THE CONSTITUTION ACCORDING TO THE COMMON MEANING OF ITS TERMS.
The people made it, the people adopted it, the people must be
supposed to read it with the help of common sense, and cannot be
presumed to admit in it any hidden or extraordinary meaning.
At the time of the adoption of the Constitution, slavery existed in all
the States except Massachusetts. How far, if at all, does this
instrument support or countenance the institution?
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."
By this section, persons are divided into those who are free and those
who are slaves; for to the whole number of _free_ persons are to be
added three-fifths of _all other_ persons, that is, persons not free, or
_slaves_. If we adopt the plain, obvious, and common meaning of the
words as their true meaning, this conclusion is incontrovertible.
It is sometimes urged, that by "free person" is meant "citizen." But the
expression cannot be taken in any such technical sense. Under the
expression "free persons" are included those bound to service for a term
of years, and therefore from it are excluded those bound to service for
life, or slaves.
This article, therefore, recognizes slavery as explicitly as if the word
_slave_ itself had been used, and gives to the free persons in a Slave
State, solely because they are slaveholders, a larger representation,
and consequently greater political power, than the same number of free
persons in a Free State. A BOUNTY ON SLAVEHOLDING!
Art. 1, sec. 9: "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."
It is clear that this section recognizes a difference between the
meaning of _migration_ and _importation_, since, if both words mean the
same thing, no reason whatever can be assigned why a tax is not
permitted in both cases. This difference, whatever it is, must afford a
good reason why persons imported may be taxed, and persons migrating
not. The true meaning of the section seems obvious. A person who
migrates does so of his own accord: he cannot be said to be migrated by
any other person. He is wholly a free agent. A person who is imported
does not import himself, but is imported by some other person. He is
passive. The importer is the free agent; the person imported is not a
free agent. Thus the slave-laws of Virginia of 1748[W] and 1753[X]
begin--"All _persons_ who have been or shall be _imported_," &c. &c.
"_shall be_ accounted and be _slaves_." Whenever we hear an importation
spoken of, we instantly infer an importer, an _owner_, and _property_
imported. This distinction between the meaning of the two words is,
then, real. It affords a good reason for the restriction on the right to
tax. Therefore, we say, it is the true distinction. On our construction,
Congress had power to lay a tax on persons imported as property or
slaves, but had no right to tax free persons migrating.
By this clause, therefore, Congress was prevented, during twenty years,
from prohibiting the foreign slave-trade with any State that pleased to
allow it. But, by Art. 1, sec. 8, Congress had the general power "to
regulate commerce with foreign nations." Consequently, _the slave-trade
was excepted from the operation of the general power, with a view to
place the slave-trade, during twenty years, solely under the control of
the Slave States_. It could not be wholly stopped, so long as one State
wished to continue it. It is a clear compromise in favor of slavery.
True, the compromise was a temporary one; but it will be noticed, that
Congress, even after 1808, was not obliged to prohibit the trade; and,
in point of fact, until 1819 the laws of Congress authorized the States
to sell into slavery, for their own benefit, negroes imported contrary
to the laws of the United States! (Act Congr. 1807, c. 77, Sec. 4, 6; 1818,
c. 86, Sec. 5 and 7; 10 Wheat. Rep. 321, 322.) So unmixed should be our
satisfaction at the oft-repeated boast, that ours was the first nation
to prohibit the African slave-trade!
Art. 4, sec. 2: "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."
The time of holding not being limited, the expression here used must
include not only persons held to service or labor for a term of years,
but also those held to service or labor for life. Consequently, it
includes those who are free persons within the meaning of Art. 1, sec.
2, and slaves or persons held to service or labor for life.
That the expression "person held to service or labor" was a correct
definition of the condition of a slave, at the time the Constitution was
adopted, is evident. The sixth article of the North-western ordinance
reads thus: "There shall be neither slavery nor involuntary servitude in
the said territory, otherwise than in the punishment of crimes, whereof
the party shall have been duly convicted; provided always, that, any
person escaping into the same, from whom labor or service is lawfully
claimed in any one of the original States, such fugitive may be
lawfully reclaimed, and conveyed to the person claiming his or her labor
or service as aforesaid." In other words, the expression "a person from
whom labor or service is lawfully claimed" so correctly described the
condition of a slave, that Congress deemed it necessary to except such
persons from the operation of an article relating only to slaves. In
less than three months after the passage of this ordinance, this clause
in the Constitution was drafted. It needs no argument to show, that the
expression in the Constitution means the same as that in the ordinance.
"A person from whom labor or service is lawfully claimed in any one of
the original States" means the same as "a person held to service or
labor in one State under the laws thereof." If the former correctly
described the condition of a slave, the latter did also.
We can, however, see that the expression does properly describe the
legal condition of a slave. A slave, though an article of property, has
always and in every State been recognized as a person, by being held
criminally responsible for his acts. Thus the preamble to the Act of
South Carolina (May 10, 1740; 1 Grimke's Laws, 165), which provides for
the trial of _slaves_, recites that "natural justice forbids that any
_person_, of what condition soever, should be condemned unheard;" and
the Act of Georgia of 1770 (Prince's Dig. 777) provides for the trial of
"slaves and _other persons_." The Act of Virginia (1748, sec. 15; 5 Hen.
Stat. 547) and North Carolina (1741, sec. 29; Iredell, Stat. 62-66) call
runaway slaves _persons_ in so many words. Similar laws might be cited,
if deemed necessary. A slave is also held to labor and service for life
by law. Labor and service are the lot of every slave. "To slave" means
"to toil." It is sometimes denied, but nevertheless it is true, that the
law recognizes that labor and service are legally due from the slave to
his master. Thus the Act of North Carolina (1741, sec. 27), before
quoted, makes it a criminal offence to tempt or persuade a slave to
leave his master's "service." "Service" is recognized as being legally
due from a slave in Virginia (Act 1691, 3 Hen. Stat. 86, 87). The
Provincial Assembly of South Carolina (Act 1740, sec. 44) provided
that,--
"If any owner of slaves, or other person who shall have the care,
management, or overseeing of any slaves, shall work, or put any such
slave or slaves to labor, more than fifteen hours in twenty-four
hours, from the twenty-fifth day of March to the twenty-fifth day of
September, or more than fourteen hours in twenty-four hours, from
the twenty-fifth day of September to the twenty-fifth day of March,
every such person shall forfeit any sum not exceeding twenty pounds,
nor under five pounds, current money for every time he, she, or they
shall offend herein, at the discretion of the justice before whom
the complaint shall be made."
The Provincial Assembly of Georgia (Act 1770, May 10, sec. 41) provided
that,--
"If any person shall, on the Lord's day, commonly called Sunday,
employ any slave in any work or labor (works of absolute necessity
and the necessary occasions of the family only excepted), every
person so offending shall forfeit and pay the sum of ten shillings
for every slave he, she, or they shall so cause to work or labor."
A similar law was passed in South Carolina (Act 1740, sec. 22). These
and similar laws, by limiting the hours of daily work and labor, or by
providing that work and labor shall not be demanded of a slave on
Sunday, recognize that on other days, and within certain hours, a master
may legally demand them. That which may be legally demanded is legally
due. Therefore, work and labor, or service, are legally due from the
slave to his master. To this labor and service the slave is "held" by
the law. If he refuses to work, his master may coerce him. If he runs
away, his master may pursue and retake him legally. He is "held for
life," or until emancipated according to law. Consequently, the
expression in the Constitution correctly describes the condition of a
slave. Indeed, it more correctly describes this condition than "chattel
personal" would, because it is the almost universal practice to treat a
slave in many important particulars, such as dower, &c. like real
property; and, in some States, slaves are declared by statute to be
real estate.
By this section, therefore, it is provided that no person held as a
slave in one State under the laws thereof, escaping into another, shall,
in consequence of any law or regulation therein, be discharged from his
slavery, but shall be delivered up on claim of his owner. The laws of
one State, whether they support slavery or any other institution, have
no power in another State. Consequently, if a slave escapes into a Free
State, he becomes free. This is the general rule of law. In virtue of
it, thousands of slaves are now free on the soil of Canada. In virtue of
it, a fugitive slave from South Carolina would be free in this State,
were it not for this section in the Constitution. But this section
declares that he shall not thereby become free, but shall be delivered
up. Again, _the Constitution makes an exception from a general rule of
law in favor of slavery_. It gives to slaveholders, and slave-laws, a
power which the general rule of law does not give. It enables a South
Carolina slaveholder to drag from the soil of Massachusetts a person
whom the general rule of law pronounces free, solely because South
Carolina laws declare the contrary. It makes the whole Union a vast
hunting-ground for slaves! There is not a single spot from the Atlantic
to the Pacific, from the St. John's to the Rio del Norte, or
"wheresoe'er may be the fleeting boundary of this republic," on which a
fugitive slave may rest, and his owner may not, in virtue of this
clause, claim and retake him as his slave!
Art. 1, sec. 8: "Congress shall have power ... to provide for
calling forth the militia ... _to suppress insurrections_."
Art. 4, sec. 4: "The United States shall guarantee to every State in
this Union a republican form of government, and shall protect each
of them against invasion; and, on application of the legislature or
of the executive (when the legislature cannot be convened), against
_domestic violence_."
_All_ insurrections and _all_ cases of domestic violence are here
provided for. To constitute an insurrection within the meaning of the
Constitution, there must be a rising against those laws which are
recognized as such by the Constitution; and, to make out a case of
domestic violence, the violence must be exerted against that right or
power which is recognized by the Constitution as lawful. But, by Art. 4,
sec. 2, the Constitution admits that some persons are legally slaves;
else the clause itself must be entirely inoperative. Consequently, if
these persons rise in rebellion, or commit acts of violence contrary to
the laws which hold them in slavery, their rising constitutes an
insurrection; such acts are acts of violence within the meaning of the
Constitution, and consequently must be suppressed by the national power.
And what insurrections were more likely to happen and more to be dreaded
than slave-insurrections, and therefore more likely to have been
provided for?
Slave-owners are not the only slaveholders. All persons who voluntarily
assist or pledge themselves to assist in holding persons in slavery are
slaveholders. _In sober truth, then, we are a nation of slaveholders!_
for we have bound our whole national strength to the slave-owners, to
aid them, if necessary, in holding their slaves in subjection!