent, absurd, and atrocious even,
half the States are allowed a three fifths representation for a class
of persons, whom such States have made enemies to the nation,
21*

246 UNCONSTITUTIONALITY OF SLAVEEY.
and who are allowed to fill no office, are allowed no vote, enjoy no
protection, and have no rights in, or responsibilityto, the governr
meiy. *
If legal rules require us to make an instrument consistent, rather
than inconsistent, with itself, and to give it all a meaning that is
reasonable and just, rather than one that is unjust and absurd, what
meaning do they require us to give to the constitution, on the point
under consideration ?
The only imperfection in the constitution ori this point seems to
be, that it does not secure the elective franchise to aliens. But this
omission implies no disfavor of aliens, and no inconsistency with
the actual provisions of the constitution ; nor is it any argument
against the theory here maintained; for neither does the constitu
tion secure this franchise to the citizens, individually, as it really
ought to have done. It leaves the franchise of both citizens and
aliens at the disposal of the Slate governments separately, as being
the best arrangement that could then be agreed upon, trusting,
doubtless, that the large number of aliens in each State would
compel a liberal policy towards them.
From this whole view of the subject, it will be seen that the
constitution does not, in reality, consider unnaturalized persons as
aliens, in the technical sense of that term.* It considers them as
partial citizens, that is, as tkree fifths citizeris, and two fiftks aliens.
The constitution could find no single terra by which to describe
them, and was therefore obliged to use the phrase, " all other per
sons" than "the free," that is, "all other persons" than those
entitled to full representation, /mZZ rights of eligibility to office, and
*ull rights of citizenship generally. The term " alien" would have
been a repulsive, unfriendly, and wholly inappropriate one; by
which to designate persons who were in fact members of the gov-
-.rnment, and allowed to participate in its administration on a foet-
itig so near to an equality with the citizens. As the word had
acquired a technical meaning, indicative of exclusion from office,
from suffiage, from the basis of representation, and from the right
of holding real estate, its use in the constitution would have served
to keep alive prejudices against them, and would have b^en made
a pretext for great illiberality and injustice towards them. Hence
the constitution nowhere uses the word.
How much more reasonable in itself, and how much more cred-

* They are called aliens in this argument, for the want of any other word that
ill nncnriKa fham

will describe them,

"WHY THE WORDS "FREE PERSONS" WERE USED. 247
liable to the constitution and the people, is this mode of accounting
for the use of the words " all other persons," than the one given
by the advocates of slavery, viz., that the people had not yet become
sufloiaently shameless to avow their treason to all the principles of
liberty for which they had been distinguished, and, therefore,
Instead of daring to use the word " slaves," they attempted to hide
their crime and infamy under such a fig-leaf covering as that of
the words " all oth^r persons." Bul the law knows nothing of
any such motives for using unnatural and inappropriate terms. It
presumes that the term appropriate for describing the thing is used
when that term is known — as in this case it was known, if the
ihings intended to be described were slaves.

CHAPTER XXI.
WHY THE WORDS "FREE PERSONS" WERE USEO
The words " free persons " were, I think, of themselves — that
is, independently of any desire that we may suppose a part of the
people to have had to pervert their true meaning — the mosl
appropriate words that could have been used to describe the native
and naturalized citizens — that is, the full citizens, as dislinguishod
from those partial citizens, (not technically aliens, though commonly
called aliens,) — whom I have supposed the words " all other per
sons" were intended to describe-
The real distinction between these two classes was, that the
first class were free of the government — that is, they were fuU
members ofthe State, and could claim the/wZZ liberty, enjoyment
and protection of the laws, as a matter of right, as being parties
to the corapact ; while the latter class were not thus free ; they
could claim hardly anything as a right, (perhaps nolhing, unless
it were the privilege of the writ of habeas corpus,) and were only
allowed, as a matter of favor and discretion, such protection and
privileges as the general and State •governments should see fit to
accord to them.
It was important that the first of these classes should be de
scribed 6y some tecknical term ; because technical terms are more
definite, precise, and certain, in their meaning, than others. And
tn this case, where representation and taxation were concerned,
the greatest precision that language admitted of was requisite.
Now, I think, there was no other word in the language that would

248 the UNCONSTITUTIONALITY OF SLAVEKY.
have described so accurately, as does the word " free," (when used
in its technical sense,) the class which I have supposed it was
intended to describe.
The technical term, in the English law, for describing a member
of the state, is " free subject."* " Free subjects " are the whole
body of the people, men, women, and children, who were either
born within tbe dominions and allegiance of the crowD,t dr have
been naturalized by act of parliament. Individually, they are
members of the state ; -collectively, they constitute the state. As
members of the state, they are individually entitled, of right, to
all the essential liberties and rights which the laws secure to the
people at large.
" Free subjects "• are distinguishable from aliens, or persons
born out of the country, but residing in the country, and allowed,
as a matter of 'privilege, such protection as the govemment sees
fit to accord to them'.
" Free subjects" are also distinguishable from denizens, who, in
the English law, are persons born out of the country, and not
naturalized by act of parliament, but have certain privileges con
ferred upon them by the king's letters patent.?
This term, " free subject," had been universally used in this
country, up to the time of the revolution, to describe members of
the state, as distinguished from aliens. Th€ colonial charters
guarantied to the subjects of the British crown, settling in the
colonies, that they and their children should " have and enjoy all
the liberties and immunities of free and naturral subjects, to aO
intents, constructions, and purposes whatsoever, as if they and
every of them were bom within the realm of England." And
Bp to the revolution, the colonists, as everybody know^s, all claimed
the rights and the title of "/ree British subjects." They did not
call themselves citizens of Massachusetts, and citizens of Virginia.
They did not call themselves citizens at all. The word citizen
was never, I think, used in the English law, except to describe
persons residing, or having franchises, in a city ; as, for example,
* " Subjects are members of the commonwecdth, under the- king their head.'*"-
JacoVs, ^Villiams', and Cunningham's Law Dictionaries.
+ " All those are natural-born subjects, whose parents, at the time of their birth,
were under the actual obedience of our ting, and whose place of birtb was withia
Hs dominions." — 7 Coke's Rep,, p. IS. Bacon's Abridg., title Mica. Oiammg-
ham's Law DidioTtary, title Alien.
t " A denizen is in a kind of middle state, between an alien and a natural-bt«tt
subject, and partakes of both of them." — 1 Blackstone^ S7S. Jacob's Law Diet.

WHY THE WOEDS " FREE PERSONS " WERE USED. 249
citizens of London. But as members of the state, they were all
called " free subjects," or " free British subjects."
Up to the time of the revolution, then, the term "free subject"
was the only term in common use to describe members of the state,
as distinguished from aliens. As such it was universally known
in the country, and universally used.*
The term " free" was also naturally an appropriate one by which
to describe a member of a free state ; one who was poliiically
free, and entitled, of right, to the full and free enjoyraent of all
the liberties and rights that are secured to the members of a gov
ernment established for the security of men's personal freedora.
What but a " free subject," or " free person," could such a member
of a free state be appropriately called ?
And when it is considered in what estimation " the liberties of
England," " of Englishmen," and of English subjects everywhere,
were held ; that they were the peculiar pride and boast of the
nation ; the title of " free " is seen to be a perfectly natural and
appropriate one, by which to designate the political rank of those
who Were entitled, of right, to the possession and enjoyment of all
those liberties, as distinguished from those not entitled to the same
liberties. After the Declaration of Independence, the word ' subject" was
no longer an appropriate name for the people composing onr repub
lican States ; for " subject " implied a sovereign ; but here the
people had themselves become the sovereigns. The term " sub
ject" was, therefore, generally dropped. It seldom appears in the
State constitutions formed after the Declaration of Independence.
But although the term " subject ""had been generally dropped,
yet, up to the adoption of the United States constitution, no other
single term had been generally adopted in the several State consti
tutions, as a substitute for " free subject," to describe the members
of the state, as distinguished from aliens.
The terms people, inhabitants, residents, which were used in
most of the State constitutions, did.not mark the difference between
native and naturalized members of the state, and aliens.
The term " freeman" was used in some of the State constitu-

* The only other term, I think, that was ever used in the English law, in a
sunilar sense, was " freeman ;" as, for instance, " freeman of the realm." But
"free subject" was the common term. " Freeman" was more generally used to
denote members of incorporated trading companies, and persons possessing fran
chises in a city. Besides, it did not, I think, so generally, if ever, include womeu
and children, as did " free subjects."

250 THE UNCONSTITUTIONALITY OF SLAVEEY.
tions ; but its meaning is sometimes indefinite, and sometimes
different from what it appears to be in others. For example. In
the then existing Declaration of Rights of the State of Delaware,
(Sec. 6,) it would seem to be applied only to male adults. In the
then existing " constitution and form of government " of Maryland,
(Sec. 42,) it would seem to include only males, but raales under
as well as over twenty-one years of age. Again, in the " Declara
tion of Rights" of the sarae State, (Sees. 17 and 21,) it would
seem to include men, women, and children. In the " Declaration
of Rights " of North Carolina, (Sees. 8, 9, 12, and 13,) it would
seem to include men, women, and children. Again, in the " con
stitution or form of government" of the same State, (Sees. 7 and
8,) it would seem to mean only male persons.
The result was, that the precise legal meaning of the word was
not sufficiently settled by usage in tkis country, nor had the word
itself been so generally adopted in the State constitutions, as to
make it either a safe or proper one to be introduced into the repre
sentative clause in the United States constitution. It would also
have been equally objectionable with the words "free persons," in
its liability to be interpreted as the correlative of slavery.
What term, then, should the United States constitution have
adopted to distinguish the full members of the state from unnat
uralized persons ? " Free subjects " was the only term, whose
meaning was well settled, and with which the whole people of the
United States had ever been acquainted, as expressing that idea,
and no other. But the word " subject," we have already men
tioned, was no longer appropriate. By retaining the word " free,"
which was the significant word, and substituting the word " per
sons" for " subjects," the same body of people would be described
as had before been described by the term " free subjects," to wit,
all the full members of the state, the native and naturalized per
sons, raen, women, and children, as distinguished frora persons of
foreign birth, not naturalized. What terra, then, other than " free
persons," was there more appropriate to the description of this
body of the people ?
The word " free," it must be constantly borne in raind, if intro
duced into the constitution, would have to be construed with refer
ence to the rest of the instrument, in which it was found, and of
course with reference to the government established by that instru
ment. In that connection, it could legally mean nothing else than
the members of the state, as distinguished from others, unless, (as

WHY THE WOEDS "FREE PERSONS" WERE USED. 251
was not the case,) other things should be introduced into the
instrument to give the word a different meaning.
The word " free," theri, was an appropriate word, in itself, and,
in its technical sense, (which was its presumptive sense,) it was pre
cisely ihe word, to be used in the constitution, to describe wilh
perfect accuracy all that body of the people, native and naturalized,
who were full members of the state,* and entitled, of right, to the
full liberty, or political freedom, secured by the laws, as distin
guished from aliens and persons partially enfranchised. In short,
it described, with perfect accuracy, those who were free of the
government established by the constitution. This was its precise
legal meaning, when construed, as it was bound to be, with refer
ence to the rest of the instrument ; and it was the only meaning
that it could have, when thus construed.
A word of this kind was wanted — that is, a word of precisely
the same meaning, which the word free, in ils technical sense,
bears, with reference to the rest of the instrument and the govern
ment established by it, was wanted — because representation and
taxation were to be based upon the persons described, and perfect
accuracy of description was therefore all imporlant.
Now, those who object to the term " free persons" being taken
in that sense, are bound to show a better term that might have
been used to describe the same class of persons. I think there is
not anoiher word in the language, technical, or otherwise, that
would have described them so accurately, or so appropriately.
The term " freemen," we have seen, would not have been so
appropriate, for it was liable to be taken in a narrower significa
tion, so as to include only male adults, or persons entitled to the
elective franchise. But " free persons" included men, women, and
children, voters and non-voters, who were entitled to protection
under the laws as of right.
'¦' People," " residents," and " inhabitants " would not do, because
they included all persons living in the country, native, naturalized,
and aliens.
The only other Word, that could have been used, was " citizens.'
Perhaps if that word had been used, the courts, construing it with
reference to the rest of the instrument, would have been bound to
put the same construction upon it that they were bound to put
upon the words " free persons." Nevertheless, there were deci
sive objections against the adoption of it in the representative clause.
The word " citizens " was not, at tkat time certainly, (even if it be

2^ THE UNCONSTITUTIONALITY OF SLAVERY.
now,) a word that had acquired any such definite meaning, either
in England, or in this country, as describing the great body of free
and equal members of the state, men, women, and children, as
had the word " free.'' In fact, it had probably never been used in
that sense at all in England ; nor in this country up to the time
of tke revolution. And it is probable, (as will hereafter be seen,)
that it had never been used in that sense in this country, up to the
adoption of the constitution of the United States, unless in the
single constitution of Massachusetts. Its raeaning, in this country,
is, to this day, a matter of dispute. Lawyers, as well as others,
differ about it, as will presently be seen.
The word " citizen" is derived from the Latin civis; and its true
signification is to describe one's relations to a city, rather than to a
state. It properly describes either a freeman of a city, or a mere
resident, as will be seen by the definitions given in the note.*

* " Civis, a citizen ; a freeman or woman ; a denizen." — Ainsworth. ,
"Citizen, a freeman of a city; not a foreigner ; not a slave." — Johnson.
"Citizen, a freeman of a city." — Bailey.
" Citizens (cives) are either freemen, or such as reside and keep a family in ihe
dty, ^c., and some are citizens and freemen, and some are not, who have not so
great privileges as the others." — Williams' Law Dictionary ; Cunningham's do.
"Citizen, a native or inhabitant of a city, vested with the freedom and rights
thereof." — Rees' Cyclopedia.
" The civil goverument of the city of London is vested by charters and grants
from the kings of England, in its own corporation, or body of citizens." — Rees'
Cyclopedia. " Citoten, (Fr.) citizen, an inhabitant, or freeman of a city." — Boyer.
" Citizen, an inhabitant of a city; one who dwells or inhabits in zdty; one
who possesses or enjoys certain privileges of a city; a freeman of a city; one wbo
follows, pursues, or practises the trades or businesses of a city, as opposed to those
who do not. " — Richardson.
" Though they are in the world, they are not of it, as a citizen of one city may
live in another, and yet not be free of it, nor properly of it, but a mere stranger
and a foreigner." — Bishop Beveridge, cited by Richardson.
"Citizen. 1. The native of a city, or an inhabitant who enjoys the freedom
and privileges of the city in which he resides ; the freeman of a city, as distin
guished from a foreigner, or one not entitled to its franchises. * * *
S. In the United States, a person, native or naturalized, who has the privilege
of exercising the elective franchise, or the qualifications which enable him to vote
for rulers, and to purchase and hold real estate." — Webster.
" Citizens, persons. One who, under the constitution and laws of the United
Slates, has a right to vote for representatives in congress, and other public officers,
vciAwho is qualified to fill offices inthe gift of the people." — Bouvier's {American)
Law Diet.
Kent denies that citizenship depends on one's right qf suffrage, and says that
women and children are citizens. — 2 Kent, 258, note in third edition.
I am not aware that Story anywhere gives a definition of the word citizen, as it

WHY THE WOEDS "FREE PERSONS" WERE ' USED. 253
It will be seen also, by these definitions, that, taking the word
in Its best sense, and also with reference to the state, it could, at
most, only have been held synonymous with the " free persons"
or "freemen" of the state; and that we should then have been
obliged to employ these latter terms, in their technical senses, in
order to define it.
It would also have been even more liable than the term " free"
lo the objection of impliedly excluding slaves; for in Rorae, where
the term was used, and whence it has come down to us, they had
slaves, who of course were not regarded as citizens ; while in
England, whence the term "free" was borrowed, they had no
slaves. The term " free citizen" was also used in the then existing
State constitutions of Georgia and North Carolina, where they
held .slaves, (though not legally.) If, then, the word had been
employed in the United States constitution, there would have been
at least as much reason to say that it excluded slaves, as there
would be for saying that the word " free " e.xcluded them.
The term "citizen" was objectionable in still another respect,
viz., that it seems to have been previously, as it has been since,
employed to define those who enjoyed the elective franchise. But
it would be unreasonable that the constitution should base repre
sentation and taxation upon a distinction between those enjoying"
the elective franchise, and " all other persons" — it being left with
the States to say who should enjoy that franchise. Yet, if the
constitution had used the word " citizen " in connection with rep
resentation and taxation, it might have given some color to that
idea. But to prove how inappropriate would have been the use 'of the
word " citizens," in the representative clause — where a word of a

is used in the constitution. He says, that "every citizen of a State is ipso facta
a citizen of the United States ;" and that " a person who is a naturalized citizen
of the United States, by a like residence in any State in the Union, becomes ipso
facto a citizen of that State." — (3 Com. on Const., p. 566-6.) But this saying
that a citizen of a Stale is a citizen of the United States, and vice versa, gives us
no information as to who is either a citizen of a Stale, or of the United States,
other than those " ¦naturalized." by act of Congress.
These authorities show that the word citizen has had different meanings, and
that its meaning was not, at the adoption of the constitution, and even now is not,
well settled, and therefore that it was not a proper word to be used in a clause
where certainty was so important.
It is especially uncertain whether the word citizens would have included women
and children, as do the words "free persons."
22

254 THE UNCONSTITUTIONALITY OF SLAVERY.
precise and universally known meaning was required — the follow
ing facts are sufficient ; for we are to look at the word as people
looked at it at that day, and not as we look at it now, when it has
grown into use, and we have become familiar with it.
Of all the State constitutions in existence in 1789, the word
citizen was used in but tkree, to wit, those of Massachusetts, North
Carolina, and Georgia ; and in those, only in the following man
ner :
In the constitution of Massachusetts it was used some half dozen
times, and in such connections as would indicate that it was used
synonymously with the members of the state.
In the constitution of North Carolina it was used but once, (Sec.
40,) and then the term "free citizen," was used; thus indicating,
either that they had raore than one kind of citizens, or that the
word citizen itself was so indefinite that its meaning would be
liable to be unknown to the people, unless the word free were
used to define it.
In the constitution of Georgia it was used but once, (Art. 11,)
and then in the same manner as in the constitution of North Car
olina, that is, with the word free prefixed to it for the purpose of
definition. In the constitutions of the other ten States, (including the char
ters of Rhode Island and Connecticut,) the word citizen was not
used at all.
In the Articles of Confederation it was used but once, (Art. 4, Sec.
1,) and then the term was, as in the constitutions of Georgia and
North Carolina, "free citizens."
So that there was but one constitution, (that of Massachusetts,)
out of the whole fourteen then in the country, in which the word
citizen could be said to be used with any definite meaning attached
to it. In the three other cases ip which it was used, its own indefi
niteness was confessed by the addition of the word /ree, to define it.
A word so indefinite, and so little known to the people, as was
the word citizen, was of course entirely unsuitable to be used in
the representative clause for the purpose of describing the native
and naturalized members of the state, men, women and children,
as distinguished from persons not naturalized.
For all these reasons the word citizens was objectionable ; while
in reference to slavery, it would seem to have been not one whit
better than the words " free persons."
Finally, the term " free persons " was much more appropriate,

WHY THE WOEDS "FREE PERSONS " WERE USED. 255
in itself, to designate the members of a free state, of a republican
government, than was the word citizen, which, of itself, implies
ao necessary relationship to a free state, any more than to an
tristocracy. What objection was there, then, to the use of the words " free
persons," in the constitution, for describing the members of the
state? None whatever, save this, viz., the liability of the words
to be perverted from that meaning, if those who should administer
the government should be corrupt enough to pervert them. This
was the only objection. In every other view, the words chosen,
(as well the words " free persons" as the words " all other per
sons,"*) were the best the English language afforded. They
were the most accurate, the most simple, the most appropriate, to
express the true idea on which a classification for purposes of rep
resentation and taxation should be founded.
These words, then, being, in tkemselves, the best that could be
used, could the North have reasonably objected to their use ? No.
They could not say to the South, " We fear you do not understand
the legal meaning which the word free will bear in this instru
ment." For everybody knew that such was the meaning df that
word when used to describe men's relation to the state ; and every
body was bound to know, and every lawyer and judge did actually
know, that the word, if used in the manner it is in the constitution,
could legally be construed only with reference to the rest of the
instrument, and consequently could describe only one's relation to
the government established by the instrument ; that it was only by
violating all legal principles of interpretation that it could be made
to describe any merely personal relation between man and man,
illegal and criminal in itself, and nowhere else recognized by the
instrument, but really denied by its whole purport.
The legal meaning of the word, then, was undoubted ; and that
was all the North could require. They could not require that
other language should be introduced for the special purpose of
preventing a fraudulent construction of this word. If it had been
intended to form the constitution on the principle of making every
thing so plain that no fraudulent construction could possibly be put
upon it, a new language must have been invented for the purpose ;
the English is wholly inadequate. Had that object been attempted,
the instrument must have been interminable in length, and vastly
?See Chap. 20 and 22.

256 THE UNCONSTITUTIONALITY OF SLAVERY.
more confused in meaning than it now is. The only practicable
way was for the instrument to declare its object in plain terms in
the preamble, as it has done, viz., the establishment of justice, and
the security of liberty, for " the people of the United States, and
their posterity," and then to use the most concise, simple, and
appropriate language in all the specific provisions of the instru
ment, trusting that it would all be honestly and legally interpreted,
with reference to the ends declared to be in view. And this rule
could no more be departed from in reference to slavery, than in
reference to any other of the many criraes then prevalent.
It would have been only a mean and useless insult to the honest
portion of the Soulk, (if there were any honest ones amongst them,)
to have said to the whole South, (as we virtually should have
done if any specific reference to slavery had been made,) " We
fear you do not intend to live up to the legal meaning of this
instrument. We see that you do not even enforce the State con
stitutions, which you yourselves establish ; and we have suspicions
that you will be equally false to this. We will, therefore, insert
a special provision in relation to slavery, which you cannot mis
construe, if you should desire to do so.''
The South would have answered, "Whatever may be your
suspicions of us, you must treat with us, if at all, on the presump
tion that we are honorable men. It is an insult to us for you to
propose to treat with us on any other ground. If you dare not
trust us, why offer to unite with us on any terms ? If you dare
trust us, why ask the insertion of specifications implying your
distrust? We certainly can agree to no instrument that contains
any imputations upon our own integrity. We cannot reasonably
be asked to defame ourselves."
Such would have been the short and decisive answer of the
South, as of any other community. And the answer would have
been as just, as it would be decisive.
All, then, that the North could ask of the South was to agree to
an honest instrument, that should " be the supreme law of the
land, anything in the constitution or laws of any State to the con
trary notwithstanding," and that all State, as well as national
officers, executive, legislative, and judicial, should swear to sup
port it. This the South were ready to do,- some probably iji good
faith, others in bad faith. But no compact could be formed
except upon the presumption that all were acting in good faith,
whatever reason they may have had to suspect the contrary on

"ALL OTHER PERSONS." 257
the part of particular portions of the country, or with reference to
particular portions of the instruraent. And it would have been as
foolish as useless to have suggested the idea of especial guards
against fraudulent constructions in particular cases.
It was a great point gained for liberty, to get the consent of the
whole country to a constitution that was honest in itself, however
little prospect there might be that it would be speedily enforced in
every particular. An instrument, honest in itself, saved the' char
acter and conscience of the nation. It also gave into the hands of
the true friends of liberty a weapon sure to be sufficient for their
purposes, whenever they should acquire the numbers necessary to
wield it to that end.

CHAPTER XXII.
"ALL OTHER PERSONS."
It has been already shown, (in chapter 20,) that there was a
sufficient, and even a necessary reason for the use of the words
"all other persons," in preference to the word " aliens."
That reason was, that the word " alien " had a technical mean
ing, implying exclusion frora office, exclusion from suffrage, and
exclusion from the right to hold real estate ; whereas, the constitu
tion intended no exclusion whatever, except simply from the three
offices of president, senator, and representative. The word
" aliens,'' then, would have been a false word of itself, and would
also have furnished ground for many mischievous and unfriendly
implications and prejudices against the parties concerned.
If, then, only this single class of persons had been intended,
there was ample reason for the use of the words, " all other per
sons ;" while, on the slave hypothesis — that is, on the hypothesis
that the words include only slaves, as they are generally supposed
to do — no reason at all can be assigned for the use of these words,
instead of the word slave, except such a reason as we are not at
liberty to attribute to a law or constitution, ifby any other reason
able construction it can be avoided.
But whether the words " all other persons" include slaves, or
unnaturalized persons, there was still another reason for the use
of the words, " all other persons," in preference either to the
22*

258 THE unconstitutionality of SLAVEEY.
word slaves, or the word aliens. That reason was, that the three
fifths class was to include more than one kind of persons, whether
that one kind were slaves or unnaturaliz;ed persons. "^ Indians
not taxed " were to be included in the same count, and, therefore,
neither the word slaves, nor the word aliens, would have correctly
described all the persons intended.
So far as I am aware, all those who hold slavery to be constitu
tional, have believed that " Indians not taxed" were excluded both
from the count of units, and the three fifths count; that the words
"all other persons" refer solely to slaves; and that those words
were used solely to avoid the mention of slaves, of which the peo
ple were ashamed. They have believed tkese facts just as firmly
as tkey have believed that slavery was constitutional.
I shall attempt to prove that " Indians not taxed," instead of
being excluded from both counts, were included in the three fifths
class, and, consequently, that the words " all other persons" were
perfectly legitimate to express the two kinds of persons, of which
that class were to be composed. If this proof be made, it will
furnish anoiher instance in which those who hold slavery to be
constitutional, have made false law, by reason of their abandoning
legal rules of interpretation, and construing everything in the
light of their assumed insight into certain knavish intentions that
are nowhere expressed.
The clause reads as follows : —
" Representatives and direct taxes shall be apportioned among
the several States which may be included within this union, ac
cording 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 question arising on this clause is, whether there be any
class made by it, except the class of units, and the three fifths
class ? Or whether there be three classes, to wit, the class of units,
the three fifths class, and another class, " Indians not taxed," wko
are not to be counted at all?
To state the question is nearly enough to answer it, for it is
absurd to suppose there is any class of " the people of the United
States" who are not to be counted at all. " Indians not taxed,"
(that is, not taxed directly, for all Indians are taxed indirectly,)
are as much citizens of the United States as any other persons;

" ALL OTHEE PERSONS." 259
and they certainly are not to be unnecessarily excluded from the
basis of representation and taxation.*
It would seem to be grammatically plain that the words " all
other persons " include all except those counted as units. And it
would probably have always been plain that such was their mean
ing, but for the desire of some persons to make them include
slaves, and their belief that, in order to make them include slaves,
they raust make them include nobody but slaves.
The words " including those bound to service for a term of
¦gears, and excluding Indians not taxed," are parenthetical,! and
might have been left out, without altering the sense of the main
sentence,, or diminishing the number of classes. They are thrown
in, not to increase the number of classes, but simply to define who
may, and who may not, be included in the^r*^ class, the class of
units. This is proved, not only by the fact, that the words are paren
thetical, (which would alone be ample proof,) but also by the fact
that the two participles, "including" and "excluding," are con
nected with each other by the conjunction " and," and are both
parsed in the same manner, both having relation to the " nuraber"
counted as units, and to that alone.
The words, " excluding Indians not taxed," exclude the Indians
mentioned simply from the count of the preceding " number," the

* In saying that Indians vjere " citizens of the United States," I of course mean
those living under the actual jurisdiction of the United States, and not those who,
though living within the chartered limits of the States, had never had the State or
United States jurisdiction extended over them ; but by treaty, as well as of right,
retained their independence, and were governed by their own usages and laws.
It may be necessary for tbe information of some persons to state that the juris
dictions of the several States have not always been coextensive with their chartered
limits. The latter were fixed by the charters granted by the crown, and had reference
only to the boundaries of the respective colonies, as against each olher. "¦ But the
rights of the colonies, (and subsequently ofthe Slates,) within their chartered lim
its, were subject to the Indian right of soil, or occupancy, except so far as that
right should be extinguished by the consent of the Indians. So long as the Indi
ans should choose to retain their right of soil, or occupancy, and their indepeu-
dence, and separate government, our governments bad no jurisdiction over them,
and they were not citizens of the United States. But when they surrendered their
right of soil, or occupancy, abandoned their separate government, and came within
" our jurisdiction, or the States and the United States extended their jurisdiction
over them, they became citizens of the United States, equally wilh any other per
sons. At the adoption of the constitution, there were several independent tribes
within the chartered limits of the States. Others had surrendered their indepen-
¦ dent existence, and intermingled with the whites.
t I have inclosed them in parenthesis to show the sense more distinctly.

260 THE UNCONSTITUTIONALITY OF SLAVERY.
number to which the word " excluding" relates ; that is, the count
of units. They do nothing more. They do not exclude them
from any other count ; they do not create, or at all purport to cre
ate, out of them a distinct class. They do not at all imply that
they are not to be counted at all. They do riot, of tkemselves,
indicate whether these Indians, that are excluded from the count
of units, are, or are not, to be included in, or excluded from,
any other count. They simply exclude them from the first count,
leaving them to be disposed of as they may be, by the rest of the
clause. To make this point more evident, let us write the clause again,
supplying two words that are necessary to make the sense more
clear. " Representatives and direct taxes shall be apportioned among
the several States which may be included within this union, ac
cording to their respective numb^s, which shall be determined by
adding to the whole number of free persons, (including therein
those bound to service for a terra of years, and excluding therefrom
Indians not taxed,) three fifths of all other persons."
Such is plainly the true grammatical construction of the sen
tence ; and the phrases, " including therein" and " excluding there
from," both plainly relate to one and the same number or count,
to wit, the number counted as units, and to tkat only. Grammat
ically, one of these phrases has no more to do with the class of
" all other persons," than the other.
On grammatical grounds there would be just as much reason in
saying that the word " including" includes servants in the class of
' all oiher persorts," as there is in saying that the word " exclud
ing" excludes Indians from that class ; for it is perfectly apparent,
that the words including and excluding refer only to one and the
same number, and that number is the nuraber counted as units.
To illustrate this point further, let us suppose these parenthetical
sentences to have been transposed, and the clause to have read thus:
" By adding to the whole nuraber of free persons, (excluding
therefrom Indians not taxed, and including therein those bound to
service for a term of years,) three fifths of all olher persons."
It is plain that the sense of the clause would not have been in
the least altered by this transposition. Yet would anybody then
have supposed that Indians were excluded from the class of " all
other persons V Or that " those bound to service for a term of
years" were included in the class of " all other persons 1" Cer-

" ALL OTHER PERSONS." 261
tainly not. Everybody would then have seen that the words in
cluding and excluding both related only to the preceding number
— the number counted as units. Yet it is evident that this trans
position has not at all altered the grammatical construction or the
legal sense of the clause.
The argument for slavery, while it clairas that the word includ
ing includes servants in the number of units only, claims that the
word excluding excludes Indians both from the number of units,
and also from the number of " all other persons ;" that the word
includi?ig includes servants in only one count, but that the word
excluding excludes Indians from both counts ; whereas it is per
fectly manifest that the two words, including and excluding, relate
to one and the same count, to wit, the count of units, and to that
alone. There would be just as rauch reason, on grammatical grounds
in saying that the word including includes servants in both counts,
as there is in saying that the word excluding excludes Indians from
both counts.
Inasmuch, then, as the words of the parenthesis, viz., the words
" including those bound to service for a terin of years, and exclud
ing Indians not taxed," refer only to the count of units, and serve
only to define those who may, and those who may not, be included
in that count, they do not, and cannot, create any new class,
additional to the two named exteriorly to the parenthesis, to wit,
the class of units, and the three fifths class.
There being, then, but two classes made, and " Indians not
taxed," being specially excluded from the first, are necessarily
included in the last.
Both the grammar and the law of the clause, (though perhaps
not its rhetoric,) would therefore be adequately provided for, even
if there were no other persons than " Indians not taxed " to be
reckoned in the class of " all other persons ;" for " Indians not
taxed " are " other persons " than those counted as units. And« we
cannot, I think, make these words, " all other persons," imply the
existence of slaves, if we can find any other persons than slaves
for them to refer to.
Further. There being but two classes made, to wit, the class
of units and the three fifths class, and "Indians not taxed" bein^
excluded from the first, and therefore necessarily included m the
last, it would follow, if the constitution uses the word "free" as
the correlative of slaves, that it either considers these Indians as
daves, or that, for purposes of representation and taxation, it counts

262 THE UNCONSTITUTIONALITY OF SLAVERY.
them in the same class with slaves — a thing that, so far as I know
has never been done.
But perhaps it will still be said by the advocates of slavery, (for
this is all they can say,) that "Indians not taxed" are not to he
counted at all ; that they are to be excluded from both classes.
But this is, if possible, making their case still worse. It shows
how, in order to extricate themselves from one dilemma, they are
obliged to involve themselves in another — that of excluding .en
tirely from the popular basis of representation and taxation, a part
of those who are not only not slaves, but are confessedly actual
citizens. To say that " Indians not taxed " are not to be counted at all ;
that they are to be excluded both from the class of units and the
three fifths class, is not only violating the grammar of the clause,
(as has already been shown,) but it is violating all common sense.
Indians living under the governments of the States and the United
States — that is, within the territory over which the United States
and one of the several States have actually extended their civil
jurisdiction — are as much citizens of the United States as any
body else; and there is no more authority- given in the constitution
for excluding them from the basis of representation and taxation,
than there is for excluding any other persons whatever. In fact,
the language of the constitution is express, that all persons shall
be counted either in the class of units or in the three fifths class ;
and there is no escape from the mandate. The only exclusion
that the constitution authorizes, is the exclusion of " Indians not
taxed" from the count of units.
But perhaps it will be clairaed that Indians are not citizens, and
therefore they are excluded of course. But there is not the least
authority for this assertion, unless it be in regard to those tribes,
or nations, who, living within the chartered limits of the States,
have, nevertheless, retained their separate independence, usages,
and'laws, and over whom the States have not extended their civil
jurisdiction. The assertion is wholly groundless as to all those
Indians who have abandoned their nationality, intermingled with
the whites, and over whom the States have extended their juris
diction. Such persons vvere as much a part of the people of the
United States, and were as much raade citizens by the constitution,
as any other portion of the people of the country.
This exception of " Indians not ta.xed " from the count of units,
of itself iraplies that Indians are citizens ; for it implies that, but

"ALL OTHER PERSONS." 263
for this express exception, they would all have been counted as
units. Again. This exception cannot be extended beyond the letter
of it. It therefore applies only to those " not taxed;" and it ex
cludes even those only from the count of units ; thus leaving all
that are taxed to be counted as units ; which of course implies that
they are citizens. And if those Indians, who are taxed, are citizens,
those who are " not taxed" are equally citizens. Citizenship does
not depend at all upon taxation, in the case of the Indian, any
more than in the case of the white man ; if it did, a man would
be a citizen this year, if he happened to be taxed this year, and
yet lose his citizenship next year, if he should happen not to be
taxed next year.
But it will be asked. If Indians are citizens, why are they not
all counted as units? The reason is obvious. The numbers of
Indians in the different Stales were so unequal, and they contrib
uted so little to the resources of the States in which they lived,
tliat justice required that, in apportioning representation and taxa
tion among the separate States, some discrimination should be made
on account of this class of population. Being citizens, they must
be represented ; and being represented, their State must be taxed
for thera. And no better arrangement could be agreed on, without
making too many classes, than that of ranking them, (so far as
representation and taxation were concerned,) on au equality with
unnaturalized persons.
It being established that Indians are citizens, it follows that those
" not taxed " must be included in the basis of representation and
taxation, unless expressly excluded. But the express exclusion does
no more than exclude them from the count of units, and the ex
clusion cannot go beyond the letter. They are therefore necessa
rily included in the three fifths class, the class which embraces
" all other persons" than those counted as units.
If " Indians not taxed " were also to be excluded from the three
fifths class, the constitution would have said so ; and would also
have told us expressly how they should be counted, or that they
should not be counted at alL
The clause has thus been explained on the ground of there
being but two classes made by it, to wit, the class counted as units,
and the three fifths class ; which are all the classes that the gram
mar of the clause will allow to be made. It is to be remarked,
however, that if the grammar of the clause be disregarded, and

264

THE UNCONSTITUTIONALITY OF SLAVERY.

three classes be made, the clause will still be consistent with the
alien hypothesis. Indeed, it is immaterial, on the alien hypothesis,
whether two or three classes be made. Whether the slave hy
pothesis can be sustained without making more than two classes, I
leave for the advocates of slavery to determine.* They will, at
any rate, be obliged to admit that " Indians not taxed " are included
in the class described as " all other persons," and thus lose the
benefit of their stereotyped argument, that those words must mean
slaves, because they could mean nothing else. They will also be
obliged to give up their old surmise about the motive for using the
words " all other persons " — a surmise which has always, (in their
opinion,) wonderfully strengthened their law, although it seems to
have contained not a particle of fact, t

* I think it cannot be sustained without making three classes, for the reason
before given, viz., that the words " all other persons " must not be held to mean
slaves, if there be any other persons that they can apply to.
f The foUowing illustration will make it perfectly apparent that the represeni-
ative clause of tho constitution requires all the people of the country, (" Indians
not taxed," as well as others ), to be counted in making up the basis of represent
ation and taxation ; that it requires and permits them to be divided into twt>
classes only, viz., the class of units, and the three-fifths class ; and, finally, that it
imperatively requires that " Indians not taxed " be included in the three-fifths
class, or class described as " all other persons,"
The illustration ia this. Suppose Congress were to order a census of the people,
for the purpose of making a constitutional apportionment of representation and
taxation, and should require that the several classes of persons be arranged ia
separate columns, eaoh under its appropriate head, according to tlx terms used in tht
constitution. The table would stand thus :

CLASS OF tlKITS.

THREE-PirTHS CLASS.

"Th& whole number of free persons,
inoluding those bound to service for a
term of yeara, and excluding Indians not
taxed."

" All other persons."

This table follows the directions of the constitution, to the tetter. And yet, it
clearly makes but two olasMs ; and tho two classes clearly include all the people
of tha United Statea. The void "txclwting" clearly exoludss "Indians not

CHAPTER XXIII.
ADDITIONAL ARGUMENTS ON THE WORD "FREE."

ARGUMENT I.
The constitutional argument for slavery rests mainly, if not
wholly, upon the word /ree, in the representative clause; (Art.
Sec. 2.)
Yet this clause does not, of itself, at all purport to fbe, change
or in any way affect, the civil rights or relations of any single
individual. It takes it for granted tkat tkose rights and relations
are fixed, as tkey really are, ly other parts of the instrument. It
purports only to prescribe the manner in which the population
shall be counted, in raaking up the basis of representation and
taxation ; and to prescribe that representation and taxation shall bo
apportioned among the several States, according to the basis so
made up. This is the whole purport of the language of the
clause, and the whole of its apparent object ; and it is a palpable
violation of all legal rules to strain its legal operation beyond this
purpose. To use the clause for a purpose nowhere avowed,
taxed " only from the first class. The seoond olasa also clearly includes all that
are exchided from the first. It, therefore, clearly includes "Indians not taxed."
These facts entirely overthrow the argument that " all other persons " must
mean slaves, because there were no other persons whom they could mean.
It ia of no importance to say that " Indians not taxed " have neuer been included
in the three-fifths count. The answer is. There is the plain letter of the constitution;
and if Congress have not complied with it, it has been owing either to their
ignorance, or their corruption.
23

'266 THE UNCONSTITUTIONALITY OF SLAVERY.
either in itself or the rest of the instrument, viz., that of destroy
ing rights with which it does not at all purport to intermeddle, is
carrying fraudulent and illegal interpretation to its last extent.
Yet this provision for simply counting the population of the
country, and apportioning representation and taxation according to
that count, has been transmuted, by unnecessary interpretation,
into a provision denying all civil rights under the constitution to a
part of the very " people " who are declared by the constitution
itself to have " ordained and established " the instrument, and
who, of course, are equal parties to it with others, and have equal
rights in it, and in all the privileges and immunities it secures.
If parties, answering to the several descriptions given of them
in this clause, can he found, (so as simply to be counted,) without
supposing any change or destruction of individual rights, as estab
lished by other parts of the instrument, we are bound thus to find
and count them, without prejudice to any of their rights. This is
a self-evident proposition. That parties, answering to the several
descriptions, can be found, without supposing any change or de
struction of individual rights,'as contemplated by the other parts of
the instrument to exist, has already been shown. And this fact is
enough to settle the question as to the legal effect of the clause.
The whole declared and apparent object of the clause, viz., the
counting of the population, and the apportionment of the represen
tation and taxation according to that count, can be effecte4 with
out prejudice to the rights of a single individual, as established by
the rest of the instrument. This being the case, there is no
epithet strong enough to describe the true character of that fraud
which would pervert the clause to a purpose so entirely foreign to
its declared and apparent object, as that of licensing the denial
and destruction of men's rights ; rights everywhere implied
throughout the entiire instrument.

ARGUMENT H.
It would have been absurd to have used the word "/ree" in a
sense correlative with slaves, because it is a self-evident truth that,
taking the woid in that sense, aZ^ raen are naturally &'a^ rightfully
free. This truth, like all other natural truths, must be presumed
to be taken for granted by all people, in forming their constitu-
iions, unless they plainly deny it. Written constitutions of gov
ernment could not be established at all, unless they took for

ADDITIONAL ARGUMENTS ON THE WORD "FREE." 267
granted all natural truths that were not plainly denied ; because,
the natural truths that must be acted upon in the administration
of government are so numerous, that it would be impossible to
enumerate them. They must, therefore, all be taken for granted
unless particular ones be plainly denied. Furthermore, this par
ticular truth, that all men are naturally free, had but recently been
acknowledged, and proclaimed even, by the same people who now
established the constitution. For this people, under such circum
stances, to describe themselves, in their constitution, as " the
whole number of free persons, and three fifths of all other per
sons," (taking the word "free" in the sense correlative with
slaves,) would have been as absurd, in itself, (independently of
things exterior to the constitution, and which the constitution cer
tainly cannot be presumed to sanction,) as it would have been to
have described themselves as " the whole number of males and
females, and three fifths of all other persons."
Such an absurdity is not to be charged upon a people, upon
the strength of a single word, which admits of a rational and
appropriate construction. ARGUMENT III.
The constitution is to be construed in consistency with the
Declaration of Independence, if possible, because the two instru
ments are the two great enactments of the same legislators — the
people. They purport to have the same objects in view, viz., the
security of their liberties. The Declaration had never been re
pealed, and legal rules require that an enactment later in time than
another, more especially if the former one be not repealed, should
be construed in consistency with the earlier one, if it reasonably
can be, unless the earlier one be opposed to reason or justice.*
* Lord Mansfield says, " Where there are different statutes in pari materia,
(upon the same subject,) though made at difierent times, or even expired, and not
referring to each other, they shall be taken and construed together, as one system,
and explanatory of each other." — 1 Burrows, 447.
" It is an established rule of construction, that statutes in pari materia, or upon
the same subject, must be construed with reference to each other ; that is, that what
is clear in one statute, shall be called in aid to explain what is obscure and ambig
uous in another." — 1 Blackstone, 60, note; I Kent, 462.
Rutherforth says, " In doubtful matters it is reasonable to presume that the
name person is always in the same mind, when nothing appears to the contrary ;
that whatever was his design at one time, the same is likewise his design al
another time, where no sufficient reason can be produced to prove an alteration of

268 THE UNCONSTITUTIONALITY OP SLAVERY.

ARGUMENT IV.
It is perfectly manifest, from all the evidence given in the pre
ceding pages, (including Part First of the argument,) that the word
" free," when used in laws and constitutions, to describe one class
of persons, as distinguished from another living under the same
laws or constitutions, is not sufficient, of itself, to imply slavery
as its correlative. The word itself is wholly indefinite, as to the
kind of restraint implied as its correlative.* And as slavery is the
worst, it is necessarily the last, kind of restraint which the law
will imply. There must be some other word, or provision, in the
instrument itself, to warrant such an implication against the other
class. But the constitution contains no such other word or pro
vision. It contains nothing but the siraple word " free." WhUe,
on the other hand, it is full of words and provisions, perfectly
explicit, that imply the opposite of slavery.
Under such circumstances, there can be no question which con
struction we are legally bound to put upon the word in the consti
tution. t

it. If the words, therefore, of any writing, will admit of two or more different
senses, when they are considered separately, but must necessarily be understood in
one of these senses rather than the other, in order lo make the writer's meaning
agree with what he has spoken or written upon some other occasion, the reason
able presumption is, that this must be the sense in which he used them." — Ru
therforth, B. 2, ch. 7, p. 331-2.
* See page 179.
1 1 doubt if a single instance can be found, even in the statutes of the slaveholding
States themselves, in force in 1789, where the word free was used, (as the slave
argument Claims that it was used in the constitution,) lo describe either white per
sons, or the mass of the people other than slaves, (that is, the white and free
colored,) as distinguished ./rom the slaves, unless the statute also contained the
word slave, or some other evidence, beside the word yrce itself, that that was the
sense in which the word free was used. If there were no such statute, it proves
that, by the usage of legislation, in 1789, even in the slaveholding States them
selves, the word ./"ree was insuflScient, of itself, to imply slavery as its correlative.
I have not thought it necessary to verify this supposition, by an examination of
the statute books of the States, because the labor would be considerable, and the
fact is not necessary to my case. But if the fact be as I have supposed, it takes
away the last shadow of pretence, founded on the usage of legislation at that day,
that such was the sense in which the ¦wotifree was used in the constitution. 1
commend to the advocates of slavery, (on whom rests the burthen of proving the
meaning ofthe word,) the task of verifying or disproving the supposition.

ADDITIONAL ARGUMENTS ON THE WORD "FREE." 269

ARGUMENT V.

Even if the word "free" were taken in the ,sense correlative
with slaves, and if the words " importation of persons " were taken
to authorize the importation of slaves, slavery woulcl, nevertheless,
for tke most part, be now unconstitutional. The constitution
would then sanction the slavery of only those individuals who
were slaves at the adoption of the constitution, and those who were
imported as slaves. It would give no authority whatever for the
enslavement of any born in the country, after the adoption of the
constitution. The constitution is the supreme law of the land, and it operates
" directly on the people andfor their benefit."*- No State laws or
constitutions can stand between it and the people, to ward off its
benefits from them. Of course, it operates upon all the people,
except those, if any, whom it has itself specially e.xcepted from its
operation. If it have excepted any from its operation, it has, at
most, excepted only' those particular individuals who were slaves
at the adoption of the constitution, and those wbo should subse
quently be imported as slaves. It has nowhere excepted any that
should thereafter be born in the country. It has nowhere author
ized Congress to pass laws excepting any who should be born in
the country. It has nowhere authorized the States, or recognized
the right of the States, to except frora its operation any persons
born in the country after its adoption. It has expressly prohibited
the States from making any such exception ; for it has said that
itself " shall be the supreme law of the land," (operating " di
rectly on the people, and for their benefit," the Supreme Court
say,) " anything in the constitution or laws of any State to the
contrary notwithstanding." If the States can say, previous to any
one person's being born under the constitution, that, when born,
the constitution shall not operate upon that person, or for his
benefit, they may say in advance that it shall not operate upon,
or for the benefit of, any person whatever who may be born under
the constitution, and thus compel the United States government
to die out, or fall into the hands of the naturalized citizens alone,
for the want of any recruits from those born in the country.

* The Sup. Court United States say, of " the government of the Union," that
* its powers are granted by the people, and are to be exercised directly on them,"
(that is, upon them as individuals,) " andfor their benefit." — 4 Wheaton, 404, 406.
23*

270 THE UNCONSTITUTIONALITY OF SLAVEEY.
If, then, the slavery of those who vvere slaves at the adoption
of the constitution, and of those who have since been imported as
slaves, were constitutional, the slavery of all born in the country
since the adoption of the constitution, is, nevertheless, unconstitu
tional.*

CHAPTER XXIV.
POWER OF THE GENERAL GOVERNMENT OVER
SLAVERY.
It is a common assertion that the general government has no
power over slavery in the States. If by this be meant that the
States rnay reduce to slavery the citizens of the United States
within their limits, and the general government cannot liberate
them, the doctrine is nullification, and goes to the destruction of
the United States government within the limits of each State,
whenever such State shall choose to destroy it.
The pith of the doctrine of nullification is this, viz., that a State
has a right to interpose between her people and the United States
government, deprive them of its benefits, protection, and laws, and
annul their allegiance to it.
If a State have this- power, she can of course abolish the gov
ernment of the United.jStau ' at pleasure, so far as its operation
within her own territory is cc erned ; for the government of the
United States is nolhing, any further than it operates upon the
persons, property, and rights of the people.! If the States can
arbitrarily intercept this operation, can interpose between the peo
ple and the government and laws of the United States, they can
of course abolish that government. And the United States consti
tution, and the laws made in pursuance thereof, instead of being
" the supreme law of the land," " anything in the constitution or
laws of any State to the contrary notwithstanding," are dependent
entirely upon the will of the State governments for permission to
be laws at all.
A State law reducing a man to slavery, would, if valid, interpose
* See Chap. 13.
t The Supreme Court ofthe United States say, the "powers" ofthe general
government " are to be exercised directly on the people, and for their ben^t." — 4
Wheaton, 206.

POWER OF THE GENERAL GOVERNMENT OVER SLAVERY. 271
between him and the constitution and laws of the United States
annul their operation, (so far as he is concerned,) and deprive hini
of their benefits. It would annul his allegiance to the United
States ; for a slave can owe no allegiance to a government that
either will not, or cannot protect him.
If a State can do this in the case of one man, she can do it in
the case of any number of men, and thus completely abolish the
general government within her limits.
But perhaps it will be said that a' State has no right to reduce
to slavery the people generally within her limits, but only to hold
in slavery those who were .slaves at the adoption of the constitution,
and their posterity.
One answer to this arguraent is, that, at the adoption of the con
stitution of the United States, there was no legal or constitutional
slavery in the States. Not a single State constitution then in
existence, recognized, authorized, or sanctioned slavery. All the
slaveholding then practised was merely a private crirae committed
by one person against another, like theft, robbery, or murder. All
the statutes which the slaveholders, through their wealth and influ
ence, procured to be passed, were unconstitutional and void, for
the want of any constitutional authority in the legislatures to enact
them. But perhaps it will be said, as is often said of them now, that
the State governments had all power tkat was not forbidden to tkem.
But this is only one of those bald ":9d g-ln-ing falsehoods, under
cover of which, even to this day, cor'^pt and tyrannical legislators
enact, and the servile and corrupt courts, who are made dependent
upon them, sustain, a vast mass of unconstitutional legislation,
destructive of raen's natural rights. Probably half the State legis
lation under which we live is of this character, and has no other
authority than the pretence that the government has all power
except what is prohibited to it. The falsehood of the doctrine is
apparent the moment it is considered that our governments derive
all their authority from the grants of the people. Of necessity,
therefore, instead of their having all authority except v/hat is for
bidden, they can have none except what is granted.
Everybody admits that this is the true doctrine in regard to the
United States government; and it is equally true of the State
governments, and for the same reason. The United States con
stitution, (amendment 10,) does indeed specially provide that the
U. S. government shall have no powers except what are delegated

272 THE UNCONSTITUTIONALITY OF SLAVERY.
to it. But this amendment was inserted only as a special guara
against usurpation. The government would have had no addi
tional powers if this amendment had been omitted. The siraple
fact that all a government's powers are delegated to it by the peo
ple, proves that it can have no powers except what are delegated.
And this principle is as true of the State governraents, as it is of
the national one ; although it is one that is almost wholly disre
garded in practice.*
The State governraents in existence in 1789 purported to be
established by the people, and are either declared, or must be pre
sumed, to have been established for the maintenance of jus.tice, the
preservation of liberty, and the protection of their natural rights.
And those governments consequently had no constitutional author
ity whatever inconsistent with these ends, unless some particular
powers of that kind were explicitly granted to them. No power
to establish or sustain slavery was granted to any of them. All
the slave statutes, therefore, that were in existence in the States,
at the adoption of the United States constitution, were unconstitu
tional and void ; and the people wko adopted the constitution of tke
United States miist be presumed to kave known tkis fact, and acted
upon it, because everybody is presumed to know the law. The
constitution of. the United States, therefore, can be presuraed to
have made no exceptions in favor of the slavery then existing in
the States.t
But suppose, for the sake of the argument, that slavery had been
authorized by the State constitutions at the time the United States
constitution was adopted, the constitution of the United States
would nevertheless have made it illegal ; because the United States
constitution was made " the supreme law of the land," " anything
* The doctrine that the governmeni has all power except what is prohibited to it,
is of despotic origin. Despotic government is supposed to originate, and does in
fact originate, with the despot, instead of the people ; and he claims all power over
them e.tcept what they have from time to time wrested from him. It is a consist
ent doctrine that such governments have all power except what is prohibited to
them. But where the government originates with the people, precisely the oppo
site doctrine is true, viz., that the government has no power except whal is granted
to it.
t If, however, they had not known that the existing slavery was unconstitutional,
and had proceeded upon the mistaken belief that it was constitutional, and had
intended to recognize ilas being so, such intended recognition would have availed
nothing ; for it is an established principle, recognized by the Supreme Court of
the United States, that " a legislative act, founded upon a mistaken opinion ot
what was law, does not change the actual state of the law, as to pre-existing
s." — I Cranch, 1 \ Peter's Digest, 678.

POWER OF THE GENERAL GOVERNMENT OVER SLAVERY, 273
in the constitution or laws of any State to the contrary notwith
standing." It' therefore annulled everything inconsistent with it,
iken existing in the Slate constitutions, as well as everything that
should ever after be added to them, inconsistent with it. It of
course abolished slavery as a legal institution, (supposing slavery
to have had any legal e'xistence to be abolished,) if slavery were
inconsistent with anything expressed, or legally implied, in the
constitution. Slavery is inconsistent with nearly everything that is either
e.xpressed or legally implied in the constitution. All its express
provisions are general, making no exception whatever for slavery.
All its legal implications are that the constitution and laws of the
United States are for the benefit of the whole " people of the
United States," and their posterity.
The preamble expressly declares that " We the people of the
United States" establish the constitution for the purpose of secur
ing justice, tranquillity, defence, welfare, and liberty, to " ourselves
and our posterity." This language certainly implies that all " the
people" who are parties to the constitution, or join in establishing
it, are to have the benefit of it, and of the laws made in pursuance
of it. The only question, then, is, who were " the people of the
United States?"
We cannot go out of the constitution to find who are the parties
to it. And there is nothing in the constitution that can limit this
word "people," so as to make it include a part, only, of" the peo
ple of the United States." The word, like all others, must be
taken in the sense most beneficial for liberty and justice. Be
sides, if it did not include all the then " people of the United
States," we have no legal evidence whatever of a single individual
whom it did include. There is no legal evidence whatever in the
constitution, by which it can be proved that any one man was one
of " the people," which will not also equally prove that the slaves
were a part of the people. There is nothing in the constitntion
that can prove the slaveholders to have been a part of " the peo
ple," which will not equally' prove the slaves to have been also a
part of them. And there is as much authority in the constitution
for e.xcluding slaveholders from the description, " the people of the
United Slates," as there is for excluding the slaves. The term
" the people of the United States " must therefore be held to have
included all " the people of the United States," or it can legally
be held to have included none.

274 THE UNCONSTITUTIONALITY OF SLAVERY.
But this point has been so fully argued already, that it need not
be dwelt upon here.*
The United States government, then, being iu theory formed
by, and for the benefit of, the whole " people of the United States,"
the question arises, whether it have the power of securing to " the
people" the benefits it intended for them? Or whether it is
dependent on the State goveTnments for permission to confer these
benefits on "the people?" This is the whole question. And if
it shall prove that the general government has no power of secur
ing to the people its intended benefits, it is, in no legal or reasona
ble sense, a government.
But kow is it to secure its benefits to the people ? That is the
question. The first step, and an indispensable step, towards doing it, is to
secure to the people their personal liberty. Without personal lib
erty, none of the other benefits intended by the constitution can be
secured to an individual, because, without liberty, no one can
prosecute his other rights in the tribunals appointed to secure them
to him. If, therefore, the constitution had failed to secure the
personal liberty of individuals, all the rest of its provisions might
have been defeated at the pleasure of the subordinate governments.
But liberty being secured, all the other benefits of the constitution
are secured, because the individiial can then carry the question of
his rights into the courts of the United States, in all cases where
the laws or constitution of the United States are involved.
This right of personal liberty, this sine qua non to the enjoyment
of all other rights, is secured by the writ of kabeas corpus. This
writ, as has before been shown, necessarily denies the right of
property in man, and therefore liberates all who are restrained of
their liberty on that pretence, as it does all others that are restrained
on grounds inconsistent with the intended operation of the consti
tution and laws of the United States.
Next after providing for the " public safety, in cases of rebellion
and invasion," the maintenance of courts for dispensing the priv
ileges of this writ is the duty first in order, and first in importance,
of all the duties devolved upon the general government; because,
next after life, liberty is the right most important in itself; it is
also indispensable to the enjoyment of all the other rights which

* Sec Part First, pages 90 to 94, sec. edition. Also the argument under the " Sixth
Rule of Interpretation," p. 182 to 189 of this part, and under the " Second Rule cited
for Slavery," p. 214 to 21G.

POWER OF THE GENERAL GOVERNMENT OVER SLAVERY. 275
the general government is established to secure to the people. All
the other operations of government, then, are works of raere
supererogation until liberty be first secured ; they are nothing but
a useless provision of good things for those who cannot partake of
thera. As the governraent is bound to dispense its benefits impartially
to all, it is bound, first of all, after securing " the public safety, in
cases of rebellion and invasion," to secure liberty to all. And tbe
whole power of the government is bound to be exerted for this
purpose, io the postponement, if need be, of everything else save
" the public safety, in cases of rebellion and invasion." And it is
the constitutional duty of the government to establish as many
courts as may be necessary, (no matter how great the number,)
and to adopt all other measures necessary and proper, for bringing
the means of liberation within the reach of every person who is
restrained of his liberty in violation of the principles of the consti
tution.* We have thus far, (in this chapter,) placed this question upon
the ground that those held in slavery are constitutionally a part of
" the people of the United States," and parties to the constitution.
But, although this ground cannot be shaken, it is not necessary to
be maintained, in order to maintain the duty of Congress to provide
courts, and all other means necessary, for their liberation.
The constitution, by providing for the writ of kabeas corpus,
without making any discrimination as to the persons entitled to it,
has virtually declared, and thus established it as a constitutional
principle, that, in this country, there can be no property in man ;
for the writ of kabeas corpus, as has before been shown,t necessa
rily involves a denial of the right of property in man. By declar
ing that the privilege of this writ " shall not be suspended, unless
when, in cases of rebellion or invasion the public safety may re
quire it," the constitution has imposed upon Congress the duly of
providing courts, and if need be, other aids, for the issuing of thia
writ in behalf of all human beings within the United Slates, who
may be restrained on claim of being property. Congress are
* It is not necessary, as some imagine, for Congress to enact a law ¦making slavery
illegal. Congress have no such power. Such a power would imply that slavery
was now legal. Whereas it is now as much illegal as it is possible to be made by
all the legislation iu the world. Congress, assuming that slavery is illegal, are
constitutionally hound to provide all necessary means for having that principle
maintained in practice.
t Part thirst, ch. 3, p. 101, 2c? ed.

276 THE UNCONSTITUTIONALITY OF SLAVERY.
bound by the constitution to aid, if need be, a foreigner, an alien,
an enemy even, who may be restrained as property. And if the
people of any of the civilized nations were now to be seized as
slaves, on their arrival in this country, we can all imagine wbat
an abundance of constitutional power would be found, and put
forth, too, for their liberation.
Without this power, the nation could not sustain its position as
one of the family of civilized nations ; it could not fulfil the law
of nations, and would therefore be liable to be outlawed in conse
quence of the conduct ofthe States. For example. If tbe States
can make slaves of anybody, they can certainly make slaves of
foreigners. And if they can make slaves of foreigners, they can
violate the law of nations*; because to make slaves of foreigners,
is to violate the law of nations. Now the general government is
the only government known to other nations ; and if the States
can make slaves of foreigners, and there were no power in the
general government to liberate them, any one of the States could
involve the whole nation in the responsibility of having violated
the law of nations, and the nation would have no means of reliev
ing itself from tbat responsibility by liberating the persons en
slaved ; but would have to meet, and conquer or die in, a war
brought upon it by the criminality of the State.
This illustration is sufHcient to prove that the power of the gen
eral government to liberate men from slavery, by the use of the
writ of habeas corpus, is of the amplest character ; that it is not
confined to the cases of those who are a part of " the people of the
United States," and so parties to the constitution ; that il is limited
only by the territory of the country ; and that it exists utterly
irrespective of " anything in the constitution or laws of any
State." This power, which is bound to be exerted for the liberation of
foreigners, is bound to be exerted also for the liberation of persons
born on the soil, even though it could be proved, (which it cannot,)
that they are not legally parties to the constitution. The simple
fact of their not being parties to the constitution, (if that fact were
proved,) would no more alter the power or duty of Congress in
relation to securing them the privilege of the writ ofhabeai corpus,
than the same fact does in the case of foreigners, who confessedly
are not parties to the constitution ; unless, indeed, their coming
into the country under the guaranty afforded by the habeas corpus
clause of the constitution makes them, so far, parties to it. Bu

POWER OF THE GENERAL GOVERNMENT OVER SLAVEEY. 277
this clause could operate as no guaranty of liberty to foreigners,
unless it guarantied liberty lo all born on the soil ; for, there being
no distinction of persons made, it certainly could not be claimed
that it guarantied greater privileges to foreigners than to the least
favored of those born on the soil. So that it will still result that,
unless the constitution, (as it may be executed by the general gov
ernment alone,) guaranties personal liberty to all born in the coun
try, it does not guaranty it to foreigners coming into the country ;
and if it do not guaranty it to foreigners coming into the country,
any single State, by enslaving foreigners, can involve the whole
nation in a death struggle in support of such slavery.
If these opinions are correct, it is the constitutional duty of
Congress to establish courts, if need be, in every county and town
ship even, where there are slaves to be liberated ; to provide attor
neys to bring the cases before the courts ; and to keep a standing
military force, if need be, to sustain the proceedings.
In addition to the use of the habeas corpus, Congress have power
to prohibit the slave trade between the States, which, of itself,
would do much towards abolishing slavery in the northern slave-
holding States. They have power also to organize, arm, and dis
cipline the slaves as militia, thus enabling them to aid in obtaining
and securing their own liberty.
24

APPENDIX A,

FTTGITIVE SLAVES.
\Tee foUowing article was first published ixx 1850, as an appendi.x to an argument, entitle*
*" A Defence for Fogitive Slaves, against 'the Acts of Congress of February, 12, 1793
JKd September 18,1850. By Ltsauder Spooner." It repeats some ideas already advancei)
"*.a the preceding po.ges5 but, as it is mostly new, it has been ihought wortky of preservatio,
¦sty being included in this volume.]
.iNBITHER THE CONSTITUTION, NOB. EITHER OF THS ACTS OF CON&RESS OF
1793 OR 1699, KKQUHHES THE SURRENDER OF FUGITIVE SLAVES.
In the preceding chapters it lias been admitted, for the sake of -the argument,
that the constitution, and acts of Congress ctf 1793 and 1850, require the delivery
of Fugitive Staves- But such really is not the fact. Neither the -con^itutionai
provision, nor either of said acts of Congress, uses the word slave, nor slavery, nor
any language that can legally be made to apply to slaves. The only " person "
required by the constitution to be delivered up is described in the constitution as
•a" person Rrfd lo service or lahor in one state, under the laws thereof." This
language is no legal description of a slave, and can be made to apply to a slave
only hy -a violaSiion of all the most imperative rules of interpretation by whieh the
meaning of all legal instruments is to be ascertained.
The word " held'" is a material word, in this description. Its legal meaning in
synonymous with that of the words " bound," and " obliged." It is used in bonds,
as synonymous with those "words, and in no other sense. It is also used in laws, and
ether legal instruments. And its legal ¦meaning is to d^fcribe persons hdd by som'Z
legal contract, obligation, d-aty, ur a-utlunity, which the law will enforce. Thus, in a
4)ond, a man acknowledges himself " hdd, and firmly bound and obliged " to d»
certain things mentioned in the bond, — and the law will compel a fulfilment of
the obligation. The laws " hold " men to do various things ; and by holding them
to do those things is meant that the laws will compel them to do them, Whepevex
a person is described in the laws as being " hdd " to do anything, — as to render
-" service or labor," for example, — the legal meaning invariably is that he as held
<by some iegal contiaot, obligation, duty, or authority, which tho laws will enforce,
— (either .specifically, or by compeUing pa,yment of damages for non-performance.)
I presume no single instance «an be found, ia any of the laws of this country, .since
ats first settlement, in which the word "held " is used in any other thau this legal
sense, when used to deseribe a person who is ¦" held " to do anything " under the
laws." And such is its meaning, and its only meaning, in this clause of the con
stitution. If there could be a doubt on this point, that doubt would be removed by
the additional words, " under the laws," and the word " due," as applied to the
¦"service or labor," to which the person is "held."
Saw, a slave is not "held " by any legal contract, obligation, duty, or authority,
which the laws will eBforoe. He is " held " only by brute force. Dne persou

280 APPENDIX A.
beats another until the latter will obey bim, work for liim if he require it, or da
nothing if he require it. This is slavery, and the whole of it. This is the only
manner in which a slave is " held to service or labor.**
The laws recognize no obligation on the part of the slave to labor for or serve his
master If he refuse to labor, the law will not interfere to compel him. The
master must do his own flogging, as in the case of an ox or a horse. OKie laws take
no more cognizance of the fact whether a slave labors or not, than they do of the
fact whether an os or a horse labors
A slave, then, is no more "¦ held " to labor, in any hg&i sense, than a man would
be in Massachusetts,, whom another person should seize and beat until he reduced
him to subjection and obedienoe- If such a man should escape from his opfH-essor,
and take refuge in Carolina, he could not be claimed under this dause of the con
stitution, because he would not be '' held **¦ in any legal sense, (that is, by any legat
contract, obUgation, duty, or authority,) but only by brute force* And the same
is the case in regard to slaves.*
It is an established ruk of legal interpretation, that a word usedi in laws, to
describe legal rights, must be taken in a hgal sense. This rule is as imperative in
the interpretation of the constitution as of any other legal instrument. To prove
this, let us take another example. The constitution (Art. I. Sec. 6) provides that
" for any speech or debate in either house, they (the senators and representatives))
shall not be questioned in any other place." Now, this provision imposes no restric
tion whatever upon the senators and re^esentatives being ^'' questioned for any
speech of debate,'^ by anybody and everybody, who may please to question them»
or in any and every place, with this single exception, that they mast mtt " be
questioned " legally, — that is, they must not be held to any Ugal accountability.
It would be no more absurd to construe this provision about qttentioniTirg senators
and representatives, so as to make it forbid the people, ia their private capacity,
to ask any questions of their senators and representatives, on their return fronL
Congress, as to their doings there, instead of making it apply to a legal responsi
bility, than it is. to construe the words " held to service or labor " as applied to a
* In a speech, in the Senate of the Umted States, upon the Fugitive Slave bill,, so catted, ott
the 19th day of August, 1850, (as reported kt the ISfasbiogrtoa Union and Nattonal Intelli
gencer,) senatoi- JVIason, of Virginia,, the chairman of tbe committee tliat wyoitteti ibe bill, and
the principaJ champion of ttue bill in the Senate, in describing '¦Hhe aqtual evils under whichi
Uie slave States huljor in refesiiince- to the reclamation of these fugitives," said :
" Then, again,, it is proposed Eby one of the opponents of the bill}, as a past of the proof to
be adduced at the hearing,, after the fugitive has been recaptured, that evidence shall be
bvought by tht; daimant to sho^v that slavery is established in the state hrom wbich tbe fugi
tive has absconded. Now, this very t>ung, in a recent case iu the city of New Vock, was
required by one of the judges of that state, which case attracted khe attention of the author
ities of Maryland, and against whicii they protested, became of the indignities heaped upoit
their citizens, and the losses which they sustained in that city. In that case, the judge of the
state court required prorf tliat slavery was established iq Maryland, and" went so fii»as to say-
ihat the only mode of pi'oving iit was by ueference to the statute-book. Such, piioof is requircdl
in the senator's amendment j and, if he means by this that pa-oof shall be brought that slavery
is established by existing laws, it is impossibie to cttrnply with the requisition^foir m® such
proof can be produced, I apprehend, in any ef^ the siave states, I am not awetre that
Ihere ia a single state in loh/icf^ tke institution ia estahHshed' fMf po^sitive law. On a for
mer occasion, and on a diflferent ttH?ic, it was my duty to endeavor to show to the senate thai
no such law was necessajry for its establishment j certainty none could be found, cmd none
was requiredy in amif of the states ofthe Union.^*
I am confident that Mr Calhoun made the same admission within two oe three yeara laafc
past, hut I have not the paper containing tt at hand.

APPENDIX A. 281
person held simply by brute force, (as in the case supposed in Massachusetts,)
-inatead of persona held by some legal contract, obligation, or duty, which the law
will enforce.
As the slave, then, is " held to service or labor " by no contract, obligation, or
duty, whioh the law will enforce, but only by the brute force of the master, the
provision of the constitution in regard to " persons held to service or labor " can
have no more legal application to him than to the person supposed in Massachu
setts, who should at one time be beaten into obedienoe, and afterwards escape into
Carolina. The word " hdd " being, in law, synonymous with the word " bound," the descrip
tion, " person hdd to service or labor," is synonymous with the description in
another section, (Art. 1, Sec. 2,) to wit, "tbose bound to service for a, term of
years." The addition, in the one .case, of the words "for a term of years," does
not alter the meaning ; for it does not appear that, in the other case, they are
" held " beyond a fixed term.
In fact, everybody, courts and people, admit that " persons bound to service for
a term of years," as apprentices, and other indented servants, are to be delivered
up under the provision relative to " persons held to service or labor." The word
" hdd," then, is regarded as synonymous with " bound," whenever it is wished to
deliver up " persons bound to service." If, then, it be synonymous with the word
"bound," it applies only to persons who are "bound" in a legal sense, — that is,
by some legal contract, obligation, or duty, which the law will enforce. The words
cannot be stretched beyond their necessary and proper legal meaning ; because all
legal provisions in derogation of liberty must be construed strictly. The same
words that are used to describe a " person held to service or labor " by a legal con
tract, or obligation, certainly cannot be legally construed to include also one who
is " held " only by private violence, and brute force.
Mr. Webster, in his speech of March Tth, 1850, admits that the word " held " ia
synonymous with the word " bound," and that the language of the eonstitution
itself contains no requirement for the surrender of fugitive slaves. He says :
'* It may not be improper here to allude to that — I had almost said celebrated
— opinion of Mr. Madison. You observe, sir, that the term slavery is jiot used in the
constitution. The constitution does not require that fugitive slaves shall be deUvered up;
it requi.'es that persons bound to service in one state, and escaping into another, shall be
delivered up. Mr. Madison opposed the introduction of the term slave or slavery
into the constitution ; for he said he did not wish to see it recognized by the con
stitution of tbe United States of America that there could be property in men."
Had the constitution required only that " persons bound bo service or labor "
should be delivered up, it is evident that no one would claim that the provision
applied to slaves. Yet it is perfectly evident, also, that the word "held" ia
simply synonymous with the word "bound."
One can hardly fail to be astonished at the ignorance, fatuity, cowardice, or cor
ruption, that has ever induced the North to acknowledge, for an instant, any con
stitutional obligation to surrender fugitive slaves.
The Supreme Court of the United States, in the Prigg case, (the first case in
which this clause of the constitution ever came under the adjudication of that
court,) made no pretence that the language itself of the constitution afforded any
justification for a claim to a fugitive slave. On the contrary, they made the auda
cious and atrocious avowal, thai, ior the sole purpose of maMng the clause apply to
jlaves, they would disregard — aa they acknowledged themselves obliged to disre-
24*

282 APPENDIX A
gard — all the primary, established and imperative rulesof legal interpretation,
and be governed solely by the history of men's intentions^ outside of the constitution.
Thus they say :
" Before, however, we proceed to the points more immediately before us, it may
be well — in order to char the case of difficulty — to say that, in the exposition of
this part of the constitution, we shall limit ourselves to those considerations whioh
appropriately and exclusively belong to it, without laying down any rules of inter
pretation of a more general nature. It will, indeed, probably, be found, when we
look to the character of the constitution itself, the objects which it seeks to attain,
the powers which it confers, the duties which it enjoins, and the rights which it
secures, as well as the known historical fact that many of its provisions were mat
ters of corapromise of opposing interests and opinions, that no uniform rule of inter
pretation can be applied to it, which may not allow, even if it does not positively demand,
7nany modijic ations in its actual application to particular clauses. And perhaps the
safest rule of interpretation, after all, will be found to be to look to the nature and
objects of the particular powers, duties, and rights, with all the lights and aids of
contemporary history; and to give to the words of each just such operation and force,
consistent with their legitimate meaning, as may fairly secure and attain the ends
proposed. * * * Historically, it is well known that the object of this clause
was to secure to the citizens of the slaveholding states the complete right and title
of ownership in their slaves, as property, in every state in the Union into which
they might escape from the state where they were held in servitude." — 16
Peters, 610—11.
Thus it will be seen that, on the strength of history alone, they assume that
'-¦ »iuny of the provisions of the constitution were m.atters of compromise '* (that is, in
'regard to slavery) ; but they admit that the words of those provisions cannot be
siade to express any sueh compromise, if they are interpreted according to any
'•^ uniform rule of interpretation," or ** any rules of interpretation of a more general
nature " than the mere history of those particular clauses. Hence, " in order to
Mir the case of (that) difficulty," they conclude that "perhaps the safest rule ofinter-
¦liretation, after all, will be found to be to look to the nature and objects ofthe particular
iowers, duties, and rights, with all the lights and aids of contemporary history; and to
give to the words of each just such operation and force, consistent with their legitimate
meaning, as may fairly secure and attain the ends proposed."
The words " consistent vnth their legitimate meaning " contain a deliberate false
hood, thrown in by the court from no other motive than the hope to hide, in some
measure, the fraud they were perpetrating. If it had been " consistent with the
legitimate meaning ofthe words " of the clause to apply them to slaves, there would
have been no necessity for discarding, as they did, all the authoritative and infiex
ible rules of legal interpretation, and resorting to liistory to find their meaning.
They discarded those rules, and resorted to history, to make the clause apply to
slaves, for no other reason whatever than that such meaning was not " consistent
with the legitimate meaning of the words." It is perfectly apparent that the
moraent their eyes fell upon the " words " of the clause, they all saw that they
contained no legal description of slaves.
Stripped, then, of the ooveriag whioh that falsehood was intended to throw over
their conduct, the plain English of the language of the court is this : that history
tells us that certain clauses of the constitution were intended to recognize and
support slavery ; but, inasmuch as such is not the legal meaning of the words of
those clauses, if interpreted by the established rules of interpretation, we will. •' in
order to clear the case of (that) difficulty," just discard those rules, and pervert the
words so as to make them accomplish whatever ends history tells us were intended
to be accomplished by them.

APPENDIX A. 283
It was only by such a naked and daring fraud as this that the court could make
the constitution authorize the recovery of fugitive slaves.
And what were the rules of interpretation which they thus discarded, " iu ordei
to clear the case of difBculty," and make the constitution subserve the purposes of
slavery "! One of them is this, laid down by the Supreme Court of the United
States ;
" The intention of the instrument must prevail ; this intention must be collected
from ils words." — 12 Wheaton, 332.
Without an adherence to this rule, it is plain we could never know what was,
and wbat was not,' the constitution.
Another rule is that universal one, acknowledged by all courts to be imperative,
that language must be construed strictly in favor of liberty and justice.
The Supreme Court of the United States have laid down this rule in these strong
terras :
" \Vhere rights are infringed, where fundamental principles are overthrown,
where the general system of the laws is departed from, the legislative intention
must be expressed with irresistible clearness, to induce a court of justice to suppos©
a design to effect such objects." — United States vs. Fisher, 2 Cranch, 390.
Story delivered this opinion of the court, (in the Prigg case,) discarding all other
rules of interpretation, and resorting to history to make the clause apply to slaves.
And yet no judge has ever scouted more contemptuously than Story the idea of
going out of the words of a law, or the constitution, and being governed by what
history may say were the intentions of the authors. He says :
" Such a doctrine would be novel and absurd. It would confuse and destroy all
the tests of constitutional rights and authorities. Congress could never pass any
law without an inquisition into the motives of every member ; and even then they
might be reexaminable. Besides, what possible means can there be of making
sueh investigations 1 The motives of many of the members may be, nay, must be,
utterly unknown, and incapable of ascertainment by any judicial or other inquiry;
they may be mixed up in various manners and degrees ; they may be opposite to,
or wholly independent of, each other. The constitution would tbus depend upon
processes utterly vague and incomprehensible ; and the written intent of the legis
lature upon its words and acts, the lex scripta, would be contradicted or obliterated
by conjecture, and parole declarations, and fleeting reveries, and heated imagin
ations. No government on earth could rest for a moment on such a foundation.
It would be a constitution of sand, heaped up and dissolved by the flux and reflux
of every tide of opinion. Every act of the legislature [and, for the same reason
alsp, every clause of the constitution] must, therefore, be judged of from its objects
and inient, as they are embodied in its provisions." — 2 Story's Comm., 534.
Also, he says .
" The constitution was adopted by the people of the United States ; and it was
submitted to the whole, upon a just survey of its provisions, as they stood in the
text itself. * * Opposite interpretations, and different explanations of different
provisions, may well be presumed to have been presented in different bodies, to
remove local objections, or to win local favor. And there can be no certainty
either that the different state conventions, in ratifying the constitution, gave the
same uniform interpretation to its language, or that, even in a single state conven
tion, the same reasoning prevailed with a majority, much less with the whole, of
the supporters of it. * * It is not to be presumed that even in the convention
whioh framed the constitution, from the causes above mentioned, and other causes,
the clauses were always understood in the same sense, or had precisely the same
extent of operation. Every member necessarily judged for himself ; and the
;..J  L „r  ,.,.,,^rl r... nnrrhf fn Ko nnnclllSIVfi UnOU that of OthCrS. * * ?

284 APPENDIX A.
gathered by conjectures from scattered documents, from private papers, from the
table-talk of some statesmen, or the jealous 'exaggerations of others 1 Is the con
stitution of the United States to. be the only instrument which is not to be inter
preted by what ie written, but by probable guesses, aside from the text 1 What
would be said of interpreting a statute of a state legislature by endeavoring to find
out, from private sources, the objects and opinions of every member ; how every
one thought ; what he wished ; how he interpreted it "? Suppose difierent persons
had different opinions, — what is to be done"? Suppose different persons are
not agreed as to the ' probable meaning ' of the framers, or of the people, — what
interpretation is to be followed 1 These, and many questions of tbe same sort,
might be asked. It is obvious that there can be no security to the people in any con-
citation of govemment, if they are not to judge of it by the fair meaning of the words
of the text, hut the words are to be bent and broken by the * probable meaning ' of persons
whom they never knew, and whose opinions, and means ofinformation, may be no better
than their own ? The people adopted the constitution according to the words of the text
in their reasonable interpretation, and not according to the private interpretation qf any
particular men." — 1 iStory^s Comm, on Const., 287 to 392.
And Story has said much more of the same sort, as to the absurdity of relying
u^on " history " for the meaning of the eonstitution.
It is manifest that, if the meaning of the constitution is to be warped in the least,
it may be warped to any extent, on the authority of history ; and thus it would
follow that the eonstitution would, in reality, be made by the historians, and not by
the people. It would be impossible for the people to make a constitution which
the historians might not change at pleasure, by simply asserting that the people
intended thus or so.
But, in truth, Story and the court, in saying that history tells us that the clause
of the constitution in question was intended to apply to fugitive slaves, are nearly
as false to the history of the clause as they are to its law.
There is not, I presume, a word on record (for I have no recollection of having
ever seen or heard of one) that was uttered, either in the national convention that
framed the eonstitution, or in any northem state convention that ratified it, that
shows that, at the time the constitution was adopts, any northern man had the least
suspicion that the clause of the constitution in regard to " persons held to servioe
or labor " was ever to be applied to slaves.
In the national convention, " Mr. Butler and Mr. Pinckney moved to require
' fugitive slaves and servants to be delivered up like criminals.' " " Mr. Sherman
eaw no more propriety in the public seizing and surrendering 9. slave or servant than
a horse." — Madison papers, 1447 — 8.
In consequence of this objection, the provision was changed, and its language,
as it now stands, shows that the claim to the surrender of slaves was abandoned,
and only the one for servants retained.*
It does, not appear that a word was ever uttered, in the National Convention, to
show that any member of it imagined that the provision, as finally agreed upon,
would apply to slaves.
But, after the national convention had adjourned, Mr. Madison and Mr. Randolph
went home to Virginia, and Mr. Pinckney to South Carolina, and, in the state con
ventions of those states, set up the pretence that the clause was intended to apply
to slaves. I think there is no evidence that any other southern member of the
pational convention followed their example. In North Carolina, Mr. Iredell (not
* Servants were, at that thne, a very numerous class in all the states j and there were many
iaws respecting them, all treating them as a distinct class txom slaves.

APPENDIX A. 285
a member of the national convention) said the provision was intended to refer to
slaves ; but that " the northern delegates, owing to their particular scruples on the
subject of slavery, did not choose the word slave to be mentioned."
I think the declarations of tbese four men — Madison, Kandolph, Pinckney, and
Iredell — are all the " history " we have, that even southem men, at that time,
understood the clause as applying to slaves.
In the northern conventions no word was ever uttered, so far as we have any'
evidence, that any man dreamed that this language would ever be, understood as
authorizing a claim for fugitive slaves. It is incredible that it could have passed
the northern conventions without objection, (indeed, it could not have passed them
at all,) if it bad been understood as requiring tbem to surrender fugitive slaves ;
for, in several of them, it was witb great difiiculty that the adoption of the consti
tution was secured when no such objection was started.
The construction placed upon the provision at the present day is one of the
many frauds which the slaveholders, aided by their corrupt northern accomplices,
have succeeded in palming off upon the north. In fact, the south, in the conven
tion, as it has ever done since, acted upon the principle of getting by fraud what
it could not openly obtain. It was upon this principle that Mr. Madison acted
when he said tbat they ougbt not to admit, in the constitution, the idea that there
could be property in man. He would not admit tbat idea in the constitution itsdfi
but he immediately went home, and virtually told the state convention that that
was the meaning whioh he intended to have given to it in practice. He knew well
that if that idea were admitted in the instrument itself, the north would never
adopt it. He therefore conceived and adhered to the plan of having the instru
ment an honest and free one in its terms, to secure its adoption by the north, and
of then trusting to the fraudulent interpretations that could be accomplished after
ward, to make it serve the purposes of slavery.
Further proof of his fraudulent purpose, in this particular, is found in the fact
that he wrote the forty-second number of the Federalist, in which he treats of " the
powers whioh provide for the harmony and proper intercourse among the states."
But he makes no mention of tbe surrender of fugitives from " service or labor," as
one of tbe means of promoting that " harmony and proper intercourse." He did
not then dare say to the north that tbe south intended ever to apply that clause to
slaves. But it is said that the passage of the act of 1793 shows that the north under
stood the constitution as requiring the surrender of fugitive slaves. That act is
supposed to have passed without opposition from the north ; and the reason was
that it contained no authority for, or allusion to, the surrender of fugitive slaves ;
but only to fugitives from justice, and "persons held to service or labor." .The
south had not at that time become sufficiently audacious to make such a demand.
And it was twenty-three years, so far as I have discovered, (and I have made
reasonable search in the matter,) after the passage of that act, before a slave was
given up, under it, in Any free state, or the act was acknowledged, by the Supreme
Court of any /rse state, to apply to slaves.
In 1795, two years after the passage of the act of Congress, and after the con
stitution had been in force six years, a man was tried in the Supreme Court of
Pennsylvania, on an indictment, under a statute of the state, against seducing or
oarrjdng negroes or mulattoes out of the state, with the intention to seU them, or
keep them, as slaves.

286 APPENDIX A.
*' Upon the evidence in support of the prosecution, it appeared that negro Toby
had been brought upon a temporary visit to Philadelphia., as a servant in the family
of General Sevier, of the State of Virginia ; that, when General Sevier proposed
returning to Virginia, the negro refused to axjcompany him ; " but was afterwarda
forcibly carried out of the state. It appeared also, in evidence, that it was proposed
by Richards, the defendant, that the negro be enticed into New Jersey, (a slave
state,) and there seized and carried back to Virginia.
" The evidence on behalf of the defendant proved that Toby was a slave,
belonging to the father of General Sevier, who had Jent him to his son merely for
the journey to Philadelphia."
The defendant was fouud not guilty, agreeably to the charge of the Chiefjustice;
and what is raaterial is, that the case was tried wholly under the laws of Pennsyl
vania, which permitted any traveller who came into Pennsylvania, upon a tempo
rary excursion for business or amusement, to detain his slave for six months, and
entitled him to the aid of the civil police to secure and carry him away. — Respub-
lica vs. Richards, 2 Dallas, 224.
Not one word was said, by either court or counsel, of the provision of the United
States constitution in regard to "persons held to service or labor," or the act of
1793, as having any application to slaves, or as giving any authority for the recov
ery of fugitive slaves. Neither the constitution nor the act of Congress was
mentioned in connection with the subject.
Is it not incredible that this should have been the case, if it had been under
stood, at that day, that either the eonstitution or the act of 1793 applied to slaves 1
Would a man have used force in the case, and thus subjected himself to the risk
of an indictment under the state laws 1 or would there have been any proposition
to entice the slave into a slave state, for the purpose of seizing him, if it had beeu
understood that the laws of the United States were open to him, and that every
justice of the peace (as provided by the act of 1793) was authorized to deliver up
tiie slave 1
It cannot reasonably be argued that it was necessary to use force or fraud to take
the slave back, for the reason that he had been brought, instead of having escaped,
into Pennsylvania ; for that distinction seems not to have been thought of until
years after. The first mention I have found of it was in 1806. — Butler vs.
Hopper, 1 Washington, C. C. i?. 499.
In 1812 it was first acknowledged by the Supreme Court of New York that the
act of 1793 applied to slaves, although no slave was given up at the time. But
New York then had slaves of her own. — Glen vs. Hodges, 9 Johnson, 67.
In 1817 the Supreme Court of Pennsylvania first acknowledged that the consti
tution and the act cf 1793 applied to slaves. But no slave was then given up. —
Commonwealth vs. Holloway ^ 2 Sargent and Rawle, 305,
In 1823 the Supreme Court of MasSEichusetts first acknowledged that the consti
tutional provision in regard to " persons held to service or labor " applied to slaves.
— Commonwealth vs. Griffith, 2 Pickering, 11.
Few, if any, slaves have ever been given up under the act of 1793, in the free
states, until within the last twenty or thirty years. And the fact furnishes ground
for a strong presumption that, during the first thirty years after the constitution
went into operation, it was not generally understood, in the free states, that the
constitution required tho surrender of fugitive slaves.
But, it is said that the ordinance of 1787, passed contemporaneously with the

APPENDIX A. 287
formation of the constitution, requires the delivery of fugitive slaves, and that the
constitution ought to be taken in the same sense. The answer to this allegation
is. that the ordinance does not require the delivery of fugitive slaves, but only of
persons " from whom service or labor is lawfully claimed." This language,
certainly, is no legal description of a slave.
But beyond, and additional to, all this evidence, that the constitution does not
require the surrender of fugitive slaves, is the conclusive and insuperable fact, that
there is not now, nor ever has been, any legal or constitutional slavery ih thia
country, from its first settlement. All the slavery that has ever existed, in any
of tho colonies or states, has existed by mere toleration, in defiance of the funda
mental constitutional law.
Even the statutes on the subject have either wholly failed to declare who might
and who might not be made slaves, or have designated them in so loose and imper
fect a manner, that it would probably be utterly impossible, at this day, to prove,
under those statutes, the slavery of a single person now living. Mr. Mason admits
as much, in the extracts already given from bis speech.
But all the statutes on that subject, whatever the terms, have been unconstitu
tional, whether passed under the colonial charters, or since under the state gov
ernments. They were unconstitutional under the colonial charters, because thoso
charters required the legislation of the colonies to " be conformable, as nearly as
circumstances would allow, to the laws, customs and rights, of the realm of Eng
land." Those charters were the fundamental constitutions of the colonies, and,
of course, made slavery iUegal in the colonies, — inasmuch as slavery was incon
sistent with the "laws, customs, and rights, of the realm of England.*
There was, therefore, no legal slavery in this country so long as we were colonies,
— that is, up to the time of the Revolution .
After the Declaration of Independence, new constitutions were established in
eleven of the states. Two went on under their old charters- Of all the new con
stitutions that were in force at the adoption of the constitution of the United States
in 1789, not one authorized, recognized or sanctioned, slavery. f All the recog-
* Washbm'n, in his " Judicial History of Massachusetts," (p. 202,) says :
" As early as 1770, and two years previous to the decision of Somersett's case, so famous in
England, the right of a mjister to hold a slave had been denied, by the Superior Court of Mas
sachusetts, and upon the same grounds, substantially, as those ujion which Lord Mansfield
discharged Somersett, when his case came before him. The case here alluded to was James
vs. Lechmere, brought by the plaintiff, a negro, against his master, to recover his freedom."
t Perhaps it may be claimed by some that the constitution of South Carolina was an excep
tion to this rule. By that constitution it was provided that the qualifications of members of
the Senate and House of Representatives " shall be the same as mentioned in the election
act.^^ " The election act " was an act of the Provincial Assembly, passed in 1759, which provided
that members of the Assembly " shall have in thia province a settled plantation, or freehold
estate, of at least flve hundred acres of land, and twenty slaves."
But this act was necessarily void, so far as the requirement in regard to slaves was con
cerned ; because, slavery being repugnant to the laws of England, it could have no legal
existence in the colony, which was restricted from making any laws, except such as were
conformable, as nearly ife ch-cumstances would allow, to the laws, statutes, and rights, of the
realm of England.
This part of the act, then, being void at the time it was passed, and up to the time of the
adoption of the constitution of the state, the provision in that constitution could uot legally be
held to give force to tkis part of tke act. Besides, there could be no slaves, legally speaking
b 1778, for the act to refer to.

288 APPENDIX A.
nitions of slavery that are now to be found in any of tke state constitutions, have been
inserted since the adoption of the constitution of the T/nited States.
There was, therefore, no legal or constitutional slavery, in any of the states, up
to the time of the formation and adoption of the constitution of the United States,
in 1787 and 1789.
There being no legal slavery in the country at the adoption of the constitution
of the United States, all " the people of the United Siates " became legally parties
to that instrument, and, of course, memhers of the United States government, by
its adoption. The constitution itself declares, that " We, the people of the United
States, * * do ordain and establish this constitution." The term " people,"
of necessity, includes the whole people ; no exception being made, none can be
presumed ; for such a presumption would be a presumption against liberty.
After *' the people " of the whole country had become parties to the constitution
of the United States, their rights, as members of the United States government,
were secured by it, and they could not afterwards be enslaved by the state gov
ernments ; for the constitution of the United States is " the supreme law," (oper
ating '* directly on the people, and for their benefit," says the Supreme Court, 4
Wheaton, 404 — 5,) and necessarily secures to all the people individually all the
rights it intended to secure to any ; and these rights are such as are incompatible
with their being enslaved by subordinate governments.
But it will be said that the constitution of the United States itself recognizes
slavery, to wit, in the provision requiring " the whole number of free persons," and
"three-fifths of all other persons," to be counted, in making up the basis of repre
sentation and taxation. But this interpretation of the word " free " is only another
of the fraudulent interpretations which the slaveholders and their northern accom
plices have succeeded in placing upon the constitution.
The legal and technical meaning of the word ** free," as used in England for
centuries, has been to designate a native or naturalized member of the state, as
distinguished from an alien, or foreigner not naturalized. Thus the term "free
British subject" means, not a person who is not a slave, but a native born or
naturalized subject, who is a member of the state, and entitled to all the rights of
a member of the state, in contradistinction to aliens, and persons not thus entitled.
The word " free " was used inthis sense in nearly or quite all the colonial
charters, the fundamental constitutions of this country, up to the time of the
revolution. In 1787 and 1789, when the United States constitution was adopted, the
word "free " was used in this political sense in the constitutions ofthe three slaveholding
states, Georgia, South Carolina, and North Carolina. It was also used in this se7tse
in the articles of Confederation.
The word "free" was also used in this political sense in the ordinance of 1787,
in four difierent instances, to wit, three times in the provision fixing the basis of
representation, and once in the article of compact, whioh provides that when the
states to be formed out of the territory should have sixty thousand yree inhabitants
they should be entitled to admission into the confederacy.
That the word " free " was here used in its political sense, gold not as the correl
ative of slaves, is proved by the fact that the ordinance itself prohibited slavery in
the territory. It would have been absurd to use the word "free " as the correl
ative of slaves, when slaves were to have no existence under the ordinance.
This political meaning which the word " free " had borne in the English law,
Wid in all the constitutional llaw of this country, up to the adoption of the consti-

APPENDIX A. 289
tnUon of the United States, was the meaning which aU legal roles of interpietation
mtnired that Congress and the ooorts should give to the word in that instrament.
But we are told again that the constitution recognizes the legality of the slare-
trade-, and, by consequence, the legality of slavery, in the clause respeoting the
"importation of persons." But the word "importation," when applied to "per
sons," no more implies that the persons are slaves than does the word " transport
ation." It was perfectly understood, iu the convention that framed the consti
tution, — and the language was chosen with special care to that end, — that there
was nothing in the language itself that legally recognized the slavery of the
persons to be imported ; although some of the members, (how many we do not
know,) while ohoosing language with an avowed caution against " admitting, in
the constitution, the idea that there could be property in man," intended, if they
could induce the people to adopt the constitution, and could then get the control of
the government, to pervert this language into a license to the slave-trade.
This fraudulent perversion of the legal meaning of the language of the consti
tution is all the license the constitution ever gave to the slave-trade.
Chiefjustice Marshall, in the case of the brig Wilson, (1 Brockenbrough, 433 — 5,)
held that the words " import " and " imported," in an act of Congress, applied ta
&ee persons as well as to slaves. If, then, the word " importation," iu the consti
tation, applies properly to free persons, it certainly cannot imply that any of the
persous imported are slaves.
If the constitution, truly interpreted, contain no sanoUon of slavery, the slaves
of tUs country are as much entitled to the writ of habeas corpus, at the haaii cf the
United States goremment, as are the whites.
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