THE STATE CONSTITUTIONS OF 1789.
Of all the state constitutions, that were in force at the adoption of
the constitution of the United States, in 1789, _not one of them
established, or recognized slavery_.
All those parts of the state constitutions, (i.e. of the old thirteen
states,) that recognize and attempt to sanction slavery, _have been
inserted, by amendments, since the adoption of the constitution of the
United States_.
All the states, except Rhode-Island and Connecticut, formed
constitutions prior to 1789. Those two states went on, beyond this
period, under their old charters.[14]
The eleven constitutions formed, were all democratic in their general
character. The most of them eminently so. They generally recognized, in
some form or other, the natural rights of men, as one of the fundamental
principles of the government. Several of them asserted these rights in
the most emphatic and authoritative manner. Most or all of them had also
specific provisions incompatible with slavery. Not one of them had any
specific recognition of the existence of slavery. Not one of them
granted any specific authority for its continuance.
The only provisions or words in any of them, that could be claimed by
any body as recognitions of slavery, are the following, viz.
1. The use of the words "our negroes" in the preamble to the
constitution of Virginia.
2. The mention of "slaves" in the preamble to the constitution of
Pennsylvania.
3. The provisions, in some of the constitutions, for continuing in force
the laws that had previously been "in force" in the colonies, except
when altered by, or incompatible with the new constitution.
4. The use, in several of the constitutions, of the words "free" and
"freemen."
As each of these terms and clauses may be claimed by some persons as
recognitions of slavery, they are worthy of particular notice.
1. The preamble to the frame of government of the constitution of
Virginia speaks of negroes in this connexion, to wit: It charges George
the Third, among other things, with "prompting _our negroes_ to rise in
arms among us, those very negroes, whom, by an inhuman use of his
negative, he hath refused us permission to exclude by law."
Here is no assertion that these "negroes" were slaves; but only that
they were a class of people whom the Virginians did not wish to have in
the state, _in any capacity_--whom they wished "to exclude by law." The
language, considered as legal language, no more implies that they were
slaves, than the charge of having prompted "our women, children,
farmers, mechanics, or our people with red hair, or our people with blue
eyes, or our Dutchmen, or our Irishmen to rise in arms among us," would
have implied that those portions of the people of Virginia were slaves.
And especially when it is considered that slavery had had no prior
_legal_ existence, this reference to "negroes" authorizes no legal
inference whatever in regard to slavery.
The rest of the Virginia constitution is eminently democratic. The bill
of rights declares "that all men are by nature equally free and
independent, and have certain inherent rights,"* * * * "namely, the
enjoyment of life and liberty, with the means of acquiring and
possessing property, and pursuing and obtaining happiness and safety."
2. The preamble to the Pennsylvania constitution used the word "slaves"
in this connexion. It recited that the king of Great Britain had
employed against the inhabitants of that commonwealth, "foreign
mercenaries, savages and slaves."
This is no acknowledgment that they themselves had any slaves of their
own; much less that they were going to continue their slavery; for the
constitution contained provisions plainly incompatible with that. Such,
for instance, is the following: which constitutes the first article of
the "Declaration of Rights of the Inhabitants," (i.e. of _all_ the
inhabitants) "of the state of Pennsylvania."
1. "That all men are born equally free and independent, and have certain
natural, inherent and inalienable rights, among which are, the enjoying
and defending life and liberty, acquiring, possessing and protecting
property, and pursuing and obtaining happiness and safety."
The 46th section of the frame of government is in these words.
"The Declaration of Rights is hereby declared to be a part of the
constitution of this commonwealth, and ought never to be violated on any
pretence whatever."
Slavery was clearly impossible under these two constitutional
provisions, to say nothing of others.
2. Several of the constitutions provide that all the laws of the
colonies, previously "_in force_," should continue in force until
repealed, _unless repugnant to some of the principles of the
constitutions themselves_.
Maryland, New-York, New-Jersey, South Carolina, and perhaps one or two
others had provisions of this character. _North Carolina had none,
Georgia none, Virginia none_. The slave laws of these three latter
states, then, necessarily fell to the ground on this change of
government.
Maryland, New-York, New-Jersey and South-Carolina had acts upon their
statute books, _assuming_ the existence of slavery, and pretending to
legislate in regard to it; and it may perhaps be argued that those laws
were continued in force under the provision referred to. But those acts
do not come within the above description of "laws in force"--and for
this reason, viz. the acts were originally unconstitutional and void, as
being against the charters, under which they were passed; and therefore
never had been _legally_ "in force," however they might have been
actually carried into execution as a matter of might, or of pretended
law, by the white race.
This objection applies to the slave acts of all the colonies. None of
them could be continued under this provision.--None of them, legally
speaking, were "laws in force."
But in particular states there were still other reasons against the
colonial slave acts being valid under the new constitutions. For
instance, South Carolina had no statute (as has before been mentioned,)
that designated her slaves with such particularity as to distinguish
them from free persons; and for that reason none of her slave statutes
were _legally_ "in force."
New-Jersey also was in the same situation. She had slave statutes; but
none designating the slaves so as to distinguish them from the rest of
her population. She had also one or more specific provisions in her
constitution incompatible with slavery, to wit: "That the common law of
England* * * * _shall remain in force_, until altered by a future law
of the legislature; such parts only as are repugnant to the rights and
privileges contained in this charter." (Sec. 22.)
Maryland had also, in her new constitution, a specific provision
incompatible with the acts on her colonial statute book in regard to
slavery, to wit:
"Sec. 3. That the _inhabitants_"--mark the word, for it includes _all_
the inhabitants--"that the _inhabitants_ of Maryland are entitled to the
common law of England, and the trial by jury, according to the course of
that law," &c.
This guaranty, of "the common law of England" to _all_ "the inhabitants
of Maryland," without discrimination, is incompatible with any slave
acts that existed on the statute book; and the latter would therefore
have become void under the constitution, even if they had not been
previously void under the colonial charter.
4. Several of these state constitutions have used the words "free" and
"freemen."
For instance. That of South Carolina provided, (Sec. 13,) that the
electors of that state should be "_free_ white men." That of Georgia
(Art. 11,) and that of North Carolina (Art. 40,) use the term "free
citizen." That of Pennsylvania (Sec. 42,) has the term "free denizen."
These four instances are the only ones I have found in all the eleven
constitutions, where any class of persons are designated by the term
"free." And it will be seen hereafter, from the connexion and manner in
which the word is used, in these four cases, that it implies no
recognition of slavery.
Several of the constitutions, to wit, those of Georgia, South Carolina,
North Carolina, Maryland, Delaware, Pennsylvania, New-York--but not
Virginia, New-Jersey, Massachusetts or New-Hampshire--repeatedly use the
word "freeman" or "freemen," when describing the electors, or other
members of the state.
The only questions that can arise from the use of these words "free" and
"freeman," are these, viz: Are they used as the correlatives, or
opposites of slaves? Or are they used in that political sense, in which
they are used in the common law of England, and in which they had been
used in the colonial charters, viz., to describe those persons possessed
of the privilege of citizenship, or some corporate franchise, as
distinguished from aliens, and those not enjoying franchises, although
free from personal slavery?
If it be answered, that they are used in the sense first mentioned, to
wit, as the correlatives or opposites of slavery--then it would be
argued that they involved a recognition, at least, of the existence of
slavery.
But this argument--whatever it might be worth to support an implied
admission of the _actual_ existence of slavery--would be entirely
insufficient to support an implied admission either of its _legal_, or
its _continued_ existence. Slavery is so entirely contrary to natural
right; so entirely destitute of authority from natural law; so palpably
inconsistent with all the legitimate objects of government, that nothing
but express and explicit provision can be recognized, in law, as giving
it any sanction. No hints, insinuations, or unnecessary implications can
give any ground for so glaring a departure from, and violation of all
the other, the general, and the legitimate principles of the government.
If, then, it were admitted that the words "free" and "freemen" were used
as the correlatives of slaves, still, of themselves, the words would
give no direct or sufficient authority for laws establishing or
continuing slavery. To call one man free, gives no legal authority for
making another man a slave. And if, as in the case of these
constitutions, no express authority for slavery were given, slavery
would be as much unconstitutional as though these words had not been
used. The use of these words in that sense, in a constitution, under
which all persons are presumed to be free, would involve no absurdity,
although it might be gratuitous and unnecessary.
It is a rule of law, in the construction of all statutes, contracts and
legal instruments whatsoever--_that is, those which courts design, not
to invalidate, but to enforce_--that where words are susceptible of two
meanings, one consistent, and the other inconsistent, with liberty,
justice and right, that sense is always to be adopted, which is
consistent with right, unless there be something in other parts of the
instrument sufficient to prove that the other is the true meaning. In
the case of no one of all these early state constitutions, is there any
thing in the other parts of them, to show that these words "free" and
"freemen" are used as the correlatives of slavery. The rule of law,
therefore, is imperative that they must be regarded in the sense
consistent with liberty and right.
If this rule, that requires courts to give an innocent construction to
all words that are susceptible of it, were not imperative, courts might,
at their own pleasure, pervert the honest meaning of the most honest
statutes and contracts, into something dishonest, for there are almost
always words used in the most honest legislation, and in the most honest
contracts, that, by implication or otherwise, are capable of conveying
more than one meaning, and even a dishonest meaning. If courts _could_
lawfully depart from the rule, that requires them to attribute an honest
meaning to all language that is susceptible of such a meaning, it would
be nearly impossible to frame either a statute or a contract, which the
judiciary might not _lawfully_ pervert to some purpose of injustice.
There would obviously be no security for the honest administration of
any honest law or contract whatsoever.
This rule applies as well to constitutions as to contracts and statutes;
for constitutions are but contracts between the people, whereby they
grant authority to, and establish law for the government.
What other meaning, then, than as correlatives of slavery, are the words
"free" and "freemen" susceptible of, as they are used in the early state
constitutions?
Among the definitions given by Noah Webster are these:
"_Freeman._ One who enjoys, or is entitled to a franchise or peculiar
privilege; as the freemen of a city or state."
"_Free._ Invested with franchises; enjoying certain immunities; with
of--as a man _free_ of the city of London."
"Possessing without vassalage, or slavish conditions; as a man _free_ of
his farm--"
In England, and in the English law throughout, as it existed before and
since the emigration of our ancestors to this country, the words "free"
and "freemen" were political terms in the most common use; and employed
to designate persons enjoying some franchise or privilege, from the most
important one of general citizenship in the nation, to the most
insignificant one in any incorporated city, town or company. For
instance: A man was said to be a "free British subject"--meaning thereby
that he was a naturalized or native born citizen of the British
government, as distinguished from an alien, or person neither
naturalized nor native born.
Again. A man was said to be "free of a particular trade in the city of
London"--meaning thereby, that by the bye-laws of the city of London, he
was permitted to follow that trade--a privilege which others could not
have without having served an apprenticeship in the city, or having
purchased the privilege of the city government.
The terms "free" and "freemen" were used with reference to a great
variety of privileges, which, in England, were granted to one man, and
not to another. Thus members of incorporated companies were called
"_freemen_ of the company," or "_free_ members of the company;" and were
said to be "_free_ of the said company." The citizens of an incorporated
city were called "the freemen of the city," as "freemen of the city of
London."
In Jacob's Law Dictionary the following definitions, among others, are
given of the word "freemen."
"_Freeman--liber homo._"* * * * "In the distinction of a freeman from a
vassal under the feudal policy, _liber homo_ was commonly opposed to
_vassus_, or _vassalus_; the former denoting an _allodial_ proprietor;
the latter one who held of a superior."
"The title of a _freeman_ is also given to any one admitted to the
freedom of a corporate town, or of any other corporate body, consisting,
among other members, of those called _freemen_."
"There are three ways to be a _freeman_ of London; by servitude of an
apprenticeship; by birthright, as being the son of a _freeman_; and by
redemption, i.e. by purchase, under an order of the court of aldermen."
"The customs of the city of London shall be tried by the certificate of
the Mayor and Aldermen,* * * * as the custom of distributing the effects
of freemen deceased: of enrolling apprentices, or that he who is _free
of one trade_ may use another."
"Elections of aldermen and common-councilmen are to be by _freemen_
householders."
"An agreement on marriage, that the husband shall take up the freedom of
London, binds the distribution of the effects."
The foregoing and other illustrations of the use of the words "free" and
"freemen," may be found in Jacob's Law Dictionary, under the head of
Freeman, London, &c.
And this use of these words has been common in the English laws for
centuries. The term "freeman" is used in Magna Charta, (1215). The
English statutes abound with the terms, in reference to almost every
franchise or peculiar privilege, from the highest to the lowest, known
to the English laws. It would be perfectly proper, and in consonance
with the legal meaning and common understanding of the term, to say of
Victoria, that "she is free of the throne of England," and of a cobbler,
that he "is free of his trade in the city of London."
But the more common and important signification of the words is to
designate the _citizens_, native or naturalized, and those specially
entitled, as a matter of political and acknowledged right, to
participate in, or be protected by the government, as distinguished from
aliens, or persons attainted, or deprived of their political privileges
as members of the state. Thus they use the term "free British
subject"--"freeman of the realm," &c. In short, the terms, when used in
political papers, have a meaning very nearly, if not entirely
synonymous, with that which we, in this country, now give to the word
_citizen_.
But throughout the English law, and among all the variety of ways, in
which the words "free" and "freemen" are used, as _legal_ terms, they
are _never used as the correlatives, or opposites of slaves or
slavery_--and for the reason that they have in England no such persons
or institutions, known to their laws, as slaves or slavery. The use of
the words "free" and "freemen," therefore, do not in England at all
imply the existence of slaves or slavery.
This use of the words "free" and "freemen," which is common to the
English law, was introduced into this country at its first settlement,
in all, or very nearly all the colonial charters, patents, &c. and
continued in use, in this sense, until the time of the revolution; and,
of course, until the adoption of the first state constitutions.[15]
The persons and companies, to whom the colonial charters were granted,
and those who were afterwards to be admitted as their associates, were
described as "freemen of said colony," "freemen of said province,"
"freeman of said company," "freemen of the said company and body
politick," &c. (See charter of Rhode Island.)
Many, if not all the charters had a provision similar in substance to
the following in the charter to Rhode Island, viz:
"That all and every the subjects of us, our heirs and successors,"
(i.e. of the king of England granting the charter,) "which are
already planted and settled within our said colony of Providence
Plantations, or which shall hereafter go to inhabit within the said
colony, and all and every of their children which have been born
there, or which shall happen hereafter to be born there, or on the
sea going thither, or returning from thence, shall have and enjoy all
liberties and immunities of _free_ and natural subjects, within any
of the dominions of us, our heirs and successors, to all intents,
constructions and purposes whatsoever, as if they and every of them
were born within the realm of England."
The following enactment of William Penn, as proprietary and Governor of
the Province of Pennsylvania and its territories, illustrates one of the
common uses of the word "freeman," as known to the English law, and as
used in this country prior to the revolution--that is, as distinguishing
a native born citizen, and one capable of holding real estate, &c. from
a foreigner, _not naturalized_, and on that account subject to certain
disabilities, such as being incompetent to hold real estate.
"And forasmuch as it is apparent that the just encouragement of the
inhabitants of the province, and territories thereunto belonging, is
likely to be an effectual way for the improvement thereof; and since
some of the people that live therein and are likely to come
thereunto, _are foreigners, and so not freemen, according to the
acceptation of the laws of England, the consequences of which may
prove very detrimental to them in their estates and traffic_, and so
injurious to the prosperity of this province and territories thereof.
_Be it enacted_, by the proprietary and governor of the province and
counties aforesaid, by and with the advice and consent of the
deputies of the _freemen_ thereof, in assembly met, _That all persons
who are strangers and foreigners_, that do now inhabit this province
and counties aforesaid, _that hold land in fee in the same, according
to the law of a freeman_, and who shall solemnly promise, within
three months after the publication thereof, in their respective
county courts where they live, upon record, faith and allegiance to
the king of England and his heirs and successors, and fidelity and
lawful obedience to the said William Penn, proprietary and governor
of the said province and territories, and his heirs and assigns,
according to the king's letters, patents and deed aforesaid, _shall
be held and reputed freemen of the province and counties aforesaid,
in as ample and full a manner as any person residing therein_. And it
is hereby further enacted, by the authority aforesaid, That when at
any time any person, that is a foreigner, shall make his request to
the proprietary and governor of this province and territories
thereof, _for the aforesaid freedom_, the said person shall be
admitted on the conditions herein expressed, paying at his admission
twenty shillings sterling, and no more, any thing in this law, or any
other law, act or thing in this province, to the contrary in any wise
notwithstanding."
"Given at Chester," &c., "under the hand and broad seal of William
Penn, proprietary and governor of this province and territories
thereunto belonging, in the second year of his government, by the
king's authority. W. PENN."[16]
Up to the time of our revolution, the _only_ meaning which the words
"free" and "freemen" had, in the English law, _in the charters granted
to the colonies_, and in the important documents of a political
character, when used to designate one person as distinguished from
another, was to designate a person enjoying some franchise or privilege,
as distinguished from aliens or persons not enjoying a similar
franchise. They were never used to designate a free person as
distinguished from a slave--for the very sufficient reason that all
these _fundamental_ laws presumed that there were no slaves.
Was such the meaning of the words "free" and "freemen," as used in the
constitutions adopted prior to 1789, in the States of Georgia, North and
South Carolina, Maryland, Delaware and New York?
The legal rule of interpretation before mentioned, viz: that an innocent
meaning must be given to all words that are susceptible of it--would
compel us to give the words this meaning, instead of a meaning merely
correlative with slavery, even if we had no other ground than the rule
alone, for so doing. But we have other grounds. For instance:--Several
of these constitutions have themselves explicitly given to the words
this meaning. While not one of them have given them a meaning
correlative with slaves, inasmuch as none of them purport either to
establish, authorize, or even to know of the existence of slavery.
The constitution of Georgia (adopted in 1777) evidently uses the word
"free" in this sense, in the following article:
"Art. 11. No person shall be entitled to more than one vote, which
shall be given in the county where such person resides, except as
before excepted; _nor shall any person who holds any title of
nobility, be entitled to a vote, or be capable of serving as a
representative, or hold any post of honor, profit, or trust, in this
State, while such person claims his title of nobility; but if the
person shall give up such distinction_, in the manner as may be
directed by any future legislature, _then, and in such case_, he
shall be entitled to a _vote, and represent_, as before directed, and
enjoy all the other benefits of a FREE citizen."
The constitution of North Carolina, (adopted in 1776), used the word in
a similar sense, as follows:
"40. That every _foreigner_, who comes to settle in this State,
having first taken an oath of allegiance to the same, may purchase,
or by other just means acquire, hold, and transfer land, or other
real estate, _and after one year's residence_ be deemed a FREE
citizen."
This constitution also repeatedly uses the word "freeman;" meaning
thereby "a free citizen," as thus defined.
The constitution of Pennsylvania, (adopted in 1776,) uses the word in
the same sense:
"Sec. 42. Every _foreigner_, of good character, who comes to settle
in this State, having first taken an oath or affirmation of
allegiance to the same, may purchase, or by other just means acquire,
hold and transfer land or other real estate; _and after one year's
residence, shall be deemed a_ FREE _denizen thereof_, and entitled to
all the rights of a natural born subject of this state, except that
he shall not be capable of being elected a representative until after
two year's residence."
The constitution of New York, (adopted in 1777,) uses the word in the
same manner:
"Sec. 6. That every male inhabitant of full age, who has personally
resided in one of the counties of this state for six months,
immediately preceding the day of election, shall at such election be
entitled to vote for representatives of the said county in assembly,
if during the time aforesaid he shall have been a freeholder,
possessing a freehold of the value of twenty pounds, within the said
county, or have rented a tenement therein of the yearly value of
forty shillings, and been rated and actually paid taxes to the State.
_Provided always_, That every person who now is a _freeman of the
city of Albany, or who was made a freeman of the city of New York_,
on or before the fourteenth day of October, in the year of our Lord
one thousand seven hundred and seventy-five, and shall be actually
and usually resident in the said cities respectively, shall be
entitled to vote for representatives in assembly within his place of
residence."
The constitution of South Carolina, (formed in 1778,) uses the word
"free" in a sense which may, at first thought, be supposed to be
different from that in which it is used in the preceding cases:
Sec. 13. The qualification of electors shall be that "every _free
white man_, and no other person," &c., "shall be deemed a person
qualified to vote for, and shall be capable of being elected a
representative."
It may be supposed that here the word "free" is used as the correlative
of slavery; that it presumes the "whites" to be "free;" and that it
therefore implies that other persons than "white" may be slaves. Not so.
No other parts of the constitution authorize such an inference; and the
implication from the words themselves clearly is, that _some_ "white"
persons might not be "free." The distinction implied is between those
"white" persons that were "free," and those that were not "free." If
this were not the distinction intended, and if _all_ "white" persons
were "free," it would have been sufficient to have designated the
electors simply as "white" persons, instead of designating them as both
"free" and "white." If therefore it were admitted that the word "free,"
in this instance, were used as the correlative of slaves, the
implication would be that _some_ "white" persons were, or might be
slaves. There is therefore no alternative but to give to the word
"free," in this instance, the same meaning that it has in the
constitutions of Georgia, North Carolina and Pennsylvania.
In 1704 South Carolina passed an act entitled, "_An act for making
aliens FREE of this part of the Province._"--This statute remained in
force until 1784, when it was repealed by an act entitled "_An act to
confer the right of citizenship on aliens_"[17]
One more example of this use of the word "_freeman_." The constitution
of Connecticut, adopted as late as 1818, has this provision:
"Art. 6. Sec. 1. All persons who have been, or _shall hereafter_,
previous to the ratification of this constitution, _be admitted
freemen_, according to the existing laws of this State, shall be
electors."
Surely no other proof can be necessary of the meaning of the words
"free" and "freeman," as used in the constitutions existing in 1789; or
that the use of those words furnish no implication in support of either
the 'existence', or the constitutionality of slavery, prior to the
adoption of the constitution of the United States in that year.
I have found, in _none_ of the State constitutions before mentioned,
(existing in 1789,) any other evidence or intimation of the existence of
slavery, than that already commented upon and refuted. And if there be
no other, then it is clear that slavery had no legal existence under
them. And there was consequently no _constitutional_ slavery in the
country up to the adoption of the constitution of the United States.
[Footnote 14: The State Constitutions of 1789 were adopted as follows:
Georgia, 1777; South Carolina, 1778; North Carolina, 1776; Virginia,
1776; Maryland, 1776; Delaware, 1776; Pennsylvania, 1776; New Jersey,
1776; New York, 1777; Massachusetts, 1780; New Hampshire, 1783.
These early Constitutions ought to be collected and published with
appropriate notes.]
[Footnote 15: Since that time the words "free" and "freemen" have been
gradually falling into disuse, and the word citizen been
substituted--doubtless for the reason that it is not pleasant to our
pride or our humanity to use words, one of whose significations serves
to suggest a contrast between ourselves and slaves.]
[Footnote 16: Dallas's edition of the Laws of Pennsylvania, vol. 1,
Appendix, page 25.]
[Footnote 17: Cooper's edition of the Laws of South Carolina, vols. 2
and 4. "Aliens,"]