THE CONSTITUTION OF THE UNITED STATES.
We come now to the period commencing with the adoption of the
constitution of the United States.
We have already seen that slavery had not been authorized or established
by any of the fundamental constitutions or charters that had existed
previous to this time; that it had always been a mere abuse sustained by
the common consent of the strongest party, in defiance of the avowed
constitutional principles of their governments. And the question now is,
whether it was constitutionally established, authorized or sanctioned by
the constitution of the United States?
It is perfectly clear, in the first place, that the constitution of the
United States did not, _of itself, create or establish_ slavery as a
_new_ institution; or even give any authority to the state governments
to establish it as a new institution.--The greatest sticklers for
slavery do not claim this. The most they claim is, that it recognized it
as an institution already legally existing, under the authority of the
state governments; and that it virtually guarantied to the states the
right of continuing it in existence during their pleasure. And this is
really the only question arising out of the constitution of the United
States on this subject, viz: whether it _did_ thus recognize and
sanction slavery as an _existing_ institution?
This question is, in reality, answered in the negative by what has
already been shown; for if slavery had no constitutional existence,
under the state constitutions, prior to the adoption of the constitution
of the United States, then it is absolutely certain that the
constitution of the United States did _not_ recognize it as a
constitutional institution; for it cannot, of course, be pretended that
the United States constitution recognized, as constitutional, any state
institution that did not constitutionally exist.
Even if the constitution of the United States had _intended_ to
recognize slavery, as a constitutional _state_ institution, such
intended recognition would have failed of effect, and been legally void,
because slavery then had no constitutional existence to be recognized.
Suppose, for an illustration of this principle, that the constitution of
the United States had, by implication, plainly taken it for granted that
the state legislatures had power--derived from the _state_
constitutions--to order arbitrarily that infant children, or that men
without the charge of crime, should be maimed--deprived, for instance,
of a hand, a foot, or an eye. This intended recognition, on the part of
the constitution of the United States, of the legality of such a
practice, would obviously have failed of all legal effect--would have
been mere surplussage--if it should appear, from an examination of the
state constitutions themselves, that they had really conferred no such
power upon the legislatures. And this principle applies with the same
force to laws that would arbitrarily make men or children slaves, as to
laws that should arbitrarily order them to be maimed or murdered.
We might here safely rest the whole question--for no one, as has already
been said, pretends that the constitution of the United States, by its
own authority, created or authorized slavery as a new institution; but
only that it intended to recognize it as one already established by
authority of the state constitutions. This intended recognition--if
there were any such--being founded on an error as to what the state
constitutions really did authorize, necessarily falls to the ground, a
defunct intention.
We make a stand, then, at this point, and insist that the main
question--the only material question--is already decided against
slavery; and that it is of no consequence what recognition or sanction
the constitution of the United States may have intended to extend to it.
The constitution of the United States, at its adoption, certainly took
effect upon, and made citizens of _all_ "the people of the United
States," who were _not slaves_ under the state constitutions. No one can
deny a proposition so self-evident as that. If, then, the _State_
constitutions, then existing, authorized no slavery at all, the
constitution of the United States took effect upon, and made citizens of
_all_ "the people of the United States," without discrimination. And if
_all_ "the people of the United States" were made citizens of the United
States, by the United States constitution, at its adoption, it was then
forever too late for the _state_ governments to reduce any of them to
slavery. They were thenceforth citizens of a higher government, under a
constitution that was "the supreme law of the land," "any thing in the
constitution or laws of the states to the contrary notwithstanding." If
the state governments could enslave citizens of the United States, the
state constitutions, and not the constitution of the United States,
would be the "supreme law of the land"--for no higher act of supremacy
could be exercised by one government over another, than that of taking
the citizens of the latter out of the protection of their government,
and reducing them to slavery.
SECONDLY.
Although we might stop--we yet do not choose to stop--at the point last
suggested. We will now go further, and attempt to show, specifically
from its provisions, that the constitution of the United States, not
only does not recognize or sanction slavery, as a legal institution, but
that, on the contrary, it presumes all men to be free; that it
positively denies the right of property in man; and that it, _of
itself_, makes it impossible for slavery to have a legal existence in
any of the United States.
In the first place--although the assertion is constantly made, and
rarely denied, yet it is palpably a mere begging of the whole question
in favor of slavery, to say that the constitution _intended_ to sanction
it; for if it _intended_ to sanction it, it _did_ thereby necessarily
sanction it, (that is, if slavery then had any constitutional existence
to be sanctioned.) The _intentions_ of the constitution are the only
means whereby it sanctions any thing. And its intentions necessarily
sanction everything to which they apply, and which, in the nature of
things, they are competent to sanction. To say, therefore, that the
constitution _intended_ to sanction slavery, is the same as to say that
it _did_ sanction it; which is begging the whole question, and
substituting mere assertion for proof.
Why, then, do not men say distinctly, that the constitution _did_
sanction slavery, instead of saying that it _intended_ to sanction it?
We are not accustomed to use the word "_intention_," when speaking of
the other grants and sanctions of the constitution. We do not say, for
example, that the constitution _intended_ to authorize congress "to coin
money," but that it _did_ authorize them to coin it. Nor do we say that
it intended to authorize them "to declare war;" but that it did
authorize them to declare it. It would be silly and childish to say
merely that it _intended_ to authorize them "to coin money," and "to
declare war," when the language authorizing them to do so, is full,
explicit and positive. Why, then, in the case of slavery, do men say
merely that the constitution _intended_ to sanction it, instead of
saying distinctly, as we do in the other cases, that it _did_ sanction
it? The reason is obvious. If they were to say unequivocally that it
_did_ sanction it, they would lay themselves under the necessity of
pointing to the _words_ that sanction it; and they are aware that the
_words alone_ of the constitution do not come up to that point. They,
therefore, assert simply that the constitution _intended_ to sanction
it; and they then attempt to support the assertion by quoting certain
words and phrases, which they say are _capable_ of covering, or rather
of concealing such an intention; and then by the aid of exterior,
circumstantial and historical evidence, they attempt to enforce upon the
mind the conclusion that, as matter of fact, such was the intention of
those who _drafted_ the constitution; and thence they finally infer that
such was the intention of the constitution itself.
The error and fraud of this whole procedure--and it is one purely of
error and fraud--consists in this--that it artfully substitutes the
supposed intentions of those who drafted the constitution, for the
intentions of the constitution itself; and, secondly, it personifies the
constitution as a crafty individual; capable of both open and secret
intentions; capable of legally participating in, and giving effect to
all the subtleties and double dealing of knavish men; and as actually
intending to secure slavery, while openly professing to "secure and
establish liberty and justice." It personifies the constitution as an
individual capable of having private and criminal intentions, which it
dare not distinctly avow, but only darkly hint at, by the use of words
of an indefinite, uncertain and double meaning, whose application is to
be gathered from external circumstances.
The falsehood of all these imaginings is apparent, the moment it is
considered that the constitution is not a _person_, of whom an
"intention," not legally expressed, can be asserted; that it has none of
the various and selfish passions and motives of action, which sometimes
prompt _men_ to the practice of duplicity and disguise; that it is
merely a written legal instrument; that, as such, it must have a fixed,
and not a double meaning; that it is made up entirely of intelligible
words; and that it has, and _can_ have, no soul, no "_intentions_," no
motives, no being, no personality, except what those words alone express
or imply. Its "intentions" are nothing more nor less than the legal
meaning of its words. Its intentions are no guide to its legal
meaning--as the advocates of slavery all assume; but its legal meaning
is the sole guide to its intentions. This distinction is all important
to be observed; for if we can gratuitously assume the intentions of a
legal instrument to be what we may wish them to be, and can then strain
or pervert the ordinary meaning of its words, in order to make them
utter those intentions, we can make any thing we choose of any legal
instrument whatever. The legal meaning of the words of an instrument is,
therefore, necessarily our only guide to its intentions.
In ascertaining the legal meaning of the words of the constitution,
these rules of law, (the reasons of which will be more fully explained
hereafter,) are vital to be borne constantly in mind, viz: 1st, that no
intention in violation of natural justice and natural right, (like that
to sanction slavery,) can be ascribed to the constitution, unless that
intention be expressed in terms that are _legally competent_ to express
such an intention; and, 2d, that no terms, except those that are
plenary, express, explicit, distinct, unequivocal, _and to which no
other meaning can be given, are legally competent_ to authorize or
sanction any thing contrary to natural right. The rule of law is
materially different as to the terms necessary to legalize and sanction
any thing contrary to natural right, and those necessary to legalize
things that are consistent with natural right. The latter may be
sanctioned by implication and inference; the former only by inevitable
implication, or by language that is full, definite, express, explicit,
unequivocal, and whose _unavoidable_ import is to sanction the _specific
wrong_ intended.
To assert, therefore, that the constitution _intended_ to sanction
slavery, is, in reality, equivalent to asserting that the _necessary_
meaning, the _unavoidable_ import of the _words alone_ of the
constitution, come fully up to the point of a clear, definite, distinct,
express, explicit, unequivocal, necessary and peremptory sanction of the
specific thing, _human slavery, property in man_. If the _necessary_
import of its _words alone_ do but fall an iota short of this point, the
instrument gives, and, legally speaking, intended to give no legal
sanction to slavery. Now, who can, in good faith, say that the _words
alone_ of the constitution come up to this point? No one, who knows any
thing of law, and the meaning of words. Not even the name of the thing,
alleged to be sanctioned, is given. The constitution itself contains no
designation, description, or necessary admission of the existence of
such a thing as slavery, servitude, or the right of property in man. We
are obliged to go out of the instrument, and grope among the records of
oppression, lawlessness and crime--records unmentioned, and of course
unsanctioned by the constitution--to _find_ the thing, to which it is
said that the words of the constitution apply. And when we have found
this thing, which the constitution dare not name, we find that the
constitution has sanctioned it, (if at all,) only by enigmatical words,
by unnecessary implication and inference, by inuendo and double
entendre, and under a name that entirely fails of describing the thing.
Every body must admit that the constitution itself contains no language,
from which _alone_ any court, that were either strangers to the prior
existence of slavery, or that did not assume its prior existence to be
legal, could legally decide that the constitution sanctioned it. And
this is the true test for determining whether the constitution does, or
does not, sanction slavery, viz: whether a court of law, strangers to
the prior existence of slavery, or not assuming its prior existence to
be legal--looking only at the naked language of the instrument--could,
consistently with legal rules, judicially determine that it sanctioned
slavery. Every lawyer, who at all deserves that name, knows that the
claim for slavery could stand no such test. The fact is palpable, that
the constitution contains no such legal sanction; that it is only by
unnecessary implication and inference, by inuendo and double-entendre,
by the aid of exterior evidence, the assumption of the prior legality of
slavery, and the gratuitous imputation of criminal intentions that are
not avowed in legal terms, that any sanction of slavery, (as a legal
institution,) can be extorted from it.
But legal rules of interpretation entirely forbid and disallow all such
implications, inferences, inuendos and double-entendre, all aid of
exterior evidence, all assumptions of the prior legality of slavery, and
all gratuitous imputations of criminal unexpressed intentions; and
consequently compel us to come back to the _letter_ of the instrument,
and find _there_ a distinct, clear, necessary, peremptory sanction for
slavery, or to surrender the point.
To the unprofessional reader these rules of interpretation will appear
stringent, and perhaps unreasonable and unsound. For his benefit,
therefore, the reasons on which they are founded, will be given. And he
is requested to fix both the reasons and the rules fully in his mind,
inasmuch as the whole legal meaning of the constitution, in regard to
slavery, may perhaps be found to turn upon the construction which these
rules fix upon its language.
But before giving the reasons of this rule, let us offer a few remarks
in regard to _legal_ rules of interpretation in general. Many persons
appear to have the idea that these rules have no foundation in reason,
justice or necessity; that they are little else than whimsical and
absurd conceits, arbitrarily adopted by the courts. No idea can be more
erroneous than this. The rules are absolutely indispensable to the
administration of the justice arising out of any class of legal
instruments whatever--whether the instruments be simple contracts
between man and man, or statutes enacted by legislatures, or fundamental
compacts or constitutions of government agreed upon by the people at
large. In regard to all these instruments, the _law_ fixes, and
necessarily must fix their meaning; and for the obvious reason, that
otherwise their meaning could not be fixed at all. The parties to the
simplest contract may disagree, or pretend to disagree, as to its
meaning, and of course as to their respective rights under it. The
different members of a legislative body, who vote for a particular
statute, may have different intentions in voting for it, and may
therefore differ, or pretend to differ, as to its meaning. The people
of a nation may establish a compact of government. The motives of one
portion may be to establish liberty, equality and justice; and they may
think, or pretend to think that the words used in the instrument convey
that idea. The motives of another portion may be to establish the
slavery or subordination of one part of the people, and the superiority
or arbitrary power of the other part; and they may think, or pretend to
think, that the language agreed upon by the whole authorizes such a
government. In all these cases, unless there were some rules of law,
applicable alike to all instruments, and competent to settle their
meaning, their meaning could not be settled; and individuals would of
necessity lose their rights under them. _The law, therefore, fixes their
meaning_; and the rules by which it does so, are founded in the same
justice, reason, necessity and truth, as are other legal principles, and
are for that reason as inflexible as any other legal principles
whatever. They are also simple, intelligible, natural, obvious. Every
body are presumed to know them, as they are presumed to know any other
legal principles. No one is allowed to plead ignorance of them, any more
than of any other principle of law. All persons and people are presumed
to have framed their contracts, statutes and constitutions with
reference to them. And if they have not done so--if they have said black
when they meant white, and one thing when they meant another, they must
abide the consequences. The law will presume that they meant what they
said. No one, in a court of justice, can claim any rights founded on a
construction different from that which these rules would give to the
contract, statute, or constitution, under which he claims. The judiciary
cannot depart from these rules, for two reasons. First, because the
rules embody in themselves principles of justice, reason and truth; and
are therefore as necessarily law as any other principles of justice,
reason and truth; and, secondly, because if they could lawfully depart
from them in one case, they might in another, at their own caprice.
Courts could thus at pleasure become despotic; all certainty as to the
legal meaning of instruments would be destroyed; and the administration
of justice, according to the true meaning of contracts, statutes and
constitutions, would be rendered impossible.
What, then, are some of these rules of interpretation?
One of them, (as has been before stated,) is, that where words are
susceptible of two meanings, one consistent, and the other inconsistent,
with justice and natural right, that meaning, and _only that_ meaning,
which is consistent with right, shall be attributed to them--unless
other parts of the instrument overrule that interpretation.
Another rule, (if indeed it be not the same,) is, that no language,
except that which is peremptory, and no implication, except one that is
inevitable, shall be held to authorize or sanction any thing contrary to
natural right.
Another rule is, that no _extraneous or historical evidence_ shall be
admitted to fix upon a statute an unjust or immoral meaning, when the
words themselves of the act are susceptible of an innocent one.
One of the reasons of these stringent and inflexible rules, doubtless
is, that judges have always known that, in point of fact, natural
justice was itself law, and that nothing inconsistent with it could be
made law, even by the most explicit and peremptory language that
legislatures could employ.--But judges have always, in this country and
in England, been dependent upon the executive and the legislature for
their appointments and salaries, and been amenable to the legislature by
impeachment. And as the executive and legislature have always enacted
more or less statutes, and had more or less purposes to accomplish, that
were inconsistent with natural right, judges have seen that it would be
impossible for them to retain their offices, and at the same time
maintain the integrity of the law against the will of those in whose
power they were. It is natural also that the executive should appoint,
and that the legislature should approve the appointment of no one for
the office of judge, whose integrity they should suppose would stand in
the way of their purposes.--The consequence has been that all judges,
(probably without exception,) though they have not dared deny, have yet
in practice yielded the vital principle of law; and have succumbed to
the arbitrary mandates of the other departments of the government, so
far as to carry out their enactments, though inconsistent with natural
right. But, as if sensible of the degradation and criminality of so
doing, they have made a stand at the first point at which they could
make it, without bringing themselves in a direct collision with those on
whom they were dependent. And that point is, that they will administer,
as law, no statute, that is contrary to natural right, unless its
language be so explicit and peremptory, that there is no way of evading
its authority, but by flatly denying the authority of those who enacted
it. They (the court) will themselves add nothing to the language of the
statute, to help out its supposed meaning. They will imply nothing,
infer nothing, and assume nothing, except what is inevitable; they will
not go out of the letter of the statute in search of any _historical_
evidence as to the meaning of the legislature, to enable them to
effectuate any _unjust_ intentions not fully expressed by the statute
itself. Wherever a statute is supposed to have in view the
accomplishment of any unjust end, they will apply the most stringent
principles of construction to prevent that object's being effected. They
will not go a hair's breadth beyond the literal or inevitable import _of
the words_ of the statute, even though they should be conscious, all the
while, that the real intentions of the makers of it would be entirely
defeated by their refusal. The rule, (as has been already stated,) is
laid down by the supreme court of the United States in these words:
"Where rights are infringed, where fundamental principles are
overthrown, where the general system of the law is departed from, the
legislative intention must be expressed with _irresistible clearness_,
to induce a court of justice to suppose a design to effect such
objects."--(_United States_ vs. _Fisher et al., 2 Cranch_, 390.)[18]
Such has become the settled doctrine of courts. And although it does not
come up to the true standard of law, yet it is good in itself, so far as
it goes, and ought to be unflinchingly adhered to, not merely for its
own sake, but also as a scaffolding, from which to erect that higher
standard of law, to wit, that no language or authority whatever can
legalize any thing inconsistent with natural justice.[19]
Another reason for the rules before given, against all constructions,
implications and inferences--except inevitable ones--in favor of
injustice, is, that but for them we should have no guaranty that our
honest contracts, or honest laws would be honestly administered by the
judiciary. It would be nearly or quite impossible for men, in framing
their contracts or laws, to use language so as to exclude every possible
implication in favor of wrong, if courts were allowed to resort to such
implications. _The law therefore excludes them_; that is, the ends of
justice--the security of men's rights under their honest contracts, and
under honest legislative enactments--make it imperative upon courts of
justice to ascribe an innocent and honest meaning to all language that
will possibly bear an innocent and honest meaning. If courts of justice
could depart from this rule for the purpose of upholding what was
contrary to natural right, and could employ their ingenuity in spying
out some implied or inferred authority, for sanctioning what was in
itself dishonest or unjust, when such was not the _necessary_ meaning of
the language used, there could be no security whatever for the honest
administration of honest laws, or the honest fulfilment of men's honest
contracts. Nearly all language, on the meaning of which courts
adjudicate, would be liable, at the caprice of the court, to be
perverted from the furtherance of honest, to the support of dishonest
purposes. Judges could construe statutes and contracts in favor of
justice or injustice, as their own pleasure might dictate.
Another reason of the rules, is, that as governments have, and can have
no legitimate objects or powers opposed to justice and natural right, it
would be treason to all the legitimate purposes of government, for the
judiciary to give any other than an honest and innocent meaning to any
language, that would bear such a construction.
The same reasons that forbid the allowance of any unnecessary
implication or inference in favor of a wrong, in the construction of a
statute, forbids also the introduction of any _extraneous or historical_
evidence to prove that the intentions of the legislature were to
sanction or authorize a wrong.
The same rules of construction, that apply to statutes, apply also to
all those private contracts between man and man, _which courts actually
enforce_. But as it is both the right and the duty of courts to
invalidate altogether such private contracts as are inconsistent with
justice, they will admit evidence exterior to their words, _if offered
by a defendant for the purpose of invalidating them_. At the same time,
a plaintiff, or party that wishes to set up a contract, or that claims
its fulfilment, will not be allowed to offer any evidence exterior to
its words, to prove that the contract is contrary to justice--because,
if his evidence were admitted, it would not make his unjust claim a
legal one; but only invalidate it altogether. But as courts do not claim
the right of invalidating statutes and constitutions, they will not
admit evidence, exterior to their language, to give them such a
meaning, that they ought to be invalidated.
I think no one--no lawyer, certainly--will now deny that it is a legal
rule of interpretation--that must be applied to all statutes, and also
to all private contracts _that are to be enforced_--that an innocent
meaning, _and nothing beyond an innocent meaning_, must be given to all
language that will possibly bear such a meaning. All will probably admit
that the rule, as laid down by the supreme court of the United States,
is correct, to wit, that "where rights are infringed, where fundamental
principles are overthrown, where the general system of the law is
departed from, the legislative intention must be expressed with
_irresistible clearness_, to induce a court of justice to suppose a
design to effect such objects."
But perhaps it will be said that these rules, which apply to all
statutes, and to all private contracts that are to be enforced, do not
apply to the constitution. And why do they not? No reason whatever can
be given. A constitution is nothing but a contract, entered into by the
mass of the people, instead of a few individuals. This contract of the
people at large becomes a law unto the judiciary that administer it,
just as private contracts, (so far as they are consistent with natural
right,) are laws unto the tribunals that adjudicate upon them. All the
essential principles that enter into the question of obligation, in the
case of a private contract, or a legislative enactment, enter equally
into the question of the obligation of a contract agreed to by the whole
mass of the people. This is too self-evident to need illustration.
Besides, is it not as important to the safety and rights of all
interested, that a constitution or compact of government, established by
a whole people, should be so construed as to promote the ends of
justice, as it is that a private contract or a legislative enactment
should be thus construed? Is it not as necessary that some check should
be imposed upon the judiciary to prevent them from perverting, at
pleasure, the whole purpose and character of the government, as it is
that they should be restrained from perverting the meaning of a private
contract, or a legislative enactment? Obviously written compacts of
government could not be upheld for a day, if it were understood by the
mass of the people that the judiciary were at liberty to interpret them
according to their own pleasure, instead of their being restrained by
such rules as have now been laid down.
Let us now look at some of the provisions of the constitution, and see
what crimes might be held to be authorized by them, if their meaning
were not to be ascertained and restricted by such rules of
interpretation as apply to all other legal instruments.
The second amendment to the constitution declares that "the right of the
people to keep and bear arms shall not be infringed."
This right "to keep and bear arms," implies the right to use them--as
much as a provision securing to the people the right to buy and keep
food, would imply their right also to eat it. But this implied right to
use arms, is only a right to use them in a manner consistent with
natural rights--as, for example, in defence of life, liberty, chastity,
&c. Here is an innocent and just meaning, of which the words are
susceptible; and such is therefore the _extent_ of their legal meaning.
If courts could go beyond the innocent and necessary meaning of the
words, and imply or infer from them an authority for anything contrary
to natural right, they could imply a constitutional authority in the
people to use arms, not merely for the just and innocent purposes of
defence, but also for the criminal purposes of aggression--for purposes
of murder, robbery, or any other acts of wrong to which arms are capable
of being applied. The mere _verbal_ implication would as much authorize
the people to use arms for unjust, as for just, purposes. But the
_legal_ implication gives only an authority for their innocent use. And
why? Simply because justice is the end of all law--the legitimate end of
all compacts of government. It is itself law; and there is no right or
power among men to destroy its obligation.
Take another case. The constitution declares that "Congress shall have
power to _regulate commerce_ with foreign nations, and among the several
states, and with the Indian tribes."
This power has been held by the supreme court to be an exclusive one in
the general government--and one that cannot be controlled by the states.
Yet it gives congress no constitutional authority to legalize any
commerce inconsistent with natural justice between man and man; although
the _mere_ verbal import of the words, if stretched to their utmost
tension in favor of the wrong, would authorize congress to legalize a
commerce in poisons and deadly weapons, for the express purpose of
having them used in a manner inconsistent with natural right--as for the
purposes of murder.
At natural law, and on principles of natural right, a person, who should
_sell_ to another a weapon or a poison, knowing that it would, or
intending that it should be used for the purpose of murder, would be
legally an accessary to the murder that should be committed with it. And
if the grant to congress of a "power to regulate commerce," can be
stretched beyond the _innocent_ meaning of the words--beyond the power
of regulating and authorizing a commerce that is consistent with natural
justice--and be made to cover every thing, intrinsically criminal, that
can be perpetrated under the name of commerce--then congress have the
authority of the constitution for granting to individuals the liberty of
bringing weapons and poisons from "foreign nations" into this, and from
one state into another, and selling them openly for the express purposes
of murder, without any liability to legal restraint or punishment.
Can any stronger cases than these be required to prove the necessity,
the soundness, and the inflexibility of that rule of law, which requires
the judiciary to ascribe an innocent meaning to all language that will
possibly bear an innocent meaning? and to ascribe _only_ an innocent
meaning to language whose mere verbal import might be susceptible of
both an innocent _and_ criminal meaning? If this rule of interpretation
could be departed from, there is hardly a power granted to congress,
that might not _lawfully_ be perverted into an authority for legalizing
crimes of the highest grade.
In the light of these principles, then, let us examine those clauses of
the constitution, that are relied on as recognizing and sanctioning
slavery. They are but three in number.
The one most frequently quoted is the third clause of Art. 4, Sec. 2, in
these words:
"No person, held to service or labor in one state, under the laws
thereof, escaping into another, shall in consequence of any law or
regulation therein, be discharged from such service or labor; but
shall be delivered up on claim of the party to whom such service or
labor may be due."
There are several reasons why this clause renders no sanction to
slavery.
1. It must be construed, if possible, as sanctioning nothing contrary to
natural right.
If there be any "service or labor" whatever, to which any "persons"
whatever may be "held," _consistently with natural right_, and which any
person may, consistently with natural right, "_claim_" as his "_due_" of
another, such "service or labor," and _only_ such, is recognized and
sanctioned by this provision.
It needs no argument to determine whether the "service or labor," that
is exacted of a slave, is such as can be "_claimed_," _consistently with
natural right_, as being "_due_" from him to his master. And if it
cannot be, some other "service or labor" must, if possible, be found for
this clause to apply to.
The proper definition of the word "service," in this case, obviously is,
the labor of a _servant_. And we find, that at and before the adoption
of the constitution, the persons recognized by the state laws as
"servants," constituted a numerous class. The statute books of the
states abounded with statutes in regard to "servants." Many seem to have
been indented as servants by the public authorities, on account of
their being supposed incompetent, by reason of youth and poverty, to
provide for themselves. Many were doubtless indented as apprentices by
their parents and guardians, as now. The English laws recognized a class
of servants--and many persons were brought here from England, in that
character, and retained that character afterward. Many indented or
contracted themselves as servants for the payment of their passage money
to this country. In these various ways, the class of persons, recognized
by the statute books of the states as "servants," was very numerous; and
formed a prominent subject of legislation. Indeed, no other evidence of
their number is necessary than the single fact, that "persons bound to
service for a term of years," were specially noticed by the constitution
of the United States, (Art. 1, Sec. 2,) which requires that they be
counted as units in making up the basis of representation. There is
therefore not the slightest apology for pretending that there was not a
sufficient class for the words "service or labor" to refer to, without
supposing the existence of slaves.[20]
2. "_Held to service or labor_," is no legal description of slavery.
Slavery is property in man. It is not necessarily attended with either
"service or labor." A very considerable portion of the slaves are either
too young, too old, too sick, or too refractory to render "service or
labor." As a matter of fact, slaves, who are able to labor, may, in
general, be compelled by their masters to do so. Yet labor is not an
essential or necessary condition of slavery. The essence of slavery
consists in a person's being owned as property--without any reference to
the circumstances of his being compelled to labor, or of his being
permitted to live in idleness, or of his being too young, or too old, or
too sick to labor.
If "service or labor" were either a test, or a necessary attendant of
slavery, that test would of itself abolish slavery; because all slaves,
before they can render "service or labor," must have passed through the
period of infancy, when they could render neither service nor labor, and
when, therefore, according to this test, they were free. And if they
were free in infancy, they could not be subsequently enslaved.
3. "Held to service or labor in one state, _under the laws thereof_."
The "_laws_" take no note of the fact whether a slave "labors," or not.
They recognize no obligation, on his part, to labor. They will enforce
no "_claim_" of a master, upon his slave, for "service or labor." If the
slave refuse to labor, the law will not interfere to compel him. The law
simply recognizes the master's _right of property_ in the slave--just as
it recognizes his right of property in a horse. Having done that, it
leaves the master to compel the slave, if he please, and if he can--as
he would compel a horse--to labor. If the master do not please, or be
not able, to compel the slave to labor, the law takes no more cognizance
of the case than it does of the conduct of a refractory horse. In short,
it recognizes no obligation, on the part of the slave, to labor, if he
can avoid doing so. It recognizes no "_claim_," on the part of the
master, upon his slave, for "services or labor," as "_due_" from the
latter to the former.
4. Neither "service" nor "labor" is necessarily slavery; and not being
necessarily slavery, the words cannot, in this case, be strained beyond
their necessary meaning, to make them sanction a wrong. The law will
not allow words to be strained a hair's breadth beyond their _necessary_
meaning, to make them authorize a wrong. _The stretching, if there be
any, must always be towards the right._ The words "service or labor" do
not necessarily, nor in their common acceptation, so much as suggest the
idea of slavery--that is, they do not suggest the idea of the laborer or
servant being the property of the person for whom he labors. An indented
apprentice serves and labors for another. He is "_held_" to do so, under
a contract, and for a consideration, that are recognized, by the laws,
as legitimate, and consistent with natural right. Yet he is not owned as
property. A condemned criminal is "held to labor"--yet he is not owned
as property. The law allows no such straining of the meaning of words
towards the wrong, as that which would convert the words "service or
labor" (of men) into _property in man_--and thus make a man, who serves
or labors for another, the property of that other.
5. "No person held to service or labor, in one state, under the _laws_
thereof."
The "_laws_," here mentioned, and impliedly sanctioned, are, of course,
only _constitutional_ laws--laws, that are consistent, both with the
constitution of the state, and the constitution of the United States.
None others are "_laws_," correctly speaking, however they may attempt
to "hold persons to service or labor," or however they may have the
forms of laws on the statute books.
This word "laws," therefore, being a material word, leaves the whole
question just where it found it--for it certainly does not, _of
itself_--nor indeed does any other part of the clause--say that acts of
a legislature, declaring one man to be the property of another, is a
"_law_" within the meaning of the constitution. As far as the word
"_laws_" says any thing on the subject, it says that such acts are _not_
laws--for such acts are clearly inconsistent with natural law--and it
yet remains to be shown that they are consistent with any constitution
whatever, state or national.
The burden of proof, then, still rests upon the advocates of slavery, to
show that an act of a state legislature, declaring one man to be the
property of another, is a "law," within the meaning of this clause. To
assert simply that it is, without proving it to be so, is a mere begging
of the question--for that is the very point in dispute.
The question, therefore, of the _constitutionality_ of the slave acts
must first be determined, before it can be decided that they are "laws"
within the meaning of the constitution. That is, they must be shown to
be consistent with the constitution, before they can be said to be
sanctioned as "laws" by the constitution. Can any proposition be plainer
than this? And yet the reverse must be assumed, in this case, by the
advocates of slavery.
The simple fact, that an act purports to "hold persons to service or
labor," clearly cannot, _of itself_, make the act constitutional. If it
could, any act, purporting to hold "persons to service or labor," would
necessarily be constitutional, without any regard to the "persons" so
held, or the conditions on which they were held. It would be
constitutional, _solely because it purported to hold persons to service
or labor_. If this were the true doctrine, any of us, without respect of
persons, might be held to service or labor, at the pleasure of the
legislature. And then, if "service or labor" mean slavery, it would
follow that any of us, without discrimination, might be made slaves. And
thus the result would be, that the acts of a legislature would be
constitutional, _solely because they made slaves of the people_.
Certainly this would be a new test of the constitutionality of laws.
All the arguments in favor of slavery, that have heretofore been drawn
from this clause of the constitution, have been founded on the
assumption, that if an act of a legislature did but purport to "hold
persons to service or labor"--no matter how, on what conditions, or for
what cause--that fact alone was sufficient to make the act
constitutional. The entire sum of the argument, in favor of slavery, is
but this, viz. the constitution recognizes the constitutionality of
"laws" that "hold persons to service or labor,"--slave acts "hold
persons to service or labor,"--therefore slave acts must be
constitutional. This profound syllogism is the great pillar of slavery
in this country. It has, (if we are to judge by results,) withstood the
scrutiny of all the legal acumen of this nation for fifty years and
more. If it should continue to withstand it for as many years as it has
already done, it will then be time to propound the following, to wit:
The state constitutions recognize the right of men to acquire property;
theft, robbery, and murder are among the modes in which property may be
acquired; therefore theft, robbery, and murder are recognized by these
constitutions as lawful.
No doubt the clause contemplates that there may be constitutional
"laws," under which persons may be "held to service or labor." But it
does not follow, therefore, that every act, that purports to hold
"persons to service or labor," is constitutional.
We are obliged, then, to determine whether a statute be constitutional,
before we can determine whether the "service or labor" required by it,
is sanctioned by the constitution as being lawfully required. The simple
fact, that the statute would "hold persons to service or labor," is, _of
itself_, no evidence, either for or against its constitutionality.
Whether it be or be not constitutional, may depend upon a variety of
contingencies--such as the kind of service or labor required, and the
conditions on which it requires it. Any service or labor, that is
inconsistent with the duties which the constitution requires of the
people, is of course not sanctioned by this clause of the constitution
as being lawfully required. Neither, of course, is the requirement of
service or labor, _on any conditions, that are inconsistent with any
rights that are secured to the people by the constitution_, sanctioned
by the constitution as lawful. Slave laws, then, can obviously be held
to be sanctioned by this clause of the constitution, only by
gratuitously assuming, 1st, that the constitution neither confers any
rights, nor imposes any duties, upon the people of the United States,
inconsistent with their being made slaves; and, 2d, that it sanctions
the general principle of holding "persons to service or labor"
arbitrarily, without contract, without compensation, and without the
charge of crime. If this be really the kind of constitution that has
been in force since 1789, it is somewhat wonderful that there are so few
slaves in the country. On the other hand, if the constitution be not of
this kind, it is equally wonderful that we have any slaves at all--for
the instrument offers no ground for saying that a colored man may be
made a slave, and a white man not.
Again. Slave acts were not "laws" according to any state constitution
that was in existence at the time the constitution of the United States
was adopted. And if they were not "laws" at that time, they have not
been made so since.
6. The constitution itself, (Art. 1. Sec. 2,) in fixing the basis of
representation, has plainly _denied_ that those described in Art. 4, as
"persons held to service or labor," are slaves,--for it declares that
"persons bound to service for a term of years" shall be "included" in
the "number of _free_ persons." There is no _legal_ difference between
being "bound to service," and being "held to service or labor." The
addition, in the one instance, of the words, "for a term of years," does
not alter the case, for it does not appear that, in the other, they are
"held to service or labor" beyond a fixed term--and, in the absence of
evidence from the constitution itself, the presumption must be that they
are not--because such a presumption makes it unnecessary to go out of
the constitution to find the persons intended, and it is also more
consistent with the prevalent municipal, and with natural law.
And it makes no difference to this result, whether the word "free," in
the first article, be used in the political sense common at that day, or
as the correlative of slavery. In either case, the persons described as
"free," could not be made slaves.
7. The words "service or labor" cannot be made to include slavery,
unless by reversing the legal principle, that the greater includes the
less, and holding that the less includes the greater; that the innocent
includes the criminal; that a sanction of what is right, includes a
sanction of what is wrong.
Another clause relied on as a recognition of the constitutionality of
slavery, is the following, (Art. 1. Sec. 2.):
"Representatives and direct taxes shall be apportioned among the
several states, which may be included within this union, according to
their respective numbers, which shall be determined by adding to the
whole number of _free_ persons, including those bound to service for
a term of years, and excluding Indians not taxed, three-fifths of all
other persons."
The argument claimed from this clause, in support of slavery, rests
entirely upon the word "free," and the words "all other persons." Or
rather it rests entirely upon the meaning of the word "free," for the
application of the words "all other persons" depends upon the meaning
given to the word "free." The slave argument _assumes_, _gratuitously_,
that the word "free" is used as the correlative of slavery and thence it
infers that the words, "all other persons," mean slaves.
It is obvious that the word "free" affords no argument for slavery,
unless a meaning correlative with slavery be _arbitrarily_ given to it,
for the very purpose of _making_ the constitution sanction or recognize
slavery. Now it is very clear that no such meaning can be given to the
word, _for such a purpose_. The ordinary meaning of a word cannot be
thus arbitrarily changed, _for the sake of sanctioning a wrong_. A
choice of meaning would be perfectly allowable, and even obligatory, if
made for the purpose of _avoiding_ any such sanction; but it is entirely
inadmissable for the purpose of giving it. The legal rules of
interpretation, heretofore laid down, imperatively require this
preference of the right, over the wrong, in all cases where a word is
susceptible of different meanings.
The English law had for centuries used the word "free" as describing
persons possessing citizenship, or some other franchise or peculiar
privilege--as distinguished from aliens, and persons not possessed of
such franchise or privilege. This law, and this use of the word "free,"
as has already been shown, had been adopted in this country from its
first settlement. The colonial charters all, (probably without an
exception,) recognized it. The colonial legislation generally, if not
universally, recognized it. The state constitutions, in existence at the
time the constitution of the United States was formed and adopted, used
the word in this sense, and no other. The Articles of Confederation--the
then existing national compact of union--used the word in this sense,
and no other. The sense is an appropriate one in itself; the most
appropriate to, and consistent with the whole character of the
constitution, of any of which the word is susceptible. In fact, it is
the only one that is either appropriate to, or consistent with, the
other parts of the instrument. Why, then, is it not the legal meaning?
Manifestly it _is_ the legal meaning. No reason whatever can be given
against it, except that, if such be its meaning, _the constitution will
not sanction slavery_! A very good reason--a perfectly unanswerable
reason, in fact--in favor of this meaning; but a very futile one against
it.
It is evident that the word "free" is not used as the correlative of
slavery, because "Indians not taxed" are "excluded" from its
application--yet they are not therefore slaves.
Again. The word "free" cannot be presumed to be used as the correlative
of slavery--because slavery then had no _legal_ existence. The word must
obviously be presumed to be used as the correlative of something that
did _legally_ exist, rather than of something that did not legally
exist. If it were used as the correlative of something that did not
legally exist, the words "all other persons" would have no legal
application. Until, then, it be shown that slavery had a legal
existence, authorized either by the United States constitution, or by
the then existing state constitutions--a thing that cannot be shown--the
word "free" certainly cannot be claimed to have been used as its
correlative.
But even if slavery had been authorized by the _state_ constitutions,
the word "free," in the United States constitution, could not have been
claimed to have been used as its correlative, unless it had appeared
that the United States constitution had itself provided or suggested no
correlative of the word "free;" for it would obviously be absurd and
inadmissible to go out of an instrument to find the intended correlative
of one of its own words, when it had itself suggested one. This the
constitution of the United States has done, in the persons of aliens.
The power of naturalization is, by the constitution, taken from the
states, and given exclusively to the United States. The constitution of
the United States, therefore, necessarily supposes the existence of
aliens--and thus furnishes the correlative sought for. It furnishes a
class both for the word "free," and the words "all other persons" to
apply to. And yet the slave argument contends that we must overlook
these distinctions, necessarily growing out of the laws of the United
States, and go out of the constitution of the United States to _find_
persons whom it describes as the "free," and "all other persons." And
what makes the argument the more absurd is, that by going out of the
instrument to the _then existing state constitutions_--the only
instruments to which we can go--we can find there _no other_ persons for
the words to apply to--no other classes answering to the description of
the "free persons" and "all other persons,"--than the very classes
suggested by the United States constitution itself, to wit, citizens and
aliens; (for it has previously been shown that the then existing state
constitutions recognized no such persons as slaves.)
If we are obliged, (as the slave argument claims we are,) to go out of
the constitution of the United States to find the class whom it
describes as "all other persons" than "the free," we shall, for aught I
see, be equally obliged to go out of it to find those whom it describes
as the "free"--for "the free," and "all other persons" than "the free,"
must be presumed to be found described somewhere in the same instrument.
If, then, we are obliged to go out of the constitution to find the
persons described in it as "the free" and "all other persons," we are
obliged to go out of it to ascertain who are the persons on whom it
declares that the representation of the government shall be based, and
on whom, of course, the government is founded. And thus we should have
the absurdity of a constitution that purports to authorize a government,
yet leaves us to go in search of the people who are to be represented in
it. Besides, if we are obliged to go out of the constitution, to find
the persons on whom the government rests, and those persons are
arbitrarily prescribed by some other instrument, independent of the
constitution, this contradiction would follow, viz., that the United
States government would be a subordinate government--a mere appendage to
something else--a tail to some other kite--or rather a tail to a large
number of kites at once--instead of being, as it declares itself to be,
the supreme government--its constitution and laws being the supreme law
of the land.
Again. It certainly cannot be admitted that we must go out of the United
States constitution to find the classes whom it describes as "the free,"
and "all other persons" than "the free," until it be shown that the
constitution has told us where to go to find them. _In all other cases_,
(without an exception, I think,) where the constitution makes any of its
provisions dependent upon the state constitutions, or state
legislatures, it has particularly described them as depending upon them.
But it gives no intimation that it has left it with the state
constitutions, or the state legislatures, to prescribe whom it means by
the terms "free persons" and "all other persons," on whom it requires
its own representation to be based. We have, therefore, no more
authority from the constitution of the United States, for going to the
state constitutions, to find the classes described in the former as the
"free persons" and "all other persons," than we have for going to Turkey
or Japan. We are compelled, therefore, to find them in the constitution
of the United States itself, if any answering to the description can
possibly be found there.
Again. If we were permitted to go to the state constitutions, or to the
state statute books, to find who were the persons intended by the
constitution of the United States; and if, as the slave argument
assumes, it was left to the states respectively to prescribe who should,
and who should not, be "free" within the meaning of the constitution of
the United States, it would follow that the terms "free" and "all other
persons," might be applied in as many different ways, and to as many
different classes of persons, as there were different states in the
union. Not only so, but the application might also be varied at pleasure
in the same state. One inevitable consequence of this state of things
would be, that there could be neither a permanent, nor a uniform basis
of representation throughout the country. Another possible, and even
probable consequence would be, such inextricable confusion, as to the
persons described by the same terms in the different states, that
Congress could not apportion the national representation at all, in the
manner required by the constitution. The questions of law, arising out
of the different uses of the word "free," by the different states, might
be made so endless and inexplicable, that the state governments might
entirely defeat all the power of the general government to make an
apportionment.
If the slave construction be put upon this clause, still another
difficulty, in the way of making an apportionment, would follow, viz.,
that congress could have no _legal_ knowledge of the persons composing
each of the two different classes, on which its representation must be
based; for there is no legal record--known to the laws of the United
States, or even to the laws of the states--of those who are slaves, or
those who are not. The information obtained by the census takers, (who
have no legal records to go to,) must, in the nature of things, be of
the most loose and uncertain character, on such points as these. Any
accurate or _legal_ knowledge on the subject is, therefore, obviously
impossible. But if the other construction be adopted, this difficulty is
avoided--for congress then have the control of the whole matter, and may
adopt such means as may be necessary for ascertaining accurately the
persons who belong to each of these different classes. And by their
naturalization laws they actually do provide for a _legal_ record of all
who are made "free" by naturalization.
And this consideration of certainty, as to the individuals and numbers
belonging to each of these two classes, "free" and "all other persons,"
acquires an increased and irresistible force, when it is considered that
these different classes of persons constitute also different bases for
taxation, as well as representation. The requirement of the constitution
is, that "representatives and _direct taxes_ shall be apportioned," &c.,
according to the number of "free persons" and "all other persons." In
reference to so important a subject as taxation, _accurate_ and _legal_
knowledge of the persons and numbers belonging to the different classes,
becomes indispensable. Yet under the slave construction this legal
knowledge becomes impossible. Under the other construction it is as
perfectly and entirely within the power of congress, as, in the nature
of things, such a subject can be--for naturalization is a legal process;
and legal records, prescribed by congress, may be, and actually are,
preserved of all the persons naturalized or made "free" by their laws.
If we adopt that meaning of the word "free," which is consistent with
freedom--that meaning which is consistent with natural right--the
meaning given to it by the Articles of Confederation, by the then
existing state constitutions, by the colonial charters, and by the
English law ever since our ancestors enjoyed the name of freemen, all
these difficulties, inconsistencies, contradictions and absurdities,
that must otherwise arise, vanish. The word "free" then describes the
native and naturalized citizens of the United States, and the words "all
other persons" describe resident aliens, "Indians not taxed," and
possibly some others. The representation is then placed upon the best,
most just, and most rational basis that the words used can be made to
describe. The representation also becomes equal and uniform throughout
the country. The principle of distinction between the two bases, becomes
also a stable, rational and intelligible one--one too necessarily
growing out of the exercise of one of the powers granted to
congress;--one, too, whose operation could have been foreseen and judged
of by the people who adopted the constitution--instead of one
fluctuating with the ever changing and arbitrary legislation of the
various states, whose mode and motives of action could not have been
anticipated. Adopt this definition of the word "free," and the same
legislature, (that is, the national one,) that is required by the
constitution to apportion the representation according to certain
principles, becomes invested--as it evidently ought to be, and as it
necessarily must be, to be efficient--with the power of determining, by
their own (naturalization) laws, who are the persons composing the
different bases on which its apportionment is to be made; instead of
being, as they otherwise would be, obliged to seek for these persons
through all the statute books of all the different states of the union,
and through all the evidences of private property, under which one of
these classes might be held. Adopt this definition of the word "free,"
and the United States government becomes, so far at least as its popular
representation--which is its most important feature--is concerned, an
independent government, subsisting by its own vigor, and pervaded
throughout by one uniform principle. Reject this definition, and the
popular national representation, loses at once its nationality, and
becomes a mere dependency on the will of local corporations--a mere
shuttlecock to be driven hither and thither by the arbitrary and
conflicting legislation of an indefinite number of separate states.
Adopt this meaning of the word "free," and the national government
becomes capable of knowing its own bases of representation and power,
and its own subjects of taxation. Reject this definition, and the
government knows not whom it represents, or on whom to levy taxes for
its support. Adopt this meaning of the word "free," and some three
millions of native born, but now crushed human beings, become, with
their posterity, men and citizens. Adopt this meaning--this _legal_
meaning--this _only_ meaning that can, in this clause, be _legally_
given to the word "free," and our constitution becomes, instead of a
nefarious compact of conspirators against the rights of man, a
consistent and impartial contract of government between _all_ "the
people of the United States," for securing "to themselves and their
posterity the blessings of liberty" and "justice."
Again. We cannot unnecessarily place upon the constitution a meaning
directly destructive of the government it was designed to establish. By
giving to the word "free" the meaning universally given to it by our
political papers of a similar character up to the time the constitution
was adopted, we give to the government three millions of citizens, ready
to fight and be taxed for its support. By giving to the word "free" a
meaning correlative with slavery, we locate in our midst three millions
of enemies; thus making a difference of six millions, (one third of our
whole number,) in the physical strength of the nation. Certainly a
meaning so suicidal towards the government, cannot be given to any part
of the constitution, except the language be irresistibly explicit; much
less can it be done, (as in this case it would be,) wantonly,
unnecessarily, gratuitously, wickedly, and in violation of all previous
usage.
Again. If we look into the constitution itself for the meaning of the
word "free," we find it to result from the distinction there recognized
between citizens and aliens. If we look into the contemporary state
constitutions, we still find the word "free" to express the political
relation of the individual to the state, and not any property relation
of one individual to another. If we look into the law of nature for the
meaning of the word "free," we find that by that law all mankind are
free. Whether, therefore, we look to the constitution itself, to the
contemporary state constitutions, or to the law of nature, for the
meaning of this word "free," the only meaning we shall find is one
consistent with the personal liberty of all. On the other hand, if we
are resolved to give the word a meaning correlative with slavery, we
must go to the lawless code of the kidnapper to find such a meaning.
Does it need any argument to prove to which of these different codes our
judicial tribunals are bound to go, to find the meaning of the words
used in a constitution, that is established professedly to secure
liberty and justice?
Once more. It is altogether a false, absurd, violent, unnatural and
preposterous proceeding, in construing a political paper, which purports
to establish men's relations to the state, and especially in construing
the clause in it which fixes the basis of representation and taxation,
to give to the words, which describe the persons to be represented and
taxed, and which appropriately indicate those relations of men to the
state which make them proper subjects of taxation and representation--to
give to such words a meaning, which, instead of describing men's
relations to the state, would describe merely a personal or property
relation of one individual to another, which the state has nowhere else
recognized, and which, if admitted to exist, would absolve the persons
described from all allegiance to the state, would deny them all right to
be represented, and discharge them from all liability to be taxed.
But it is unnecessary to follow out this slave argument into all its
ramifications. It sets out with nothing but assumptions, that are
gratuitous, absurd, improbable, irrelevant, contrary to all previous
usage, contrary to natural right, and therefore inadmissible. It
conducts to nothing but contradictions, absurdities, impossibilities,
indiscriminate slavery, anarchy, and the destruction of the very
government which the constitution was designed to establish.
The other clause relied on as a recognition and sanction, both of
slavery and the slave trade, is the following:
"The migration or importation of such persons as any of the states
now existing shall think proper to admit, shall not be prohibited by
the congress prior to the year one thousand eight hundred and eight,
but a tax or duty may be imposed on such importation, not exceeding
ten dollars for each person."--(Art. 1, Sec. 9.)
The slave argument, drawn from this clause, is, that the word
"importation" applies only to property, and that it therefore implies,
in this clause, that the persons to be imported are necessarily to be
imported as property--that is, as slaves.
But the idea that the word "importation" applies only to property, is
erroneous. It applies correctly both to persons and things. The
definition of the verb "import" is simply "to bring from a foreign
country, or jurisdiction, or from another state, into one's own country,
jurisdiction or state."--When we speak of "importing" things, it is true
that we mentally associate with them the idea of property. But that is
simply because _things_ are property, and not because the word "import"
has any control, in that particular, over the character of the things
imported. When we speak of importing "persons," we do not associate with
them the idea of property, simply because "persons" are not property.
We speak daily of the "importation of foreigners into the country;" but
no one infers therefrom that they are brought in as slaves, but as
passengers. A vessel imports, or brings in, five hundred passengers.
Every vessel, or master of a vessel, that "brings in" passengers,
"imports" them. But such passengers are not therefore slaves. A man
imports his wife and children--but they are not therefore his slaves,
or capable of being owned or sold as his property. A man imports a gang
of laborers, to clear lands, cut canals, or construct railroads; but not
therefore to be held as slaves. An innocent meaning must be given to the
word, if it will bear one. Such is the legal rule.
Even the popular understanding of the word "import," when applied to
"persons," does not convey the idea of property. It is only when it is
applied distinctly to "slaves," that any such idea is conveyed; and then
it is the word "slaves," and not the word "import," that suggests the
idea of property. Even slave traders and slave holders attach no such
meaning to the word "import," when it is connected with the word
"persons;" but only when it is connected with the word "slaves."
In the case of Ogden _vs._ Saunders, (12 Wheaton, 332,) Chief Justice
Marshall said, that in construing the constitution, "the intention of
the instrument must prevail; that this intention must be collected from
its words; that its words are to be understood in that sense in which
they are _generally used_ by those for whom the instrument was
intended." On this principle of construction, there is not the least
authority for saying that this provision for "the importation of
persons," authorized the importation of them as slaves. To give it this
meaning, requires the same stretching of words _towards the wrong_, that
is applied, by the advocates of slavery, to the words "service or
labor," and the words "free" and "all other persons."
Another reason, which makes it necessary that this construction should
be placed upon the word "_importation_," is, that the clause contains no
other word that describes the immigration of foreigners. Yet that the
clause related to the immigration of foreigners _generally_, and that it
restrained congress, (up to the year 1808,) from prohibiting the
immigration of foreigners generally, there can be no doubt.
The object, and the only _legal_ object, of the clause was to restrain
congress from so exercising their "power of regulating commerce with
foreign nations, and among the several states, and with the Indian
tribes"--(which power has been decided by the supreme court of the
United States, to include a power over navigation and the transportation
of passengers in boats and vessels[21])--as to obstruct the introduction
of new population into such of the states as were desirous of increasing
their population in that manner. The clause does not imply at all, that
the population, which the states were thus to "admit," was to be a slave
population.
The word "importation," (I repeat,) is the only word in the clause, that
applies to persons that were to _come into_ the country from foreign
nations. The word "_migration_" applies only to those who were to _go
out from_ one of our own states or territories into another.
"_Migration_" is the act of _going out_ from a state or country; and
differs from immigration in this, that immigration is the act of _coming
into_ a state or country. It is obvious, therefore, that the
"_migration_," which congress are here forbidden to prohibit, is simply
the _going out_ of persons from one of our own states or territories
into another--(for that is the only "_migration_" that could come within
the jurisdiction of congress)--and that it has no reference to persons
_coming in_ from foreign countries to our own.
If, then, "migration," as here used, has reference only to persons
_going out_ from one state into another, the word "_importation_" is the
only one in the clause that is applicable to foreigners coming into our
country. This word "importation," then, being the only word that can
apply to persons coming into the country, it must be considered as
substantially synonymous with immigration, and must apply equally to
_all_ "persons," that are "imported," or brought into the country as
passengers. And if it applies equally to all persons, that are brought
in as passengers, it does not _imply_ that any of those persons are
slaves; for no one will pretend that this clause ever authorized the
state governments to treat as slaves _all_ persons that were brought
into the country as passengers. And if it did not authorize them to
treat all such passengers as slaves, it did not authorize them to treat
any of them as such; for it makes no discrimination between the
different "persons" that should be thus imported.
Again. The argument, that the allowance of the "importation" of
"persons," implies the allowance of property in such persons, would
imply a recognition of the validity of the slave laws of other
countries; for unless slaves were obtained by valid purchase
abroad--which purchase implies the existence and validity of foreign
slave laws--the importer certainly could not claim to import his slaves
as property; but he would appear, at the custom-house, as a mere pirate,
claiming to have his captures legalized. So that, _according to the
slave argument_, the simple use of the word "importation," in the
constitution, as applied to "persons," bound our government, not only to
the sanction and toleration of slavery in our own country, but to the
recognition of the validity of the slave laws of other countries.
But farther. The allowance of the "importation" of slaves, as such,
under this clause of the constitution, would imply that congress must
take actual, and even the most critical cognizance of the slave laws of
other countries; and that they should allow neither the mere word of the
person calling himself the owner, nor any thing short of the fullest and
clearest legal proof, according to the laws of those countries, to be
sufficient to enable him to enter his slaves, as property, at the
custom-house; otherwise any masters of vessels, from England or France,
as well as from Africa, might, on their arrival here, claim their
passengers as slaves. Did the constitution, in this clause, by simply
using the word "importation," instead of immigration, intend to throw
upon the national government--at the hazard of making it a party to the
illegal enslavement of human beings--the responsibility of
investigating and deciding upon the legality and credibility of all the
evidence that might be offered by the piratical masters of slave ships,
to prove their valid purchase of, and their right of property in their
human cargoes, according to the slave laws of the countries from which
they should bring them? Such must have been the intention of the
constitution, if it intended, (as it must, if it intended any thing of
this kind,) that the fact of "importation" under the commercial
regulations of congress, should be thereafter a sufficient authority for
holding in slavery the persons imported.