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.]