CHAPTER IX.

THE INTENTIONS OF THE CONVENTION.

The intentions of the framers of the constitution, (if we could have, as

we cannot, any _legal_ knowledge of them, except from the words of the

constitution,) have nothing to do with fixing the legal meaning of the

constitution. That convention were not delegated to adopt or establish a

constitution; but only to consult, devise and recommend. The instrument,

when it came from their hands, was a mere proposal, having no legal

force or authority. It finally derived all its validity and obligation,

as a frame of government, from its adoption by the people at large.[27]

Of course the intentions of the people at large are the only ones, that

are of any importance to be regarded in determining the legal meaning of

the instrument. And their intentions are to be gathered entirely from

the words, which they adopted to express them. And their intentions must

be presumed to be just what, and only what the words of the instrument

_legally_ express. In adopting the constitution, the people acted as

legislators, in the highest sense in which that word can be applied to

human lawgivers. They were establishing a law that was to govern both

themselves and their government. And their intentions, like those of

other legislators, are to be gathered from the words of their

enactments. Such is the dictate of both law and common sense.[28] The

instrument had been reported by their committee, the convention. But the

people did not ask this committee what was the legal meaning of the

instrument reported. They adopted it, judging for themselves of its

legal meaning, as any other legislative body would have done. The people

at large had not even an opportunity of consultation with the members of

the convention, to ascertain their opinions. And even if they had

consulted them, they would not have been bound at all by their opinions.

But being unable to consult them, they were compelled to adopt or reject

the instrument, on their own judgment of its meaning, without any

reference to the opinions of the convention. The instrument, therefore,

is now to be regarded as expressing the intentions of the people at

large; and not the intentions of the convention, if the convention had

any intentions differing from the meaning which the law gives to the

words of the instrument.

But why do the partizans of slavery resort to the debates of the

convention for evidence that the constitution sanctions slavery? Plainly

for no other reason than because the words of the instrument do not

sanction it. But can the intentions of that convention, attested only by

a mere skeleton of its debates, and not by any impress upon the

instrument itself, add any thing to the words, or to the legal meaning

of the words of the constitution? Plainly not. Their intentions are of

no more consequence, in a legal point of view, than the intentions of

any other equal number of the then voters of the country. Besides, as

members of the convention, they were not even parties to the instrument;

and no evidence of their intentions, at _that_ time, is applicable to

the case. They became parties to it only by joining with the rest of the

people in its subsequent adoption; and they themselves, equally with

the rest of the people, must then be presumed to have adopted its legal

meaning, and that alone--notwithstanding any thing they may have

previously said. What absurdity then is it to set up the opinions

expressed in the convention, and by a few only of its members, in

opposition to the opinions expressed by the whole people of the country,

in the constitution itself.

But notwithstanding the opinions expressed in the convention by some of

the members, we are bound, as a matter of law, to presume that the

convention itself, in the aggregate, had no intention of sanctioning

slavery--and why? Because, after all their debates, they agreed upon an

instrument that did not sanction it. This was confessedly the result in

which all their debates terminated. This instrument is also the _only_

authentic evidence of their intentions. It is subsequent in its date to

all the other evidence. It comes to us, also, as none of the other

evidence does, _signed with their own hands_. And is this to be set

aside, and the constitution itself to be impeached and destroyed, and

free government overturned, on the authority of a few meagre snatches of

argument, intent or opinion, uttered by a few only of the members;

jotted down by one of them, (Mr. Madison,) merely for his own

convenience, or from the suggestions of his own mind; and only reported

to us fifty years afterwards by a posthumous publication of his papers?

If any thing could excite the utter contempt of the people of this

nation for the miserable subterfuges, to which the advocates of slavery

resort, it would seem that their offering such evidence as this in

support of their cause, must do it. And yet these, and such as these

mere fragments of evidence, all utterly inadmissible and worthless in

their kind, for any legal purpose, constitute the warp and the woof, the

very _sine qua non_ of the whole argument for slavery.

Did Mr. Madison, when he took his oath of office, as president of the

United States, swear to support these scraps of debate, which he had

filed away among his private papers?--Or did he swear to support that

written instrument, which the people of the country had agreed to, and

which was known to them, and to all the world, as the constitution of

the United States.[29]

But even if the unexpressed intentions, which these notes of debate

ascribe to certain members, had been participated in by the whole

convention, we should have had no right to hold the people of the

country at large responsible for them. _This convention sat with closed

doors_, and it was not until near fifty years after the people had

adopted the constitution itself, that these private intentions of the

framers authentically transpired. And even now all the evidence

disclosed implicates, _directly and absolutely_, but few of the

members--not even all from the slaveholding states. The intentions of

all the rest, we have a right to presume, concurred with their votes and

the words of the instrument; and they had therefore no occasion to

express contrary ones in debate.

But suppose that _all_ the members of the convention had participated in

these intentions--what then? Any forty or fifty men, like those who

framed the constitution, may now secretly concoct another, that is

honest in its terms, and yet in secret conclave confess to each other

the criminal objects they intend to accomplish by it, if its honest

character should enable them to secure for it the adoption of the

people.--But if the people should adopt such constitution, would they

thereby adopt any of the criminal and secret purposes of its authors? Or

if the guilty confessions of these conspirators should be revealed fifty

years afterwards, would judicial tribunals look to them as giving the

government any authority for violating the legal meaning of the words of

such constitution, and for so construing them as to subserve the

criminal and shameless purposes of its originators?

The members of the convention, as such, were the mere scriveners of the

constitution; and their individual purposes, opinions or expressions,

then uttered in secret cabal, though now revealed, can no more be

evidence of the intentions of the people who adopted the constitution,

than the secret opinions or expressions of the scriveners of any other

contract can be offered to prove the intentions of the true parties to

such contract. As framers of the constitution, the members of the

convention gave to it no validity, meaning, or legal force. They simply

drafted it, and offered it, such as it legally might be, to the people

for their adoption or rejection. The people, therefore, in adopting it,

had no reference whatever to the opinions of the convention. They had no

authentic evidence of what those opinions were. They looked simply at

the instrument. And they adopted even its legal meaning by a bare

majority. If the instrument had contained any tangible sanction of

slavery, the people would sooner have had it burned by the hands of the

common hangman, than they would have adopted it, and thus sold

themselves as pimps to slavery, covered as they were with the scars they

had received in fighting the battles of freedom. And the members of the

convention knew that such was the feeling of a large portion of the

people; and for that reason, if for no other, they dared insert in the

instrument no legal sanction of slavery. They chose rather to trust to

their craft and influence to corrupt the government, (of which they

themselves expected to be important members,) after the constitution

should have been adopted, rather than ask the necessary authority

directly from the people. And the success they have had in corrupting

the government, proves that they judged rightly in presuming that the

government would be more flexible than the people.

For other reasons, too, the people should not be charged with designing

to sanction any of the secret intentions of the convention. When the

states sent delegates to the convention, no avowal was made of any

intention to give any national sanction to slavery. The articles of

confederation had given none; the then existing state constitutions gave

none; and it could not have been reasonably anticipated by the people

that any would have been either asked for or granted in the new

constitution. If such a purpose had been avowed by those who were at the

bottom of the movement, the convention would doubtless never have been

held. The avowed objects of the convention were of a totally different

character. Commercial, industrial and defensive motives were the

prominent ones avowed. When, then, the constitution came from the hands

of such a convention, unstained with any legal or tangible sanction of

slavery, were the people--who, from the nature of the case, could not

assemble to draft one for themselves--bound either to discard it, or

hold themselves responsible for all the secret intentions of those who

had drafted it? Had they no power to adopt its legal meaning, and that

alone! Unquestionably they had the power; and, as matter of law, as well

as fact, it is equally unquestionable that they exercised it. Nothing

else than the constitution, as a legal instrument, was offered to them

for their adoption. Nothing else was legally before them that they could

adopt. Nothing else, therefore, did they adopt.

This alleged design, on the part of the convention, to sanction slavery,

is obviously of no consequence whatever, unless it can be transferred to

the people who adopted the constitution. Has any such transfer ever been

shown? Nothing of the kind. It may have been known among politicians;

and may have found its way into some of the state conventions. But there

probably is not a little of evidence in existence, that it was generally

known among the mass of the people. And, in the nature of things, it was

nearly impossible that it should have been known by them. The national

convention had sat with closed doors. Nothing was known of their

discussions, except what was personally reported by the members. Even

the discussions in the _state_ conventions could not have been known to

the people at large; certainly not until after the constitution had been

ratified by those conventions. The ratification of the instrument, by

those conventions, followed close on the heels of their

discussions.--The population meanwhile was thinly scattered over the

country. The public papers were few, and small, and far between. They

could not even make such reports of the discussions of public bodies, as

newspapers now do. The consequence must have been that the people at

large knew nothing of the intentions of the framers of the constitution,

but from its words, until after it was adopted. Nevertheless, it is to

be constantly borne in mind, that even if the people had been fully

cognizant of those intentions, they would not therefore have adopted

them, or become at all responsible for them, so long as the intentions

themselves were not incorporated in the instrument. Many selfish,

ambitious and criminal purposes, not expressed in the constitution, were

undoubtedly intended to be accomplished by one and another of the

thousands of unprincipled politicians, that would naturally swarm around

the birth-place, and assist at the nativity of a new and splendid

government. But the people are not therefore responsible for those

purposes; nor are those purposes, therefore, a part of the constitution;

nor is its language to be construed with any view to aid their

accomplishment.

But even if the people intended to sanction slavery by adopting the

intentions of the convention, it is obvious that they, like the

convention, intended to use no language that should legally convey that

meaning, or that should necessarily convict them of that intention in

the eyes of the world.--They, at least, had enough of virtuous shame to

induce them to conceal this intention under the cover of language, whose

legal meaning would enable them always to aver,

"Thou canst not say I did it."

The intention, therefore, that the judiciary should construe certain

language into an authority for slavery, when such is not the legal

meaning of the language itself, cannot be ascribed to the people, except

upon the supposition that the people presumed their judicial tribunals

would have so much less of shame than they themselves, as to _volunteer_

to carry out these their secret wishes, by going beyond the words of the

constitution they should be sworn to support, and violating all legal

rules of construction, and all the free principles of the instrument. It

is true that the judiciary, (whether the people intended it or not,)

have proved themselves to be thus much, at least, more shameless than

the people, or the convention. Yet that is not what ought to have been

expected of judicial tribunals. And whether such were really the

intention of the convention, or the people, is, at least a matter of

conjecture and history, and not of law, nor of any evidence cognizable

by any judicial tribunal.

Why should we search at all for the intentions, either of the

convention, or of the people, beyond the words which both the convention

and the people have agreed upon to express them? What is the object of

written constitutions, and written statutes, and written contracts? Is

it not that the meaning of those who make them may be known with the

most absolute precision of which language is capable? Is it not to get

rid of all the fraud, and uncertainty, and disagreements of oral

testimony? Where would be our constitution, if, instead of its being a

written instrument, it had been merely agreed upon orally by the members

of the convention? And by them only orally reported to the people? And

only this oral report of it had been adopted by the people? And all our

evidence of what it really was, had rested upon reports of what Mr. A,

and Mr. B, members of the convention, had been heard to say? Or upon Mr.

Madison's notes of the debates of the convention? Or upon the oral

reports made by the several members to their respective constituents, or

to the respective state conventions? Or upon flying reports of the

opinions which a few individuals, out of the whole body of the people,

had formed of it when they adopted it? No two of the members of the

convention would probably have agreed in their representations of what

the constitution really was. No two of the people would have agreed in

their understanding of the constitution when they adopted it. And the

consequence would have been that we should really have had no

constitution at all. Yet there is as much ground, both in reason and in

law, for thus throwing aside the _whole_ of the written instrument, and

trusting entirely to these other sources for evidence of what any part

of the constitution really is, as there is for throwing aside those

particular portions of the written instrument, which bear on slavery,

and attempting to supply their place from such evidence as these other

sources may chance to furnish. And yet, to throw aside the written

instrument, so far as its provisions are prohibitory of slavery, and

make a new constitution on that point, out of other testimony, is the

only means, confessedly the only means, by which slavery can be made

constitutional.

And what is the object of resorting to these flying reports for

evidence, on which to change the meaning of the constitution? Is it to

change the instrument from a dishonest to an honest one? from an unjust

to a just one? No. But directly the reverse--and solely that dishonesty

and injustice may be carried into effect. A purpose, for which no

evidence of any kind whatever could be admitted in a court of justice.

Again. If the principle be admitted, that the meaning of the

constitution can be changed, on proof being made that the scriveners or

framers of it had secret and knavish intentions, which do not appear on

the face of the instrument, then perfect license is given to the

scriveners of constitutions to contrive any secret scheme of villainy

they may please, and impose it upon the people as a system of

government, under cover of a written instrument that is so plainly

honest and just in its terms, that the people readily agree to it. Is

such a principle to be admitted in a country where the people claim the

prerogative of establishing their own government, and deny the right of

any body to impose a government upon them, either by force, or fraud, or

against their will?

Finally. The constitution is a contract; a written contract, consisting

of a certain number of precise words, to which, and to which only, all

the parties to it have, in theory, agreed. Manifestly neither this

contract, nor the meaning of its words, can be changed, without the

consent of all the parties to it. Nor can it be changed on a

representation, to be made by any number of them less than the whole,

that they intended any thing different from what they have said. To

change it, on the representation of a part, without the consent of the

rest, would be a breach of contract as to all the rest. And to change

its _legal meaning_, without their consent, would be as much a breach of

the contract as to change its words. If there were a single honest man

in the nation, who assented, in good faith, to the honest and legal

meaning of the constitution, it would be unjust and unlawful to change

the meaning of the instrument so as to sanction slavery, even though

every other man in the nation should testify that, in agreeing to the

constitution, he intended that slavery should be sanctioned. If there

were _not_ a single honest man in the nation, who adopted the

constitution in good faith, and with the intent that its legal meaning

should be carried into effect, its legal meaning would nevertheless

remain the same; for no judicial tribunal could lawfully allow the

parties to it to come into court and allege their dishonest intentions,

and claim that they be substituted for the legal meaning of the words of

the instrument.

[Footnote 27: The Supreme Court say, "The instrument, when it came from

their hands, (that is, the hands of the convention,) was a mere

proposal, without obligation or pretension to it." "The people were at

perfect liberty to accept or reject it; and their act was

final."--_M'Cullock_ vs. _Maryland_,--4 _Wheaton_ 403-4.]

[Footnote 28: The Supreme Court of the United States say:

"The intention of the instrument must prevail: _this intention must be

collected from its words_."--_Ogden_ vs. _Saunders_,--12 _Wheaton_, 332.

"The intention of the legislature is to be searched for in the words

which the legislature has employed to convey it."--_Schr. Paulina's

Cargo_ vs. _United States_,--7 _Cranch_, 60.]

[Footnote 29: "Elliot's Debates," so often referred to, are, if

possible, a more miserable authority than Mr. Madison's notes. He seems

to have picked up the most of them from the newspapers of the day, in

which they were reported by nobody now probably knows whom. In his

preface to his first volume, containing the debates in the Massachusetts

and New York conventions, he says:

"In the compilation of this volume, care has been taken to search into

contemporary publications, in order to make the work as perfect as

possible; still, however, the editor is sensible, from the daily

experience of newspaper reports, of the present time, that the

sentiments they contain may, in some instances, have been inaccurately

taken down, and in others, probably too faintly sketched, fully to

gratify the inquisitive politician." He also speaks of them as "rescued

from the ephemeral prints of that day, and now, for the first time,

presented in a uniform and durable form."

In the preface to his second volume, which is devoted to the Virginia

convention, he says the debates were reported by an able stenographer,

David Robertson; and then quotes the following from Mr. Wirt, in a note

to the life of Patrick Henry:

"From the skill and ability of the reporter, there can be no doubt that

the substance of the debates, as well as their general course, are

accurately preserved."

In his preface to the third volume, embracing the North Carolina and

Pennsylvania conventions, he says:

"The _first_ of the two North Carolina conventions is contained in this

volume; the _second_ convention, it is believed, _was neither

systematically reported nor printed_." "The debates in the Pennsylvania

convention, that have been preserved, it appears, _are on one side

only_; a search into the contemporary publications of the day, has been

unsuccessful to furnish us with the other side of the question."

In his preface to the fourth volume, he says:

"In compiling the opinions, on constitutional questions, delivered in

congress, by some of the most enlightened senators and representatives,

the files of the New York and Philadelphia newspapers, from 1789 to

1800, had to be relied on; from the latter period to the present, the

National Intelligencer is the authority consulted for the desired

information."

It is from such stuff as this, collected and published thirty-five and

forty years after the constitution was adopted--stuff very suitable for

constitutional dreams to be made of--that our courts and people now make

their constitutional law, in preference to adopting the law of the

constitution itself. In this way they manufacture law strong enough to

bind three millions of men in slavery.]

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