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THE 



(ft i Jtnr*. f-< Qi 



UNCONSTITUTIONALITY 


OF 


y 

SLAVERY. 



sc. 

Z Q-(o 
S 76*/u 


*) 



Entered according to Act of Congress, in the year 1845, by Lysander Spooner, 
in the Clerk's Office of the District Court of Massachusetts. 


Dow & Jackson's Anti-Slavery Press. 


CONTENTS 


CHAPTER I.— WHAT IS LAW ? page 5 

« II.— WRITTEN CONSTITUTIONS, 18 

/ 

“ III.— THE COLONIAL CHARTERS, 24 

" IV.— COLONIAL STATUTES, 36 

“ V.— THE DECLARATION OF INDEPENDENCE, ... 42 

“ VI.— THE STATE CONSTITUTIONS OF 1789. 

(Meaning or the word “Free,”) - - 46 

“ VII.— THE ARTICLES OF CONFEDERATION, - 61 

“ VIII.— THE CONSTITUTION OF THE UNITED STATES, - 65 

“ IX.— THE INTENTIONS OF THE CONVENTION, - - - 135 

“ X.— THE PRACTICE OF THE GOVERNMENT, - 145 

“ XI.— THE UNDERSTANDING OF THE PEOPLE, - - - 147 

“ XII.— THE STATE CONSTITUTIONS OF 1845, - - - 150 

" XIII.— THE CHILDREN OF SLAVES ARE BORN FREE, - 153 




Errata. — Page 52, 4th line from bottom, for u fam ” read farm. Page 130, 10th 
Jine from top, for tl confirm,” read corform . 



THE 


UNCONSTITUTIONALITY OF SLAVERY. 


CHAPTER I. 

WHAT IS LAW? 

Before examining the language of the Constitution, in regard 
to Slavery, let us obtain a view of the principles, by virtue of 
which law arises out of those constitutions and compacts, by 
which people agree to establish government. 

To do this it is necessary to define the term law. Popular 
opinions are very loose and indefinite, both as to the true 
definition of law, and also as to the principle, by virtue of 
which law results from the compacts or contracts of mankind 
with each other. 

What then is Law ? That law, I mean, which, and which 
only, judicial tribunals are morally bound, under all circum- 
stances, to declare and sustain ? 

In answering this question, I shall attempt to show that 
law is an intelligible principle of right., necessarily resulting 
from the nature of man ; and not an arbitrary rule, that can 
be established by mere will, numbers or power. 

To determine whether this proposition be correct, we must 
look at the general signification of the term law. 

The true and general meaning of it, is that natural, per- 
manent, unalterable principle, which governs any particular 
thing or class of things. The principle is strictly a natural 
one ; and the term applies to every natural principle, whether 
1 



6 


THE UNCONSTITUTIONALITY OF SLAVERY. 


mental, moral or physical. Thus we speak of the laws of 
mind ; meaning thereby those natural, universal and neces- 
sary principles, according to which mind acts, or by which it 
is governed. We speak too of the moral law ; which is 
merely an universal principle of moral obligation, that arises 
out of the nature of men, and their relations to each other, 
and to other things — and is consequently as unalterable as the 
nature of men. And it is solely because it is unalterable in 
its nature, and universal in its application, that it is denom- 
inated law. If it were changeable, partial or arbitrary, it would 
be no law. Thus we speak of physical laws ; of the laws, for 
instance, that govern the solar system ; of the laws of mo- 
tion, the laws of gravitation, the laws of light, &c., (fee. — 
Also the laws that govern the vegetable and animal kingdoms, 
in all their various departments : among which laws may be 
named, for example, the one that like produces like. Un- 
less the operation of this principle were uniform, universal 
and necessary, it would be no law. 

Law, then, applied to any object or thing whatever, signi- 
fies a natural, unalterable, universal principle, governing such 
object or thing. Any rule, not existing in the nature of 
things, or that is not permanent, universal and inflexible in 
its application, is no law, according to any correct definition 
of the term law. 

. What, then, is that natural, universal, impartial and inflex- 
ible principle, which, under all circumstances, necessarily 
fixes, determines, defines and governs the civil rights of men ? 
Those rights of person, property, &c., which one human be- 
ing has, as against other human beings ? 

I shall define it to be simply the rule, principle, obligation 
or requirement of natural justice. 

This rule, principle, obligation or requirement of natural 
justice, has its origin in the natural rights of individuals, re- 
sults necessarily from them, keeps them ever in view as its 
end and purpose, secures their enjoyment, and forbids their 
violation. It also secures all those acquisitions of property, 


WHAT IS LAW ? 


7 


privilege and claim, which men have a natural right to make 
by labor and contract. 

Such is the true meaning of the term law, as applied to the 
civil rights of men. And I doubt if any other definition of 
law can be given, that will prove correct in every, or neces- 
sarily in any possible case. The very idea of law originates 
in men’s natural rights. There is no other standard, than 
natural rights, by which civil law can be measured. Law has 
always been the name of that rule or principle of justice, 
which protects those rights. Thus we speak of natural law. 
Natural law, in fact, constitutes the great body of the law 
that is professedly administered by judicial tribunals : and it 
always necessarily must be — for it is impossible to anticipate 
a thousandth part of the cases that arise, so as to enact a 
special law for them. Wherever the cases have not been 
thus anticipated, the natural law prevails. We thus political- 
ly and judicially recognize the principle of law as originating 
in the nature and rights of men. By recognizing it as origin- 
ating in the nature of men, we recognize it as a principle, 
that is necessarily as immutable, and as indestructible as the 
nature of man. We also, in the same way, recognize the 
impartiality and universality of its application. 

If, then, law be a natural principle — one necessarily result- 
ing from the very nature of man, and capable of being de- 
stroyed or changed only by destroying or changing the nature 
of man — it necessarily follows that it must be of higher and 
more inflexible obligation than any other rule of conduct, 
which the arbitrary will of any man, or combination of men, 
may attempt to establish. Certainly no rule can be of such 
high, universal and inflexible obligation, as that, which, if ob- 
served, secures the rights, the safety and liberty of all. 

Natural law, then, is the paramount law. And, being the 
paramount law, it is necessarily the only law : for, being ap- 
plicable to every possible case that can arise touching the 
rights of men, any other principle or rule, that should arbi- 
trarily be applied to those rights, would necessarily conflict 



8 


THE UNCONSTITUTIONALITY OF SLAVERY. 


with it. And, as a merely arbitrary, partial and temporary 
rule must, of necessity, be of less obligation than a natural, 
permanent, equal and universal one, the arbitrary one be- 
comes, in reality, of no obligation at all, when the two come 
in collision. Consequently there is, and can be, correctly 
speaking, no law but natural law. There is no other prin- 
ciple or rule, applicable to the rights of men, that is obliga- 
tory in comparison with this, in any case whatever. And this 
natural law is no other than that rule of natural justice, which 
results either directly from men’s natural rights, or from such 
acquisitions as they have a natural right to make, or from 
such contracts as they have a natural right to enter into. 

Natural law recognizes the validity of all contracts which 
men have a natural right to make, and which justice requires 
to be fulfilled : such, for example, as contracts that render 
equivalent for equivalent, and are at the same time consistent 
with morality, the natural rights of men, and those rights of 
property, privilege, &c., which men have a natural right to 
acquire by labor and contract. 

Natural law, therefore, inasmuch as it recognizes the natu- 
ral right of men to enter into obligatory contracts, permits the 
formation of government, founded on contract, as all our 
governments profess to be. But in order that the contract of 
government may be valid and lawful, it must purport to au- 
thorize nothing inconsistent with natural justice, and men’s 
natural rights. It cannot lawfully authorize government to 
destroy or take from men their natural rights : for natural 
rights are inalienable, and can no more be surrendered to 
government — which is but an association of individuals — than 
to a single individual. They are a necessary attribute of 
man’s nature ; and he can no more part with them — to gov- 
ernment or any body else — than with his nature itself. But 
the contract of government may lawfully authorize the adop- 
tion of means — not inconsistent with natural justice — for the 
better protection of men’s natural rights. And this is the le- 
gitimate and true object of government. And rules and stat- 



WHAT IS LAW? 


9 


utes, not inconsistent with natural justice and men’s natural 
rights, if enacted by such government, are binding, on the 
ground of contract, upon those who are parties to the con- 
tract, which creates the government, and authorizes it to pass 
rules and statutes to carry out its objects.* 

But natural law tries the contract of government, and de- 
clares it lawful or unlawful, obligatory or invalid, by the same 
rules by which it tries all other contracts between man and 
man. A contract for the establishment of government, be- 
ing nothing but a voluntary contract between individuals for 
their mutual benefit, differs, in nothing that is essential to its 
validity, from any other contract between man and man, or 
between nation and nation. If two individuals enter into a 
contract to commit trespass, theft, robbery or murder upon a 
third, the contract is unlawful and void, simply because it is a 
contract to violate natural justice, or men’s natural rights. If 
two nations enter into a treaty, that they will unite in plun- 
dering, enslaving or destroying a third, the treaty is unlawful, 
void, and of no obligation, simply because it is contrary to 
justice and men’s natural rights. On the same principle, if 
the majority, however large, of the people of a country, en- 
ter into a contract of government, called a constitution, by 
which they agree to aid, abet or accomplish any kind of in- 
justice, or to destroy or invade the natural rights of any per- 
son or persons whatsoever, whether such persons be parties to 
the compact or not, this contract of government is unlawful 


*It is obvious that legislation can have, in this country, no higher or other authority, 
than that which results from natural law, and the obligation of contracts : for our 
constitutions are but contracts, and the legislation they authorize can of course have 
no other or higher authority than the constitutions themselves. The stream cannot 
rise higher than the fountain. The idea, therefore, of any inherent authority or sove- 
reignty in our governments, as governments, or of any inherent right in the major- 
ity to restrain individuals, by arbitrary enactments, from the exercise of any of their 
natural rights, is as sheer an imposture as the idea of the divine right of kings to 
reign, or any other of the doctrines on which arbitrary governments have been found- 
ed. And the idea of any necessary or inherent authority in legislation, as such, is, 
of course, equally an imposture. If legislation be consistent with natural justice, 
and the natural or intrinsic obligation of the contract of government, it is obligato- 
ry : if not, not. 


1* 



10 


THE UNCONSTITUTIONALITY OF SLAVERY. 


and void — and for the same reason that a treaty between two 
nations for a similar purpose, or a contract of the same nature 
between two individuals, is unlawful and void. Such a con- 
tract of government has no moral sanction. It confers no 
rightful authority upon those appointed to administer it. It 
confers no legal or moral rights, and imposes no legal or mor- 
al obligation upon the people who are parties to it. The only 
duties, which any one can owe to it, or to the government es- 
tablished under color of its authority, are disobedience, resist- 
ance, destruction. 

Judicial tribunals, sitting under the authority of this un- 
lawful contract or constitution, are bound, equally with other 
men, to declare it, and all unjust enactments passed by the 
government in pursuance of it, unlawful and void. These 
judicial tribunals cannot, by accepting office under a govern- 
ment, rid themselves of that paramount obligation, that all 
men are under, to declare, if they declare any thing, that 
justice is law ; that government can have no lawful powers, 
except those with which it has been invested by lawful con- 
tract ; and that an unlawful contract for the establishment of 
government, is as unlawful and void as any other contract to 
do injustice. 

No oaths, which judicial or other officers may take, to carry 
out and support an unlawful contract or constitution of gov- 
ernment, are of any moral obligation. It is immoral to take 
such oaths, and it is criminal to fulfil them. They are, 
both in morals and law, like the oaths which individual pi- 
rates, thieves and bandits give to their confederates, as an 
assurance of their fidelity to the purposes for which they are 
associated. No man has any moral right to assume such 
oaths ; they impose no obligation upon those who do assume 
them ; they afford no moral justification for official acts, in 
themselves unjust, done in pursuance of them. 

If these doctrines are correct, then those contracts of gov- 
ernment, state and national, which we call constitutions, are 
void, and unlawful, so far as they purport to authorize, (if 



WHAT IS LAW ? 


11 


any of them do authorize,) any thing in violation of natural 
justice, or the natural rights of any man or class of men 
whatsoever. And all judicial tribunals are bound, by the 
highest obligations that can rest upon them, to declare that 
these conlracts, in all such particulars, (if any such there be,) 
are void, and not law. And all agents, legislative, executive, 
judicial and popular, who voluntarily lend their aid to the ex- 
ecution of any of the unlawful purposes of the government, 
are as much personally guilty, according to all the moral and 
legal principles, by which crime, in its essential character, is 
measured, as though they performed the same acts indepen- 
dently, and of their own volition. 

Such is the true character and definition of law. Yet, in- 
stead of being allowed to signify, as it in reality does, that 
natural, universal and inflexible principle, which has its origin 
in the nature of man, keeps pace every where with the rights 
of man, as their shield and protector, binds alike governments 
and men, weighs by the same standard the acts of communi- 
ties and individuals, and is paramount in its obligation to any 
other requirement which can be imposed upon men — instead, 
I say, of the term law being allowed to signify, as it originally 
did, this immutable and overruling principle of natural justice, 
it has come to be applied to mere arbitrary rules of conduct 
prescribed by individuals, or combinations of individuals, self- 
styled governments, who have no other title to the preroga- 
tive of establishing such rules, than is given them by the 
possession or command of sufficient physical power to coerce 
submission to them. 

The injustice of these rules, however palpable and atro- 
cious it may be, has not deterred their authors from dignifying 
them with the name of law. And, what is much more to be 
deplored, such has been the superstition of the people, and 
such their blind veneration for physical power, that this injus- 
tice has not opened their eyes to the distinction between law 
and force, between the sacred requirements of natural justice 
and the criminal exactions of unrestrained sefishness and 



12 


THE UNCONSTITUTIONALITY OF SLAVERY. 


power. They have thus not only suffered the name of law 
to be stolen, and applied to crime as a cloak to conceal its 
true nature, but they have rendered homage and obedience 
to crime, under the name of law, until the very name of law, 
instead of signifying, in their minds, an immutable principle 
of right, has come to signify little more than an arbitrary com- 
mand of power, without reference to its justice or its injustice, 
its innocence or its criminality. And now, commands the 
most criminal, if christened with the name of law, obtain 
nearly as ready an obedience, oftentimes a more ready obedi- 
ence, than law and justice itself. This superstition, on the 
part of the people, which has thus allowed force and crime to 
usurp the name and occupy the throne of justice and law, is 
hardly paralleled in its grossness, even by that superstition, 
which, in darker ages of the world, has allowed falsehood, 
absurdity and cruelty to usurp the name and the throne of 
religion. 

But I am aware that other definitions of law, widely differ- 
ent from that I have given, have been attempted — definitions 
too, which practically obtain, to a great extent, in our judicial 
tribunals, and in all the departments of government. But 
these other definitions are nevertheless, all, in themselves, un- 
certain, indefinite, mutable ; and therefore incapable of being 
standards, by a reference to which the question of law, or no 
law, can be determined. Law, as defined by them, is capri- 
cious, arbitrary, unstable ; is based upon no fixed principle ; 
results from no established fact ; is susceptible of only a 
limited, partial and arbitrary application ; possesses no intrin- 
sic authority ; does not, in itself, recognize any moral principle ; 
does not necessarily confer upon, or even acknowledge in 
individuals, any moral or civil rights ; or impose upon them 
any moral obligation. 

For example. One of these definitions — one that probably 
embraces the essence of all the rest — is this : 

That “ law is a rule of civil conduct, prescribed by the 
supreme power of a state, commanding what its subjects are 



WHAT IS LAW ? 


13 


to do, and prohibiting what they are to forbear.” Noah 
Webster. 

In this definition, hardly any thing, that is essential to the 
idea of law, is made certain. Let us see. It says that, 

“ Law is a rule of civil conduct, prescribed by the supreme 
power of a state.” 

What is “ the supreme power,” that is here spoken of, as 
the fountain of law ? Is it the supreme physical power ? Or 
the largest concentration of physical power, whether it exist 
in one man, or in a combination of men ? Such is undoubt- 
edly its meaning. And if such be its meaning, then the law 
is uncertain ; for it is oftentimes uncertain where, or in what 
man, or body of men, in a state, the greatest amount of 
physical power is concentrated. Whenever a state should be 
divided into factions, no one having the supremacy of all the 
rest, law would not merely be inefficient, but the very principle 
of law itself would be actually extinguished. And men 
would have no “ rule of civil conduct.” This result alone is 
sufficient to condemn this definition. 

Again. If physical power be the fountain of law, then law 
and force are synonymous terms. Or, perhaps, rather, law 
would be the result of a combination of will and force ; of 
will, united with a physical power sufficient to compel obe- 
dience to it, but not necessarily having any moral character 
whatever. 

Are we prepared to admit the principle, that there is no 
real distinction between law and force ? If not, we must 
reject this definition. 

It is true that law may, in many cases, depend upon force 
as the means of its practical efficiency. But are law and 
force therefore identical in their essence ? 

According to this definition, too, a command to do injustice, 
is as much law, as a command to do justice. All that is 
necessary, according to this definition, to make the command 
a law, is that it issue from a will that is supported by physical 
force sufficient to coerce obedience. 



14 


THE UNCONSTITUTIONALITY OF SLAVERY. 


Again. If mere will and power are sufficient, of them- 
selves, to establish law — legitimate law — such law as judicial 
tribunals are morally bound, or even have a moral right to 
enforce — then it follows that wherever will and power are 
united, and continue united until they are successful in the 
accomplishment of any particular object, to which they are 
directed, they constitute the only legitimate law of that case, 
and judicial tribunals can take cognizance of no other. 

And it makes no difference, on this principle, whether this 
combination of will and power be found in a single individual, 
or in a community of an hundred millions of individuals. — 
The numbers concerned do not alter the rule — otherwise law 
would be the result of numbers, instead of “ supreme power.” 
It is therefore sufficient to comply with this definition, that 
the power be equal to the accomplishment of the object. And 
the will and power of one man are therefore as competent to 
make the law relative to any acts which he is able to execute, 
as the will and power of millions of men are to make the 
law relative to any acts which they are able to accomplish. 

On this principle, then — that mere will and power are com- 
petent to establish the law that is to govern an act, without 
reference to the justice or injustice of the act itself, the will 
and power of any single individual to commit theft, would be 
sufficient to make theft lawful, as lawful as is any other act 
of injustice, which the will and power of communities, or large 
bodies of men, may be united to accomplish. And judicial 
tribunals are as much bound to recognize, as lawful, any act of 
injustice or crime, which the will and power of a single indi- 
vidual may have succeeded in accomplishing, as they are to 
recognize as lawful any act of injustice, which large and or- 
ganized bodies of men, self-styled governments, may accom- 
plish. 

But, perhaps it will be said that the soundness of this defi- 
nition depends upon the use of the word “ state” — and that it 
therefore makes a distinction between “ the supreme power of 
a state,” over a particular act, and the power of an individual 
over the same act. 



WHAT IS LAW ? 


15 


But this addition of the word “ state,” in reality leaves the 
definition just where it would have been without it. For what 
is “ a state ? ” It is just what, and only what, the will and 
power of individuals may arbitrarily establish. 

There is nothing fixed in the nature, character or boundaries 
of “a state.” Will and power may alter them at pleasure. 
The will and power of Nicholas, and that will and power, 
which he has concentrated around, or rather within himself, 
establishes all Russia, both in Europe and Asia, as “ a state.” 
By the same rule, the will and power of the owner of an acre 
of ground, may establish that acre as a state, and make his 
will and power, for the time being, supreme and lawful 
within it. 

The will and power, also, that established “ a state ” yester- 
day, may be overcome to-day by an adverse will and power, 
that shall abolish that state, and incorporate it into another, 
over which this latter will and power shall to-day be “supreme.” 
And this latter will and power may also to-morrow be over- 
come by still another will and power mightier than they. 

“ A state,” then, is nothing fixed, permanent or certain in 
its nature. It is simply the boundaries, within which any 
single combination or concentration of will and power, are 
efficient, or irresistible, for the time being. 

This is the only true definition that can be given of “ a 
state.” It is merely an arbitrary name given to the territorial 
limits of power. And if such be its true character, then it 
would follow, that the boundaries, though but two feet square, 
within which the will and power of a single individual are, 
for the time being, supreme, or irresistible, are, for all legal 
purposes, “ a state” — and his will and power constitute, for 
the time being, the law within those limits ; and his acts are, 
therefore, for the time being, as necessarily lawful, without 
respect to their intrinsic justice or injustice, as are the acts of 
larger bodies of men, within those limits where their will and 
power are supreme and irresistible. 

If, then, law really be, what this definition would make it, 


.16 


THE UNCONSTITUTIONALITY OF SLAVERY. 


merely “ a rule of civil conduct prescribed by the supreme 
power of a state ” — it would follow, as a necessary conse- 
quence, that law is synonymous merely with will and force, 
wherever they are combined and in successful operation, for 
the present moment. 

Under this definition, law offers no permanent guaranty for 
the safety, liberty, rights or happiness of any one. It licenses 
all possible crime, violence and wrong, both by governments 
and individuals. The definition was obviously invented by, 
and is suited merely to gloss over the purposes of, arbitrary 
power. We are therefore compelled to reject it; and to seek 
another, that shall make law less capricious, less uncertain, 
less arbitrary, more just, more safe to the rights of all, more 
permanent. And if we seek another, where shall we find it, 
unless we adopt the one first given, viz. that law is the rule, 
principle, obligation or requirement of natural justice 1 

Adopt this definition, and law becomes simple, intelligible, 
scientific ; always consistent with itself ; always harmonizing 
with morals, reason and truth. Reject this definition, and 
law is no longer a science : but a chaos of crude, conflicting 
and arbitrary edicts, unknown perchance to either morals, 
justice, reason or truth, and fleeting and capricious as the im- 
pulses of will, interest and power. 

If, then, law really be nothing other than the rule, principle, 
obligation or requirement of natural justice, it follows that 
government can have no powers except such as individuals 
may rightfully delegate to it : that no law, inconsistent with 
men’s natural rights, can arise out of any contract or com- 
pact of government: that constitutional law, under any 
form of government, consists only of those principles of the 
written constitution, that are consistent with natural law, 
and man's natural rights ; and that any other principles, 
that may be expressed by the letter of any constitution, are 
void and not law, and all judicial tribunals are bound to de- 
clare them so. 

Though this doctrine may make sad havoc with constitu- 



WHAT IS LAW? 


IT 


tions and statute books, it is nevertheless law. It fixes and 
determines the real rights of all men ; and its demands are 
as imperious as any that can exist under the name of law. 

It is possible, perhaps, that this doctrine would spare 
enough of our existing constitutions, to save our governments 
from the necessity of a new organization. But whatever else 
it might spare, one thing it would not spare. It would spare 
no vestige of that system of human slavery, which now claims 
to exist by authority of law. # 

* The mass of men are so much accustomed to regard law as an arbitrary com- 
mand of those who administer political power, that the idea of its being a natural , 
fixed, and immutable principle, may perhaps want some other support than that of 
the reasoning already given, to commend it to their adoption. I therefore give them 
the following corroborations from sources of the highest authority. 

" Jurisprudence is the science of what is just and unjust.” — Justinian. 

"The primary and principal objects of the law are rights and wrongs.” — Black- 
stone. 

"Justice is the constant and perpetual disposition to render to every man his 
due.” — Justinian. 

" The precepts of the law are to live honestly } to hurt no one } to give to every 
one his due.” — Justinian 4* Blackstone. 

" Law. The rule and bond of men’s actions 3 or it is a rule for the well govern- 
ing of civil society, to give to every man that which doth belong to him.”— Jacob’s 
Law Dictionary. 

" Laws are arbitrary or positive, and natural ; the last of which are essentially 
just and good, and bind every where, and in all places where they are observed. * * 

* * Those which are natural laws, are from God 5 but those which are arbitrary, 

are properly human and positive institutions.” — Selden on Fortescue, C. 17, also 
Jacob’s Law Dictionary. 

" The law of nature is that which God, at man’s creation, infused into him, for his 
preservation and direction 5 and this is an eternal law, and may not be changed.” — 2 
Shep. Abr. 356, also Jac. Law Diet. 

" All laws derive their force from the law of nature 5 and those which do not, are 
accounted as no laws.” — Fortescue. Jac. Law Diet. 

" No law will make a construction to do wrong} and there are some things which 
the law favors, and some it dislikes } it favoreth those things that come from the 
order of nature.”— 1 Inst. 183, 197. — Jac. Law Diet. 

" Of law no less can be acknowledged, than that her seat is the bosom of God, her 
voice the harmony of the world. All things in heaven and earth do her homage } 
the least as feeling her care, and the greatest as not exempted from her power.”— 
Hooker. 

" This law of nature being coeval with mankind, and dictated by God himself, is 
of course superior in obligation to any other. It is binding over all the globe, in all 

2 



CHAPTER II 


WRITTEN CONSTITUTIONS. 

Taking it for granted that it has now been shown that no 
rule of civil conduct, that is inconsistent with the natural 
rights of men, can be rightfully established by government, or 
consequently be made obligatory as law, either upon the peo- 

countries, and at all times : no human laws are of any validity, if contrary to this ; 
and such of them as are valid, derive all their force, and all their authority, medi- 
ately or immediately, from this original.” — Blackstone, Vol. 1, p. 41. 

Mr. Christian, one of Blackstone’s editors, in a note to the above passage, says : 

u Lord Chief Justice Hobart has also advanced, that even an act of Parliament 
made against natural justice, as to make a man judge in his own cause, is void in 
itself, for jura natural sunt immutabUia, and they are leges legum ” — (the laws of na- 
ture are immutable — they are the laws of laws.) — Hob. 87. 

Mr. Christian then adds : 

" With deference to these high authorities, (Blackstone and Hobart,) I should 
conceive that in no case whatever can a judge oppose his own opinion and authority 
to the clear will and declaration of the legislature. His province is to interpret and 
obey the mandates of the supreme power of the state. And if an act of Parliament, 
if we could suppose such a case, should, like the edict of Herod, command all the 
children under a certain age to be slain, the judge ought to resign his office rather 
than be auxiliary to its execution j but it could only be declared void by the same 
legislative power by which it was ordained. If the judicial power were competent 
to decide that an act of parliament was void because it was contrary to natural jus- 
tice, upon an appeal to the House of Lords this inconsistency wouid be the conse- 
quence, that as judges they must declare void, what as legislators they had enacted 
should be valid. 

11 The learned judge himself (Blackstone) declares in p. 91, if the Parliament will 
positively enact a thing to be done which is unreasonable, I know of no power in the 
ordinary forms of the constitution, that is vested with authority to control it.” 

It will be seen from this note of Mr. Christian, that he concurs in the opinion that 
an enactment contrary to natural justice is intrinsically void, and not law j and that 
the principal, if not the only difficulty, which he sees in carrying out that doctrine, 
is one that is peculiar to the British constitution, and does not exist in the United 
States. That difficulty is, the “ inconsistency ” there would be, if the House of 
Lords, (which is the highest law court in England, and at the same time one branch 



WRITTEN CONSTITUTIONS. 


19 


pie, or upon judicial tribunals — let us now proceed to test the 
legality of slavery by those written constitutions of govern- 
ment, which judicial tribunals actually recognize as author- 
itative. 

of the legislature,) were to declare, in their capacity as judges, that an act was void, 
which, as legislators, they had declared should be valid. And this is probably the 
reason why Blackstone admitted that he knew of no power in the ordinary forms of 
the (British) constitution, that was vested with authority to control an act of parlia- 
ment that was unreasonable, (against natural justice.) But in the United States, 
where the judicial and legislative powers are vested in different bodies, and where 
they are so vested for the very purpose of having the former act as a check upon 
¥ the latter, no such inconsistency would occur. 

The constitutions that have been established in the United States, and the discus- 
sions had on the formation of them, all attest the importance which our ancestors 
attached to a separation of the judicial, from the executive and legislative depart- 
ments of the government. And yet the benefits, which they had promised to liberty 
and justice from this separation, have in slight only, if any degree, been realized.— 
Although the legislation of the country generally has exhibited little less than an 
entire recklessness both of natural justice and constitutional authority, the records 
of the judiciary nevertheless furnish hardly an instance where an act of a legislature 
has, for either of these reasons, been declared void by its co-ordinate judicial de- 
* partment. There have been cases, few and far between, in which the United 

State's courts have declared acts of state legislatures unconstitutional. But the 
history of the co-ordinate departments of the same governments has been, that the 
judicial sanction followed the legislative act with nearly the same unerring certainty, 
that the shadow follows the substance. Judicial decisions have consequently had 
the same effects in restraining the actions of legislatures, that shadows have in re- 
straining the motions of bodies. 

Why this uniform concurrence of the judiciary with the legislature ? It is be- 
cause the separation between them is nominal, not real. The judiciary receive their 
offices and salaries at the hands of the executive and the legislature, and are amena- 
)- ble only to the legislature for their official character. They are made entirely inde- 

pendent of the people at large, (whose highest interests are liberty and justice,) and 
entirely dependent upon those who have too many interests inconsistent with liberty 
and justice. Could a real and entire separation of the judiciary from the other de- 
partments take place, we might then hope that their decisions would, in some 
measure, restrain the usurpations of the legislature, and promote progress in the 
science of law and of government. 

Whether any of our present judges would, (as Mr. Christian suggests they ought,) 
“ resign their offices ” rather than be auxiliary to the execution of an act of legis- 
lation, that, like the edict of Herod, should require all the children under a certain 
age to be slain, we cannot certainly know. But this we do know — that our judges 
have hitherto manifested no intention of resigning their offices to avoid declaring it 
to be law, that 11 children of two years old and under," may be wrested forever from 
that parental protection which is their birth-right, and subjected for life to outrages 
which all civilized men must regard as worse than death. 

To proceed with our authorities : — 

“ Those human laws that annex a punishment to murder, do not at all increase its 



20 


THE UNCONSTITUTIONALITY OF SLAVERY. 


In making this examination, however, I shall not insist upon 
the principle of the preceding chapter, that there can be no 
law contrary to natural right ; but shall admit, for the sake of 
the argument, that there may be such laws. I shall only 

moral guilt or superadd any fresh obligation in the forum of conscience to abstain 
from its perpetration. Nay, if any human law should allow or enjoin us to commit 
it, we are bound to transgress that human law, or else we must offend both the natural 
and the divine.” — Blackstone , Vol. 1, p. 42, 43. 

“ The law of nations depends entirely upon the rules of natural law , or upon 
mutual compacts, treaties, leagues and agreements between these several communi- 
ties ; in the construction also of which compacts, we have no other rule to resort to, 
but the law of nature : (that) being the only one to which all the communities are 
equally subject.” — Blackstone , Vol. 1, p. 43. 

11 Those rights then which God and nature have established, and are therefore 
called natural rights, such as are life and liberty, need not the aid of human laws to 
be more effectually invested in every man than they are ; neither do they receive 
any additional strength when declared by the municipal laws to be inviolable. On 
the contrary, no human legislature has power to abridge or destroy them, unless the 
owner shall himself commit some act that amounts to a forfeiture.” — Blackstone f 
Vol. 1, p. 54. 

“By the absolute rights of individuals, we mean those which are so in their 
primary and strictest sense ; such as would belong to their persons merely in a state 
of nature, and which every man is entitled to enjoy, whether out of society, or 
in it.” — Blackstone , Vol. 1 ,p. 123. 

" The principal aim of society (government) is to protect individuals in the enjoy- 
ment of those absolute rights, which were vested in them by the immutable laws of 
nature ; but which could not be preserved in peace without that mutual assistance 
and intercourse, which is gained by the institution of friendly and social communi- 
ties. Hence it follows, that the first and primary end of human laws is to maintain 
and regulate these absolute rights of individuals. Such rights as are social and 
relative result from, and are posterior to, the formation of states and societies j so 
that to maintain and regulate these, is clearly a subsequent consideration. And 
therefore the principal view of human laws is, or ought always to be, to explain, 
protect, and enforce such rights as are absolute j which, in themselves, are few and 
simple : and then such rights as are relative, which, arising from a variety of connex- 
ions, will be far more numerous and more complicated. These will take up a greater 
space in any code of laws, and hence may appear to be more attended to, though in 
reality they are not, than the rights of the former kind.” — Blackstone , Vol. 
1, p. 124. 

“ The absolute rights of man, considered as a free agent, endowed with discern- 
ment to know good from evil, and with power of choosing those measures which 
appear to him most desirable, are usually summed up in one general appellation, and 
denominated the natural liberty of mankind. This natural liberty consists properly 
in a power of acting as one thinks fit, without any restraint or control, unless by the 
law of nature, being a right inherent in us by birth, and one of the gifts of God to. 


WRITTEN CONSTITUTIONS. 


21 


claim that in the interpretation of all statutes and constitu- 
tions, the ordinary legal rules of interpretation be observed. 
The most important of these rules, and the one to which it 
will be necessary constantly to refer, is the one that all lan- 

man at his creation, when he endowed him with the faculty of free will.” — Black- 
stone, Vol. 1, p. 125. 

“ Moral or natural liberty, (in the words of Burlamaqni, ch. 3, s. 15,) is the right, 
which nature gives to all mankind of disposing of their persons and property after 
the manner they judge most consonant to their happiness, on condition of their 
acting within the limits of the law of nature, and that they do not any way abuse it 
to the prejudice of atiy other men.” — Christian's note, Blackstone, Vol. 1, p. 126. 

All the foregoing definitions of law, rights and natural liberty, although some of 
them are expressed in somewhat vague and indefinite terms, nevertheless recognize 
the primary idea, that law is a fixed principle, resulting from men’s natural rights $ 
and that therefore the acknowledgment and security of the natural rights of in- 
dividuals constitute the whole basis of law as a science, and a sine qua non of gov- 
ernment as a legitimate institution. 

And yet writers generally, who acknowledge the true theory of government and 
law, will nevertheless, when discussing matters of legislation, violate continually 
the fundamental principles with which they set out. On some pretext of promoting 
a great public good, the violation of individual rights will be justified in particular 
cases ; and the guardian principle being once broken down, nothing can then stay 
the irruption of the whole horde of pretexts for doing injustice 5 and government 
and legislation thenceforth become contests between factions for power and plunder, 
instead of instruments for the preservation of liberty and justice equally to all. 

The current doctrine that private rights must yield to the public good, amounts, 
in reality, to nothing more nor less than this, that an individual or the minority must 
consent to have less than their rights, in order that other individuals, or the majority, 
may have more than their rights. On this principle no honest government could 
ever be formed by voluntary contract, (as our governments purport to be j) because 
no man of common sense would consent to be one of the plundered minority, and 
no honest man could wish to be one of the plundering majority. 

The apology, that is constantly put forth for the injustice of government, viz., that 
a man must consent to give up some of his rights, in order to have his other rights 
protected — involves a palpable absurdity, both legally and politically. It is an 
absurdity in law, because it says that the law must be violated in some cases, in 
order that it may be maintained in others. It is an absurdity politically, because a 
man’s giving up one of his rights has no tendency whatever to promote the protec- 
tion of others. On the contrary, it only renders him less capable of defending 
himself, and consequently makes the task of his protection more burdensome to the 
government. At the same time it places him in the situation of one who has con- 
ceded a part of his rights, and thus cheapened the character of all his rights in the 
eyes of those of whom he asks assistance. There would be as much reason in 
saying that a man must consent to have one of his hands tied behind him, in order 
that his friends might protect the rest of his body against an enemy, as there is in 
saying that a man must give up some of his rights in order that government may 
protect the remainder. Let a man have the use of both his hands, and the enjoyment 
2 * 



22 


THE UNCONSTITUTIONALLY OF SLAVERY. 


guage must be construed strictly in favor of natural right. — • 
The rule is laid down by the Supreme Court of the United 
States in these words, to wit : 

“ Where rights are infringed, where fundamental principles 
are overthrown, where the general system of the law is de- 
parted from, the legislative intention must be expressed with 
irresistible clearness, to induce a court of justice to suppose 
a design to effect such objects. ” * 

It will probably appear from this examination of the writ- 
ten constitutions, that slavery neither has, nor ever had any 

of all his rights, and he will then be more competent to his own defence ; his rights 
will be more respected by those who might otherwise be disposed to invade them ; 
he will want less the assistance and protection of others j and we shall need much 
less government than we now have. 

Tf individuals choose to form an association or government, for the mutual pro- 
tection of each other’s rights, why bargain for the protection of an indefinite portion 
of them, at the price of giving to the association itself liberty to violate the equally 
indefinite remainder 1 By such a contract, a man really surrenders every thing, and 
secures nothing. Such a contract of government would be a burlesque on the 
wisdom of asses. Such a contract never was, nor ever will be voluntarily formed. 
Yet all our governments act on that principle 5 and so far as they act upon it, they 
are as essentially usurping and tyrannical as any governments can be. If a man pay 
his proportion of the aggregate cost of protecting all the rights of each of the 
members of the association, he thereby acquires a claim upon the association to have 
his own rights protected without diminution. 

The ultimate truth on this subject is, that man has an inalienable right to so much 
personal liberty as he will use without invading the rights of others. This liberty is 
an inherent right of his nature and his faculties. It is an inherent right of his 
nature and his faculties to develope themselves freely, and without restraint from 
other natures and faculties, that have no superior prerogatives to his own. And this 
right has only this limit, viz., that he do not carry the exercise of his own liberty so 
far as to restrain or infringe the equally free developement of the natures and facul- 
ties of others. The dividing line between the equal liberties of each must never be 
transgressed by either. This principle is the foundation and essence of law and of 
civil right. And legitimate government is formed by the voluntary association of 
individuals, for the mutual protection of each of them in the enjoyment of this 
natural liberty, against those who may be disposed to invade it. Each individual 
being secured in the enjoyment of this liberty, must then take the responsibility of 
his own happiness and well-being. If his necessities require more than his faculties 
will supply, he must depend upon the voluntary kindness of his fellow- men $ unless 
he be reduced to that extremity where the necessity of self-preservation over-rides 
all abstract rules of conduct, and makes a law for the occasion — an extremity, that 
would probably never occur but for some antecedent injustice. 

♦United States vs. Fisher, 2 Cranch, 390. 



WRITTEN CONSTITUTIONS. 


23 


constitutional existence in this country ; that it has always 
been a mere abuse, sustained, in the first instance, merely by 
the common consent of the strongest party, without any law 
on the subject, and, in the second place, by a few unconstitu- 
tional enactments, made in defiance of the plainest provisions 
of their fundamental law. 

For the more convenient consideration of this point, we 
will divide the constitutional history of the country into three 
periods ; the first embracing the time from the first settlement 
of the country up to the Declaration of Independence ; the 
second embracing the time from the Declaration of Indepen- 
dence to the adoption of the Constitution of the United States 
in 1789 ; and the third embracing all the time since the adop- 
tion of the Constitution of the United States. 

Let us now consider the first period ; that is, from the set- 
tlement of the country, to the Declaration of Independence. 



CHAPTER III. 


THE COLONIAL CHARTERS. 


W hen our ancestors came to this country, they brought 
with them the common law of England, including the writ of 
habeas corpus , (the essential principle of which, as will here- 
after be shown, is to deny the right of property in man,) the 
trial by jury, and the other great principles of liberty, which 
prevailed in England, and which have made it impossible that 
her soil should be trod by the foot of a slave. 

These principles were incorporated into all the charters, 
granted to the colonies, (if all those charters were like those 
I have examined, and I have examined nearly all of them.) — 
The general provisions of those charters, as will be seen from 
the extracts given in the note, were, that the laws of the col- 
onies should “ not be repugnant or contrary, but as nearly as 
circumstances would allow, conformable to the laws, statutes 
and rights of our kingdom of England. ” * 


* The second charter to Virginia (1609) grants the power of making “ orders, 
ordinances, constitutions, directions and instructions,” “ so always as the said stat- 
utes, ordinances and proceedings, as near as conveniently may be, be agreeable to 
the laws, statutes, government and policy of this our realm of England.” 

The third charter (1611 — 12) gave to the “General Court” “power and authori- 
ty ” to “ make laws and ordinances ” “so always as the same be not contrary to the 
laws and statutes of our realm of England.” 

The first charier to Carolina, (including both North and South Carolina,) dated 
1663, authorized the making of laws under this proviso — “Provided nevertheless, 
that the said laws be consonant to reason, and as near as may be conveniently, 
agreeable to the laws and customs of this our kingdom of England.” 

The second charter (1665) has this proviso. “ Provided nevertheless, that the said 
laws be consonant to reason, and as near as may be conveniently, agreeable to the 
laws and customs of this our realm of England.” 

The charter to Georgia, (1732,) an hundred years after slavery had actually existed 



THE COLONIAL CHARTERS. 


25 


Those charters were the fundamental constitutions of the 
colonies, with some immaterial exceptions, up to the time of 
the revolution ; as much so as our national and state consti- 
tutions are now the fundamental laws of our governments. 

The authority of these charters, during their continuance, 
and the general authority of the comrdon law, prior to the 
revolution, have been recognized by the Supreme Court of 
the United States.* 

in Virginia, makes no mention of slavery, but requires the laws to be “ reasonable 
and not repugnant to the laws of this our realm.” “ The said corporation shall and 
may form and prepare laws, statutes and ordinances fit and necessary for and con- 
cerning the government of the said colony, and not repugnant to the laws and stat- 
utes of England.” 

The charter to Maryland gave the power of making laws, “ So, nevertheless, that 
the laws aforesaid be consonant to reason, and be not repugnant or contrary, but (so 
far as conveniently may be,) agreeable to the laws, statutes, customs, and rights of 
this our kingdom of England.” 

The charter granted to Sir Edward Plowden had this proviso. “ So, nevertheless, 
that the laws aforesaid be consonant to reason, and not repugnant and contrary, (but 
as convenient as may be to the matter in question,) to the laws, statutes, customs 
and rights of our kingdoms of England and Ireland.” 

In the charter to Pennsylvania, power was granted to make laws, and the people 
were required to obey them, “ Provided nevertheless that the said laws be conso- 
nant to reason, and be not repugnant or contrary, but, as near as conveniently may 
be, agreeable to the laws, statutes, and rights of this our kingdom of England.” 

I have not been able to find a copy of the charter granted to the Duke of York, of 
the territory comprising New York, New Jersey, &c. But Gordon, in his history 
of the American Revolution, (vol. 1, p. 43,) says, “ The king’s grant to the Duke of 
York, is plainly restrictive to the laws and government of England.” 

The charter to Connecticut gave power “ Also from time to time, to make, ordain 
and establish all manner of wholesome and reasonable laws, statutes, ordinances, 
directions and instructions, not contrary to the laws of this realm of England.” 

The charter to the Massachusetts Bay Colony, (granted by William and Mary,) 
gave “ full power and authority, from time to time, to make, ordain and establish all 
manner of wholesome and reasonable orders, laws, statutes and ordinances, direc- 
tions and instructions, either with penalties or without, so as the same be not repug- 
nant or contrary to the laws of this our realm of England.” 

The charter to Rhode Island granted the power of making laws, “ So as such 
laws, ordinances, constitutions, so made, be not contrary and repugnant unto, but 
(as near as may be) agreeable to the laws of this our realm of England, considering 
the nature and constitution of the place and people there.” 

Several other charters, patents, &c. that had a temporary existence, might be 
named, that contained substantially the same provision. 

* In the case of the town of Pawlet v. Clark and others, the court say — 

“ Let us now see how far these principles were applicable to New Hampshire, at 
the time of issuing the charter to Pawlet. 

u New Hampshire was originally erected into a royal province in the thirty-first 


26 


THE UNCONSTITUTIONALITY OF SLAVERY. 


No one of all these charters that I have examined — and I 
have examined nearly all of them — contained the least inti- 
mation that slavery had, or could have, any legal existence 
under them. Slavery was therefore as much unconstitutional 
in the colonies, as it was in England. 

It was decided by the Court of King’s Bench in Eng- 
land — Lord Mansfield being Chief Justice — before our revo- 
lution, and while the English Charters were the fundamental 
law of the colonies — that the principles of English liberty 
were so plainly incompatible with slavery, that even if a 
slaveholder, from another part of the world, brought his slave 
into England — though only for a temporary purpose, and with 
no intention of remaining — he nevertheless thereby gave the 
slave his liberty. 

Previous to this decision, the privilege of bringing slaves 
into England, for temporary purposes, and of carrying them 
away, had long been tolerated. 

This decision was given in the year 1772.* And for aught 
I see, it was equally obligatory in this country as in England, 
and must have freed every slave in this country, if the ques- 
tion had then been raised here. But the slave knew not his 
rights, and had no one to raise the question for him. 

The fact, that slavery was tolerated in the colonies, is no 
evidence of its legality ; for slavery was tolerated, to a cer- 

year of Charles II., and from thence until the revolution continued a royal province, 
under the immediate control and direction of the crown. By the first royal commis- 
sion granted in 31 Charles II., among other things, judicial powers, in all actions, 
were granted to the provincial governor and council, 1 So always that the form of 
proceeding in such cases, apd the judgment thereupon to be given, be as consonant 
and agreeable to the laws and statutes of this our realm of England, as the present 
state and condition of our subjects inhabiting within the limits aforesaid (i. e. of the 
province) and the circumstances of the place will admit.’ Independent, however , of 
such a provision, we take it to be a clear principle that the common law in force at 
the emigration of our ancestors, is deemed the birthright of the colonies , unless so far 
as it is inapplicable to their situation, or repugnant to their other rights and privi- 
leges. A fortiori the principle applies to a royal province.” — (9 Cranch’s U. State’s 
Reports ,332 — 3. 

* Somerset v. Stewart. — Lofft’s Reports, p. 1 to 19, of Easter Term, 1772. In 
the Dublin edition the case is not entered in the Index. 



THE COLONIAL CHARTERS. 


27 


tain extent, in England, (as we have already seen,) for many 
years previous to the decision just cited — that is, the holders 
of slaves from abroad were allowed to bring their slaves into 
England, hold them during their stay there, and carry them 
away when they went. But the toleration of this practice 
did not make it lawful, notwithstanding all customs, not pal- 
pably and grossly contrary to the principles of English 
liberty, have great weight, in England, in establishing law. 

The fact, that England tolerated, (i. e. did not punish 
criminally,) the African slave-trade at that time, could not 
legally establish slavery in the colonies, any more than it did 
in England — especially in defiance of the positive require- 
ments of the charters, that the colonial legislation should be 
consonant to reason, and not repugnant to the laws of Eng- 
land. 

Besides, the mere toleration of the slave trade could not 
make slavery itself — the right of property in man — lawful 
any where ; not even on board the slave ship. Toleration of 
a wrong is not law. And especially the toleration of a wrong, 
(i. e. the bare omission to punish it criminally,) does not le- 
galize one’s claim to property obtained by such wrong. Even 
if a wrong can be legalized at all, so as to enable one to ac- 
quire rights of property by such wrong, it can be done only 
by an explicit and positive provision. 

The English statutes, on the subject of the slave trade, (so 
far as I have seen,) never attempted to legalize the right of 
property in man, in any of the thirteen North American 
colonies. It is doubtful whether they ever attempted to do it 
any where else. It is also doubtful whether Parliament had 
the power — or perhaps rather it is certain that they had not 
the power — to legalize it any where, if they had attempted 
to do so.* And the cautious and curious phraseology of 


* Have parliament the constitutional prerogative of abolishing the writ of habeas 
carpus ? the trial by jury? or the freedom of speech and the press? If not, have 
they the prerogative of abolishing a man’s right of property in his own person ? 



28 


THE UNCONSTITUTIONALITY OF SLAVERY. 


their statutes on the subject, indicates plainly that they them- 
selves either doubted their power to legalize it, or feared to 
exercise it. They have therefore chosen to connive at slave 
ry, to insinuate, intimate, and imply their approbation of it, 
rather than risk an affirmative enactment declaring that one 
man may be the property of another. But Lord Mansfield 
said, in Somerset’s case, that slavery was “ so odious that 
nothing can be suffered to support it, but positive law. ” — 
No such positive law (I presume) was ever passed by 
parliament — certainly not with reference to any of these 
thirteen colonies. 

The statute of 1788, (which I have not seen,) in regard 
to the slave trade, may perhaps have relieved those engaged 
in it, in certain cases, from their liability to be punished crim- 
inally for the act. But there is a great difference between a 
statute, that should merely screen a person from punishment 
for a crime, and one that should legalize his right to property 
acquired by the crime. Besides, this act was passed after the 
separation between America and England, and therefore could 
have done nothing towards legalizing slavery in the United 
States, even if it had legalized it in the English dominions. 

The statutes of 1750, (23, George 2d, Ch. 31,) may have 
possibly authorized, by implication, (so far as parliament 
could thus authorize, ) the colonial governments, ( if govern- 
ments they could be called, ) on that coast of Africa, to al- 
low slavery under certain circumstances, and within the “ set- 
tlements ” on that coast. But, if it did, it was at most a 
grant of a merely local authority. It gave no authority to 
carry slaves from the African coast. But even if it had pur- 
ported distinctly to authorize the slave trade from Africa to 
America, and to legalize the right of property in the particu- 
lar slaves thereafter brought from Africa to America, it would 
nevertheless have done nothing towards legalizing the right 
of property in the slaves that had been brought to, and born 
in, the colonies for an hundred and thirty years previous to 
the statute. Neither the statute, nor any right of property 



THE COLONIAL CHARTERS. 


29 


acquired under it, (in the individual slaves thereafterwards 
brought from Africa,) would therefore avail anything for the 
legality of slavery in this country now ; because the descend- 
ants of those brought from Africa under the act, cannot now 
be distinguished from the descendants of those who had, for 
the hundred and thirty years previous, been held in bondage 
without law. 

But the presumption is, that, even after this statute was 
passed in 1750, if the slave trader’s right of property in the 
slave he was bringing to America, could have been brought 
before an English court for adjudication, the same principles 
would have been held to apply to it, as would have applied 
to a case arising within the island of Great Britain. And it 
must therefore always have been held by English courts, (in 
consistency with the decision in Somerset’s case,) that the 
slave trader had no legal ownership of his slave. And if the 
slave trader had no legal right of property in his slave, he 
could transfer no legal right of property to a purchaser in the 
colonies. Consequently the slavery of those that were 
brought into the colonies after the statute of 1750, was equal- 
ly illegal with that of those who had been brought in before.* 

* Mr. Bancroft, in the third volume of his history, (pp. 413, 14,) says : 

“ And the statute book of England soon declared the opinion of its king and its 
parliament, that ‘ the trade,’ ” (by which he means the slcwe trade, of which he is 
writing,) ‘ is highly beneficial and advantageous to the kingdom and the colonies.’ 
To prove this he refers to statute of “ 1795, 8 and 10 Wm. 3, ch. 20.” (Should be 
1797, 8—9 and 10 Wm. 3, ch. 26.) 

Now the truth is that, although this statute may have been, and very probably was 
designed to insinuate to the slave traders the personal approbation of parliament to 
the slave trade, yet the statute itself says not a word of slaves, slavery, or the slave 
trade, except to forbid, under penalty of five hundred pounds, any governor, deputy- 
governor or judge, in the colonies or plantations in America, or any other person or 
persons, for the use or on the behalf of such governor, deputy-governor or judges, 
to be “ a factor or factor’s agent or agents ” “ for the sale or disposal of any ne- 
groes.” 

The statute does not declare, as Mr. Bancroft asserts, that “ the (slave) trade is 
highly beneficial and advantageous to the kingdom and the colonies ;” but that “ the 
trade to Africa is highly beneficial and advantageous,” &c. It is an inference of Mr. 
Bancroft’s that “ the trade to Africa ” was the slave trade. Even this inference is 

3 



30 THE UNCONSTITUTIONALITY OF SLAVERY. 

The conclusion of the whole matter is, that until some 
reason appears against them, we are bound by the decision of 

not justified by the words of the statute, considering them in that legal view, in 
which Mr. Bancroft’s remarks purport to consider them. 

It is true that the statute assumes that “ negroes ” will be “ imported ” from Africa 
into “ England,” (where of course they were not slaves,) and into the “ plantations 
and colonies in America.” But it nowhere calls these “ negroes ” slaves , nor as- 
sumes that they are slaves. For aught that appears from the statute, they were free 
men and passengers, voluntary emigrants, going to “ England ” and “ the planta- 
tions and colonies ” as laborers, as such persons are now going to the British West 
Indies. 

The statute, although it apparently desires to insinuate or faintly imply that they 
are property, or slaves, nevertheless studiously avoids to acknowledge them as such 
distinctly, or even by any necessary implication ; for it exempts them from duties 
as merchandize, and from forfeiture for violation'of revenue laws, and it also relieves 
the masters of vessels from any obligation to render any account of them at the 
custom houses. 

When it is considered that slavery, property in man, can be legalized, according 
to the decision of Lord Mansfield, by nothing less than positive law ; that the rights 
of property and person are the same on board an English ship, as in the island of 
Great Britain ; and that this statute implies that these “ negroes ” were to be “ im- 
ported” into “ England,” as well as into the “ Plantations and colonies in America,” 
and that it therefore no more implies that they were to be slaves in “ the plantations 
and colonies ” than in “ England,” where we know they could not be slaves ; when 
these things are considered, it is perfectly clear, as a legal proposition, that the stat- 
ute legalized neither slavery in the plantations and colonies, nor the slave trade 
from Africa to America — however we may suppose it to have been designed to 
hint a personal approbation, on the part of parliament, of the actual traffic. 

But lest I may be suspected of having either misrepresented the words of the 
statute, or placed upon them an erroneous legal construction, I give all the words of 
the statute, that make any mention of “ negroes,” or their importation, with so much 
of the context as will enable the reader to judge for himself of the legal import of 
the whole. 

The act is entitled, “ An Act to settle the Trade to Africa .” Sec. 1 recites as 
follows : — 

“ Whereas, the Trade to Africa is highly beneficial and advantageous to this king- 
dom and to the Plantations and Colonies thereunto belonging.” 

The act contains twenty-one sections, regulating trade, duties. &c., like any other 
navigation act. “ Negroes ” are mentioned only in the following instances and con- 
nexions, to wit : 

Sec. 7. “ And be it enacted by the authority aforesaid, That from and after the 
four-and-twentieth day of June, one thousand six hundred ninety-and-eight, it shall 
and may be lawful to and for any of the subjects of his majesty’s realms of England, 
as well as the said Company,* to trade from England or any of his majesty’s plan- 
tations or colonies in America to the coast of Africa, between Blanco and Cape 
Mount, answering and paying a duty of ten pounds per centum ad valorem for the 
goods and merchandizes to be exported from England or any of his majesty’s plan- 
tations or colonies in America to and for the coast of Africa, between Cape Blanco 


* The Royal African Company. 



THE COLONIAL CHARTERS. 


31 


the King’s bench in 1772, and the colonial charters. That 
decision declared that there was, at that time, in England, no 

and Cape Mount, and in proportion for a greater or lesser value, and answering and 
paying a further sum and duty of ten pounds per centum ad valorem, redwood only 
excepted, which is to pay five pounds per centum ad valorem, at the place of im- 
portation upon all goods and merchandize (negroes excepted) imported in (into) 
England or any of his majesty's plantations or colonies in America, from the coast 
of Africa, between Cape Blanco and Cape Mount aforesaid. * * * And that all 
goods and merchandize, (negroes excepted,) that shall be laded or put on board any 
ship or vessel on the coast of Africa, between Cape Blanco and Cape Mount, and 
shall be imported into England or into any of his majesty's plantations or colonies 
aforesaid, shall answer and pay the duties aforesaid, and that the master or chief 
officer of every such ship or vessel that shall lade or receive any goods or merchan- 
dize (negroes excepted) onboard of his or their ship or vessel between Cape Blanco 
and Cape Mount, shall upon making entry at any of his majesty’s custom houses 
aforesaid of the said ship or vessel, or before any goods or merchandize be landed 
or taken out of the said ship or vessel (negroes excepted) shall deliver in a manifest 
or particular of his cargo, and take the following oath, viz. 

I, A. B, do swear that the manifest or particular now by me given in and signed, 
to the best of my knowledge and belief doth contain, signify and express all the 
goods, wares and merchandizes (negroes excepted) which were laden or put on 

board the ship called the , during her stay and continuing on the 

coast of Africa between Cape Blanco and Cape Mount, whereof I, A. B. am mas- 
ter.” 

Sec. 8. “ And that the owner or importer of all goods and merchandize (negroes 
excepted) which shall be brought to England or any of his majesty’s plantations 
from any port of Africa between Cape Blanco and Cape Mount aforesaid shall 
make entry of all such goods and merchandize at one of his majesty’s chief custom 
houses in England, or in such of his majesty’s plantations where the same shall be 
imported,” &c. 

Sec. 9. * * * “ that all goods or merchandizes (negroes excepted) which 
shall be brought from any part of Africa, between Cape Blanco and Cape Mount 
aforesaid, which shall be unladed or landed before entry made and signed and oath 
of the true and real value thereof made and the duty paid as aforesaid shall be for- 
feited, or the value thereof.” 

Sec. 20. “ And be it further enacted by the authority aforesaid, that no governor, 
or deputy- governor of any of his majesty’s colonies or plantations in America, or his 
majesty’s judges in any courts there for the time being, nor any other person or per- 
sons for the use or on behalf of such governor or deputy-governor or judges, from 
and after the nine-and-twentieth day of September, one thousand six hundred and 
ninety-eight, shall be a factor or factor’s agent or agents for the said Company,* or 
any other person or persons for the sale or disposal of any negroes, and that every 
person offending herein shall forfeit five hundred pounds to the uses aforesaid, to be 
recovered in any of his majesty’s courts of record at Westminster, by action of debt, 
bill, plaint or information, wherein no essoign, protection, privilege or wager of law 
shall be allowed, nor any more than one imparlance.” 


* The Royal African Company. 



32 


THE UNCONSTITUTIONALITY OP SLAVERY, 


right of property in man, (notwithstanding the English gov- 
ernment had for a long time connived at the slave trade.) — 


Sec. 21. “ Provided that this act shall continue and be in force thirteen years , and 
from thence to the end of the next sessions of parliament, and no longer.” 

Even if this act had legalized, (as in reality it did not legalize,) the slave trade 
during those thirteen years, it would be impossible now to distinguish the descend- 
ants of those who were imported under it, from the descendants of those who had 
been previously, and were subsequently imported and sold into slavery without law. 
The act would therefore avail nothing towards making the existing slavery in this 
country legal. 

The next statute, of which I find any trace, passed by parliament, with any appa- 
rent view to countenance the slave trade, was the statute of 23d George II., ch. 31. 
(1749—50.) 

Mr. Bancroft has committed another still more serious error in his statement of 
the words , (for he professes to quote precise words,) of this statute. He says, (vol. 
3, p. 414,) 

“ At last, in 1749, to give the highest activity to the trade, (meaning the slave 
trade,) every obstruction to private enterprize was removed, and the ports of Africa 
were laid open to English competition, for ‘the slave trade,’ — such” (says Mr. 
Bancroft,) “ are the words of the statute — ‘the slave trade is very advantageous to 
Great Britain.’ ” 

As words are, in this case, things — and things of the highest legal consequence 
— and as this history is so extensively read and received as authority — it becomes 
important, in a legal, if not historical, point of view, to correct so important an error 
as that of the word slave in this statement. “ The words of the statute ” are not 
that “ the slave trade,” but that “ the trade to and from Africa is very advantageous 
to Great Britain.” “ The trade to and from Africa ” no more means, in law , “ the 
slave trade,” than does the trade to and from China. From aught that appears, 
then, from so much of the preamble, “the trade to and from Africa” may have been 
entirely in other things than slaves. And it actually appears from another part of 
the statute, that trade was carried on in “ gold, elephant’s teeth, wax, gums and 
drugs.” 

From the words immediately succeeding those quoted by Mr. Bancroft from the 
preamble to this statute, it might much more plausibly, (although even from them it 
could not be legally) inferred that the statute legalized the slave trade, than from 
those pretended to be quoted by him. That the succeeding words may be seen, 
the title and preamble to the act are given, as follows : 

“ An Act for extending and improving the trade to Africa .” 

“ Whereas, the trade to and from Africa is very advantageous to Great Britain, 
and necessary for supplying the plantations and colonies thereunto belonging, with a 
sufficient number of negroes at reasonable rates ; and for that purpose the said 
trade ” (i. e. “ the trade to and from Africa ”) “ ought to be free and open to all his 
majesty’s subjects. Therefore be it enacted,” &c. 

“Negroes” were not slaves by the English law, and therefore the word “ne- 
groes,” in this preamble, does not legally mean slaves. For aught that appears from 
the words of the preamble, or even from any part of the statute itself these “ ne- 
groes,” with whom it is declared to be necessary that the plantations and colonies 
should be supplied, were free persons, voluntary emigrants, that were to be induced 
to go to the plantations as hired laborers, as are those who, at this day, are induced, 



THE COLONIAL CHARTERS. 


33 


The colonial charters required the legislation of the colonies 
to be consonant to reason, and not repugnant or contrary, 

in large numbers, and by the special ageeny of the English government, to go to 
the British West Indies. In order to facilitate this emigration, it was necessary 
that ‘ the trade to and from Africa” should be encouraged. And the form of the 
preamble is such as it properly might have been, if such had been the real object of 
parliament. Such is undoubtedly the true legal meaning of this preamble, for this 
meaning being consistent with natural right, public policy, and with the fundamental 
principles of English law, legal rules of construction imperatively require that this 
meaning should be ascribed to it, rather than it should be held to authorize anything 
contrary to natural right, or contrary to the fundamental principles of British law. 

We are obliged to put this construction upon this preamble, for the further reason 
that it corresponds with the enacting clauses of the statute — not one of which 
mentions such a thing as the transportation of slaves to, or the sale of slaves in “ the 
plantations and colonies.” The first section of the act is in these words, to wit. 

“ That it shall and may be lawful for all his majesty’s subjects to trade and traffic 
to and from any port or place in Africa, between the port of Sallee in South Bar- 
bary, and the Cape of Good Hope, when, at such times, and in such manner, and in 
or with such quantity of goods , wares and merchandizes, as he or they shall think fit, 
without any restraint whatsoever, save as is hereiu after expressed.” 

Here plainly is no authority given “ to trade and traffic” in any thing except what 
is known either to the English law, or the law of nature, as “ goods, wares or mer- 
chandizes ” — among which rnen were not known, either to the English law, or the 
law of nature. 

The second section of the act is in these words: 

“ That all his majesty’s subjects, who shall trade to or from any of the ports or 
places of Africa, between Cape Blanco and the Cape of Good Hope, shall forever 
hereafter be a body corporate and politic, in name and in deed, by the name of the 
Company of Merchants Trading to Africa, and by the same name shall have per- 
petual succession, and shall have a common seal, and by that name shall and may 
sue, and be sued, and do any other act, matter and thing, which any other body cor- 
porate or politic, as such, may lawfully do.” 

Neither this nor any other section of the act purports to give this “ Company,” in 
its corporate capacity, any authority to buy or sell slaves, or to transport slaves to 
the plantations and colonies. 

The 29th section of the act is in these words : 

“ And be it further enacted by the authority aforesaid, that no commander or 
master of any ship trading to Africa, shall by fraud, force or violence, or by any 
other indirect practice whatsoever, take on board, or carry away from the coast of 
Africa, any negro or native of the said country, or commit, or suffer to be commit- 
ted, any violence on the natives, to the prejudice of the said trade 3 and that every 
person so offending shall, for every such offence, forfeit the sum of one hundred 
pounds of lawful money of Great Britain ; one moiety thereof to the use of the said 
Company hereby established, and their successors, for and towards the maintaining 
of said forts and settlements, and the other moiety to and for the use of him or them 
who shall inform or sue for the same.” 

Now, although there is perhaps no good reason to doubt that the secret intention of 
parliament in the passage of this act, was to stimulate the slave trade, and that there 

3 * 



34 


THE UNCONSTITUTIONAL ITT OF SLAVERY. 


but conformable, or agreeable, as nearly as circumstances 
would allow, to the laws, statutes and rights of the realm of 

was a tacit understanding between the goverument and the slave dealers, that the 
slave trade should go on unharmed (in practice) by the government, and although it 
was undoubtedly understood that this penalty of one hundred pounds would either 
not be sued for at all, or would be sued for so seldom as practically to interpose no 
obstacle to the general success of the trade, still, as no part of the whole statute 
gives any authority to this “ Company of Merchants trading to Africa ” to transport 
men from Africa against their will, and as this 29th section contains a special prohi- 
bition to individuals, under penalty, to do so, no one can pretend that the trade was 
legalized. If the penalty had been but one pound, instead of one hundred pounds, 
it would have been sufficient, in law, to have rebutted the pretence that the trade 
was legalized. The act, on its face, and in its legal meaning, is much more an act 
to prohibit, than to authorize the slave trade. 

The only possible legal inference from the statute, so far as it concerns the “ sup- 
plying the plantations and colonies with negroes at reasonable rates,” is, that these 
negroes were free laborers, voluntary emigrants, that were to be induced to go to 
the plantations and colonies j and that “ the trade to and from Africa ” was thrown 
open in order that the facilities for the transportation of these emigrants might be 
increased. 

But although there is, in this statute, no authority given for — but, on the contrary, 
a special prohibition upon — the transportation of the natives from Africa against 
their will, yet I freely admit that the statute contains one or two strong, perhaps de- 
cisive implications in favor of the fact that slavery was allowed in the English set- 
tlements on the coast of Africa, apparently in conformity with the customs of the 
country, and with the approbation of parliament. But that is the most that can be 
said of it. Slavery, wherever it exists, is a local institution 5 and its toleration, or 
even its legality, on the coast of Africa, would do nothing towards making it legal in 
any other part of the English dominions. Nothing but positive and explicit legisla- 
tion could transplant it into any other part of the empire. 

The implications, furnished by the act, in favor of the toleration of slavery, in the 
English settlements, on the coast of Africa, are the following : 

The third section of the act refers to another act of parliament “ divesting the 
Royal African Company of their charter, forts, castles and military stores, canoe-men 
and castle-slaves and section thirty -first requires that such “ officers of his majes- 
ty’s navy/’ as shall be appointed for the purpose, “ shall inspect and examine the 
state and condition of the forts and settlements on the coast of Africa, in the posses- 
sion of the Royal African Company, and of the number of soldiers therein, and also 
the state and condition of the military stores, castles, slaves, canoes and other ves- 
sels and things, belonging to the said company, and necessary for the use and defence 
of the said forts and settlements, and shall with all possible despatch report how 
they find the same.” 

Here the fact is stated that the u Royal African Company,” (a company that had 
been in existence long previous to the passing of this act,) had held “ castle-slaves ” 
“for the use and defence of the said forts and settlements.” The act does not say 
directly whether this practice was legal or illegal ; although it seems to imply that, 
whether legal or illegal, it was tolerated with the knowledge and approbation of par- 
liament. 

But the most distinct approbation given to slavery by the act, is implied in the 28th 
section, in these words : 



THE COLONIAL CHARTERS. 


35 


England.” That decision, then, if correct, settled the law 
both for England and the colonies. And if so, there was no 
constitutional slavery in the colonies up to the time of the 
revolution. 


11 That it shall and may be lawful for any of his majesty’s subjects trading to Afri- 
ca, for the security of their goods and slaves, to erect houses and warehouses, under 
the protection of the said forts,” &c. 

Although even this language would not be strong enough to overturn previously 
established principles of English law, and give the slave holders a legal right of 
property in their slaves, in any place where English law had previously been express- 
ly established, (as it had been in the North American colonies,) yet it sufficiently 
evinces that parliament approved of Englishmen holding slaves in the settlements on 
the coast of Africa, in conformity with the customs of that country. But it implies 
no authority for transporting their slaves to America } it does nothing towards legal- 
izing slavery in America} it implies no toleration even of slavery any where, except 
upon the coast of Africa. Had slavery been positively and explicitly legalized on 
the coast of Africa, it would still have been a local institution. 

This reasoning may appear to some like quibbling} and it would perhaps be so, 
were not the rule well settled that nothing but explicit and irresistible language can 
be legally held to authorize anything inconsistent with natural right, and with the 
fundamental principles of a government. 

That this statute did not legalize the right of property in man, (unless as a local 
principle on the coast of Africa,) we have the decision of Lord Mansfield, who held 
that it did not legalize it in England } and if it did not legalize it in England, it did 
not legalize it in any of the colonies where the principles of the common law pre- 
vailed. Of course it did not legalize it in the North American colonies. 

But even if it were admitted that this statute legalized the right of property, on 
the part of the slave trader, in his slaves taken in Africa after the passage of the act, 
and legalized the sale of such slaves in America, still the statute would be ineffec- 
tual to sustain the legality of slavery, in general, in the colonies. It would only 
legalize the slavery of those particular individuals, who should be transported from 
Africa to America, subsequently to the passage of this act, and in strict conformity 
with the law of this act — (a thing, by the way, that could now be proved in no case 
whatever.) This act was passed in 1749 — 50, and could therefore do nothing towards 
legalizing the slavery of all those who had, for an hundred and thirty years previous, 
been held in bondage in Virginia and elsewhere. And as no distinction can now be 
traced between the descendants of those who were imported under this act, and 
those who had illegally been held in bondage prior to its passage, it would be of no 
practical avail to slavery now, to prove, (if it could be proved,) that those intro- 
duced into the country subsequent to 1750, were legally the property of those who 
introduced them. 



CHAPTER IV. 


COLONIAL STATUTES. 


But the colonial legislation on the subject of slavery, was 
not only void as being forbidden by the colonial charters, but 
in many of the colonies it was void for another reason, viz : 
that it did not sufficiently define the persons who might be 
made slaves. 

Slavery, if it can be legalized at all, can be legalized only 
by positive legislation. Natural law gives it no aid. Custom 
imparts to it no legal sanction. This was the doctrine of the 
King’s Bench in Somerset’s case, as it is the doctrine of com- 
mon sense. Lord Mansfield said, “ So high an act of domin- 
ion must be recognized by the law of the country where it is 
used. * * * The state of slavery is of such a nature, that 
it is incapable of being introduced on any reasons, moral or 
political — but only positive law, which preserves its force long 
after the reasons, occasion, and time itself from whence it was 
created, is erased from the memory. It is so odious that 
nothing can be suffered to support it but positive law. ” 

Slavery, then, being the creature of positive legislation 
alone, can be created only by legislation that shall so particu- 
larly describe the persons to be made slaves, that they may 
be distinguished from all others. If there be any doubt left 
by the letter of the law, as to the persons to be made slaves, 
the efficacy of all other slave legislation is defeated simply by 
that uncertainty. 

In several of the colonies, including some of those where 
slaves were most numerous, there were either no laws at all 
defining the persons who might be made slaves, or the laws, 



COLONIAL STATUTES. 


37 


which attempted to define them, were so loosely framed that 
it cannot now be known who are the descendants of those 
designated as slaves, and who of those held in slavery with- 
out any color of law. As the presumption must — un- 
der the United States constitution — and indeed under the 
state constitutions also — be always in favor of liberty, it 
would probably now be impossible for a slaveholder to prove, 
in one case in an hundred, that his slave was descended, 
(through the maternal line, according to the slave code,) 
from any one who was originally a slave within the descrip- 
tion given by the statutes. 

When slavery was first introduced into the country, there 
were no laws at all on the subject. Men bought slaves of 
the slave traders, as they would have bought horses ; and held 
them, and compelled them to labor, as they would have done 
horses, that is, by brute force. By common consent among 
the white race, this practice was tolerated without any law. — 
At length slaves had in this way become so numerous, that 
some regulations became necessary, and the colonial govern- 
ments began to pass statutes, which assumed the existence of 
slaves, although no laws defining the persons who might be 
made slaves, had ever been enacted. For instance, they pass- 
ed statutes for the summary trial and punishment of slaves ; 
statutes permitting the masters to chastise and baptise their 
slaves,* and providing that baptism should not be considered, 

* u Chastised.” An act passed in South Carolina in 1740, authorized slaves to sue 
for their liberty, by a guardian .appointed for the purpose. The act then provides that 
if judgment be for the slave, he shall be set free, and recover damages} “ but in case 
judgment shall be given for the defendant, (the master,) the said court is hereby 
fully empowered to inflict such corporeal punishment, not extending to life or limb, 
on the ward of the plaintiff, (the slave) as they in their discretion shall see fit.” 

Brevard’s Digest , vol. 2, p 130. 

“ Baptised.” In 1712 South Carolina passed this act : 

u Since charity and the Christian religion which we profess, obliges us to wish well 
to the souls of all men, and that religion may not be made a pretence to alter any 
man’s property and right, and that no persons may neglect to baptize their negroes 
or slaves, or suffer them to be baptized, for fear that thereby they should be manumit- 
ted and set free : Be it therefore enacted, That it shall be, and is hereby declared 
lawful for any negro or Indian slave, or any other slave or slaves whatsoever, to re- 



38 


THE UNCONSTITUTIONALITY OF SLAVERY. 


in law, an emancipation of them. Yet all the while no act had 
been passed declaring who might be slaves. Possession was 
apparently all the evidence that public sentiment demanded, of 
a master’s property in his slave. Under such a code, multi- 
tudes, who had either never been purchased as slaves, or who 
had once been emancipated, were doubtless seized and re- 
duced to servitude by individual rapacity, without any more 
public cognizance of the act, than if the person so seized 
had been a stray sheep. 

Virginia. Incredible as it may seem, slavery had existed 
in Virginia fifty years before even a statute was passed for the 
purpose of declaring who might be slaves ; and then the per- 
sons were so described as to make the designation of no legal 
effect, at least as against Africans generally. And it was not 
until seventy eight years more, (an hundred and twenty-eight 
years in all,) that any act was passed that would cover the 
case of the Africans generally, and make them slaves. Slave- 
ry was introduced in 1620, but no act was passed even pur- 
porting to declare who might be slaves, until 1670. In that 
year a statute was passed in these words : “ That all ser- 
vants, not being Christians, imported into this country by 
shipping, shall be slaves for their lives. ” # 


ceive and profess the Christian faith, and be thereunto baptised. But that notwith- 
standing such slave or slaves shall receive and profess the Christian religion, and be 
baptised, he or they shall not thereby be manumitted or set free, or his or their own- 
er, master or mistress lose his or their civil right, property and authority over such 
slave or slaves, but that the slave or slaves, with respect to his or their servitude, 
shall remain and continue in the same state and condition, that he or they was in 
before the making of this act.” — Grimke, p. 18. Brevard , vol. 2, p. 229. 

In 1667, the following statute was passed in Virginia : 

11 Whereas, some doubts have arisen whether children that are slaves by birth, and 
by the charity and piety of their owners made partakers of the blessed sacrament of 
baptism, should by virtue of their baptism be made free ; It is enacted and declared 
by this grand assembly, and the authority thereof, that the confering of baptism doth 
not alter the condition of the person as to his bondage or freedom ; that divers mas- 
ters, freed from this doubt, may more carefully endeavor the propagation of Chris- 
tianity by permitting children, though slaves, or those of greater growth, if capable 
to be admitted to that sacrament.” — Heninfs Statutes , vol 2, p. 260. 

* Hening, vol. 2, p. 283. 



COLONIAL STATUTES. 


39 


This word “ servants ” of course legally describes individu- 
als known as such to the laws, and distinguished as such from 
other persons generally. But no class of Africans “ import- 
ed,” were known as “ servants,” as distinguished from Afri- 
cans generally, or in any manner to bring them within the le- 
gal description of “ servants,” as here used. In 1682 and 
in 1705 acts were again passed declaring “ that all servants,” 
&c., imported, should be slaves. And it was not until 1 748, 
after slavery had existed an hundred and twenty-eight 
years, that this description was changed for the following: 

“ That all persons, who have been or shall be imported in- 
to this colony,” &c., &c., shall be slaves. * 

In 1776, the only statute in Virginia, under which the 
slave-holders could make any claim at all to their slaves, was 
passed as late as 1753, (one hundred and thirty -three years 
after slavery had been introduced ;) all prior acts having 
been then repealed, without saving the rights acquired under 
them, f 

Even if the colonial charters had contained no express pro- 


* Hening, vol. 5, p. 547-8. 

fin 1753 Virginia passed a statute, occupying some twelve or fifteen pages of the 
statute book, and intended to cover the whole general subject of slavery. One of 
the sections of this act is as follows : 

“ That all and every other act and acts, clause and clauses, heretofore made, for or 
concerning any matter or thing within the provision of this act, shall be and are 
hereby repealed. ” — Hening’ s Statutes, vol. 6, p. 3 69. 

No reservation being made, by this section, of rights acquired under former stat- 
utes, and slave property being a matter dependent entirely upon statute, all title to 
slave property, acquired under former acts, wa3 by this act annihilated j and all the 
slaves in the State were made freemen, as against all prior legislation. And the 
slaves of the State were thenceforward held in bondage only by virtue of another 
section of the same act, which was in these words : 

“ That all persons who have been, or shall be imported into this colony, by sea or 
land, and were not Christians in their native country, except Turks and Moors in 
amity with his majesty, and such who can prove their being free in England, or any 
other Christian country, before they were shipped for transportation hither, shall be 
accounted slaves, and as such be here bought and sold, notwithstanding a conversion 
to Christianity after their importation.” — Hening, vol. 6,p. 356-7. 

The act also provided, “ That all children shall be bond or free, according to the 
condition of their mothers and the particular directions of this act.” 


40 


THE UNCONSTITUTIONALITY OF SLAVERY. 


hibition upon slave laws, it would nevertheless be absurd to 
pretend that the colonial legislature had power, in 1753, to 
look back an hundred and thirty-three years, and arbitrarily 
reduce to slavery all colored persons that had been imported 
into, or born in the colony within that time. If they could not 
do this, then it follows that all the colored persons in Virgin- 
ia, up to 1753, (only twenty-three years before the revolu- 
tion,) and all their descendants to the present time, were 
and are free ; and they cannot now be distinguished from the 
descendants of those subsequently imported. Under the 
presumption — furnished by the constitution of the United 
States — that all are free, few or no exceptions could now be 
proved. 

In North Carolina no general law at all was passed, prior 
to the revolution, declaring who might be slaves, — (See Ire- 
dell’s statutes, revised by Martin.) 

In South Carolinia, the only statutes, prior to the revolu- 
tion, that attempted to designate the slaves, was passed in 
1740 — after slavery had for a long time existed. And even 
this statute, in reality, defined nothing ; for the whole pur- 
port of it was, to declare that all negroes, Indians, mulattoes 
and mestizoes, except those who were then free, should be 
slaves. Inasmuch as no prior statute had ever been passed, 
declaring who should be slaves, all were legally free ; and 
therefore all came within the exception in favor of free per- 
sons. * 


* The following is the preamble and the important enacting clause of this statute 
of 1740 : 

t: Whereas, in his majesty’s plantations in America, slavery has been introduced 
and allowed ; and the people commonly called negroes, Indians, mulattos and mes- 
tizoes have (been) deemed absolute slaves, and the subjects of property in the 
hands of particular persons j the extent of whose power over such slaves ought to be 
settled and limited by positive laws, so that the slaves may be kept in due subjection 
and obedience, and the owners and other persons having the care and government of 
slaves, may be restrained from exercising too great vigor and cruelty over them 5 and 
that the public peace and order of this province may be preserved : Be it enacted, 
That all negroes, Indians, (free Indians in amity with this government, and negroes, 
mulattos and mestizoes, who are now free, excepted ,) mulattos and mestizoes, who 



COLONIAL STATUTES. 


41 


The same law, in nearly the same words, was passed in 
Georgia, in 1770. 

These were the only general statutes, under which slaves 
were held in those four States, (Virginia, North Carolina, 
South Carolina and Georgia,) at the time of the revolution. 
They would all, for the reasons given, have amounted to 
nothing, as a foundation for the slavery now existing in those 
states, even if they had not been specially prohibited by their 
charters. 


now are or shall hereafter be in this province, and all their issue and offspring born 
or to be born, shall be and they are hereby declared to be and remain forever here- 
after absolute slaves, and shall follow the condition of the mother/' &c .—Grimke, p. 
163-4. Brevard , vol. 2, p. 229. 


4 



CHAPTER V. 


THE DECLARATION OF INDEPENDENCE. 


Admitting, for the sake of the argument, that prior to the 
revolution, slavery had a constitutional existence, (so far as 
it is possible that crime can have such an existence,) was it 
not abolished by the declaration of independence ? 

The Declaration was certainly the constitutional law of this 
country for certain purposes. For example, it absolved the 
people from their allegiance to the English crown. It would 
have been so declared by the judicial tribunals of this coun- 
try, if an American, during the revolutionary war or since, 
had been tried for treason to the crown. If, then, the de- 
claration were the constitutional law of the country for that 
purpose, was it not also constitutional law for the purpose 
of recognizing and establishing, as law, the natural and 
inalienable right of individuals to life, liberty and the pur- 
suit of happiness ? The lawfulness of the act of absolving 
themselves from their allegiance to the crown, was avowed 
by the people of the country — and that too in the same in- 
strument that declared the absolution — to rest entirely upon, 
and to be only a consequence of the natural right of all men 
to life, liberty and the pursuit of happiness. If, then, the 
act of absolution was lawful, does it not necessarily follow 
that the principles that legalized the act, were also law ? And 
if the country ratified the act of absolution, did they not also 
necessarily ratify and acknowledge the principles which they 
declared legalized the act ? 

It is sufficient for our purpose, if it be admitted that this 
principle was the law of the country at that particular time, 



THE DECLARATION OF INDEPENDENCE. 


43 


(1776) — even though it had continued to be the law only 
for a year, or even a day. For if it were the law of the 
country even for a day, it freed every slave in the country — 
(if there were, as we say there were not, any legal slaves 
then in the country. J And the burden would then be upon 
the slaveholder to show that slavery had since been constitu- 
tionally established. And to show this, he must show an 
express constitutional designation of the particular individu- 
als, who have since been made slaves. Without such partic- 
ular designation of the individuals to be made slaves, (and 
not even the present constitutions of the slave States make 
any such designation,) all constitutional provisions, purport- 
ing to authorize slavery, are indefinite, and uncertain in their 
application, and for that reason void. 

But again. The people of this country — in the very in- 
strument by which they first announced their independent 
political existence, and first asserted their right to establish 
governments of their own — declared that the natural and in- 
alienable right of all men to life, liberty and the pursuit of 
happiness, was a “ self-evident truth.” 

Now, all “ self-evident truths ,” except such as may be ex- 
plicitly, or by necessary implication, denied, (and no govern- 
ment has a right to deny any of them,) enter into, are taken 
for granted by, and constitute an essential part of a}l consti- 
tutions, compacts and systems of government whatsoever. — 
Otherwise it would be impossible for any systematic govern- 
ment to be established ; for it must obviously be impossible to 
make an actual enumeration of all the “self-evident truths,” 
that are to be taken into account in the administration of such 
a government. This is more especially true of governments 
founded, like ours, upon contract. It is clearly impossible, in 
a contract of government, to enumerate all the “ self-evident 
truths ” which must be acted upon in the administration of 
law. And therefore they are all taken for granted, unless 
particular ones be plainly denied. 

This principle, that all “ self-evident truths,” though not 



44 


THE UNCONSTITUTIONALITY OF SLAVERY. 


enumerated, make a part of all laws and contracts, unless 
clearly denied, is not only indispensable to the very existence 
of civil society, but it is even indispensable to the administra- 
tion of justice in every individual case or suit, that may arise, 
out of contract or otherwise, between individuals. It would 
be impossible for individuals to make contracts at all, if it 
were necessary for them to enumerate all the “ self-evident 
truths,” that might have a bearing upon their construction 
before a judicial tribunal. All such truths are therefore taken 
for granted. And it is the same in all compacts of govern- 
ment, unless particular truths are plainly denied. And gov- 
ernments, no more than individuals, have a right to deny 
them in any case. To deny, in any case, that “self-evident 
truths ” are a part of the law, is equivalent to asserting that 
“ self-evident falsehood ” is law. 

If, then, it be a “ self-evident truth,” that all men have a 
natural and inalienable right to life, liberty and the pursuit of 
happiness, that truth constitutes a part of all our laws and all 
our constitutions, unless it have been unequivocally and au- 
thoritatively denied. 

It will hereafter be shown that this “ self-evident truth ” 
has never been denied by the people of this country, in their 
fundamental constitution, or in any other explicit or author- 
itative manner. On the contrary, it has been reiterated, by 
them, annually, daily and hourly, for the last sixty-nine years, 
in almost every possible way, and in the most solemn possible 
manner. On the 4th of July, ’76, they collectively asserted 
it, as their justification and authority for an act the most mo- 
mentous and responsible of any in the history of the country. 
And this assertion has never been retracted by us, as a peo- 
ple. We have virtually re-asserted the same truth in nearly 
every state constitution since adopted. We have virtually 
re-asserted it in the national constitution. It is a truth that 
lives on the tongues and in the hearts of all. It is true we 
have, in our practice, been so unjust as to withhold the ben- 
efits of this truth from a certain class of our fellow men. — 



THE DECLARATION OF INDEPENDENCE. 


45 


But, even in this respect, this truth has but shared the com- 
mon fate of other truths. They are generally allowed but a 
partial application. Still, this truth itself, as a truth, has 
never been denied by us, as a people, in any authentic form, 
or otherwise than impliedly by our practice in particular cases. 
If it have, say when and where. If it have not, it is still 
law ; and courts are bound to administer it, as law, impar- 
tially to all. 

Our courts would want no other authority than this truth, 
thus acknowledged, for setting at liberty any individual, other 
than one having negro blood, whom our governments, state 
or national, should assume to authorize another individual to 
enslave. Why, then, do they not apply the same law in be- 
half of the African ? Certainly not because it is not as much 
the law of his case, as of others. But it is simply because 
they will not. It is because the courts are parties to an un- 
derstanding, prevailing among the white race, but expressed 
in no authentic constitutional form, that the negro may be 
deprived of his rights at the pleasure of avarice and power. 
And they carry out this unexpressed understanding in defi- 
ance of, and suffer it to prevail over, all our constitutional 
principles of government — all our authentic, avowed, open 
and fundamental law. 


4# 



CHAPTER VI. 


THE STATE CONSTITUTIONS OF 1789. 


Of all the state constitutions, that were in force at the 
adoption of the constitution of the United States, in 1789, 
not one of them established, or recognized slavery. 

All those parts of the state constitutions, (i. e. of the old 
thirteen states,) that recognize and attempt to sanction slavery, 
have been inserted, by amendments, since the adoption of 
the constitution of the United States. 

All the states, except Rhode-Island and Connecticut, 
formed constitutions prior to 1789. Those two states went 
on, beyond this period, under their old charters.* 

The eleven constitutions formed, were all democratic in 
their general character. The most of them eminently so. 
They generally recognized, in some form or other, the 
natural rights of men, as one of the fundamental principles of 
the government. Several of them asserted these rights in 
the most emphatic and authoritative manner. Most or all of 
them had also specific provisions incompatible with slavery. 
Not one of them had any specific recognition of the existence 
of slavery. Not one of them granted any specific authority 
for its continuance. 

The only provisions or words in any of them, that could be 

•The State Constitutions ofl789 were adopted as follows : Georgia, 1777 ; South 
Carolina, 1778 $ North Carolina, 1776 j Virginia, 1776 j Maryland, 1776 $ Delaware, 
1776 j Pennsylvania, 1776 ; New Jersey, 1776$ New York, 1777$ Massachusetts, 1780 $ 
New Hampshire, 1783. 

These early Constitutions ought to be collected and published with appropriate 
notes. 



THE STATE CONSTITUTIONS OF 1789. 


47 


claimed by any body as recognitions of slavery, are the 
following, viz. 

1. The use of the words “our negroes ” in the preamble 
to the constitution of Virginia. 

2. The mention of “ slaves ” in the preamble to the con- 
stitution of Pennsylvania. 

3. The provisions, in some of the constitutions, for con- 
tinuing in force the laws that had previously been “ in force ” 
in the colonies, except when altered by, or incompatible with 
the new constitution. 

4. The use, in several of the constitutions, of the words 
“ free ” and “ freemen.” 

As each of these terms and clauses may be claimed by 
some persons as recognitions of slavery, they are worthy of 
particular notice. 

1. The preamble to the frame of government of the con- 
stitution of Virginia speaks of negroes in this connexion, 
to wit : It charges George the Third, among other things, with 
“ prompting our negroes to rise in arms among us, those 
very negroes, whom, by an inhuman use of his negative, he 
hath refused us permission to exclude by law.” 

Here is no assertion that these “ negroes ” were slaves ; 
but only that they were a class of people whom the Virgin- 
ians did not wish to have in the state, in any capacity — whom 
they wished “ to exclude by law.” The language, considered 
as legal language, no more implies that they were slaves, 
than the charge of having prompted “ our women, children, 
farmers, mechanics, or our people with red hair, or our people 
with blue eyes, or our Dutchmen, or our Irishmen to rise in 
arms among us,” would have implied that those portions of 
the people of Virginia were slaves. And especially when it 
is considered that slavery had had no prior legal existence, 
this reference to “ negroes ” authorizes no legal inference 
whatever in regard to slavery. 

The rest of the Virginia constitution is eminently demo- 
cratic. The bill of rights declares “ that all men are by 
nature equally free and independent, and have certain inher- 



48 


THE UNCONSTITUTIONALITY OF SLAVERY. 


ent rights,” * * “ namely, the enjoyment of life and 

liberty, with the means of acquiring and possessing property, 
and pursuing and obtaining happiness and safety.” 

2. The preamble to the Pennsylvania constitution used the 
word “ slaves ” in this connexion. It recited that the king 
of Great Britain had employed against the inhabitants of 
that commonwealth, “foreign mercenaries, savages and 
slaves.” 

This is no acknowledgment that they themselves had 
any slaves of their own ; much less that they were going to 
continue their slavery ; for the constitution contained pro- 
visions plainly incompatible with that. Such, for instance, is 
the following : which constitutes the first article of the 
“ Declaration of Rights of the Inhabitants,” (i. e. of all the 
inhabitants) “ of the state of Pennsylvania.” 

“ 1. That all men are born equally free and independent, 
and have certain natural, inherent and inalienable rights, 
among which are, the enjoying and defending life and liberty, 
acquiring, possessing and protecting property, and pursuing 
and obtaining happiness and safety.” 

The 46th section of the frame of government is in these 
words. 

“ The Declaration of Rights is hereby declared to be a part 
of the constitution of this commonwealth, and ought never 
to be violated on any pretence whatever.” 

Slavery was clearly impossible under these two constitu- 
tional provisions, to say nothing of others. 

2. Several of the constitutions provide that all the laws of 
the colonies, previously “ in force,” should continue in force 
until repealed, unless repugnant to some of the principles 
of the constitutions themselves. 

Maryland, New-York, New-Jersey, South Carolina, and 
perhaps one or two others had provisions of this character. 
North Carolina had none, Georgia none, Virginia none. 
The slave laws of these three latter states, then, necessarily 
fell to the ground on this change of government. 

Maryland, New-York, New-Jersey and South-Carolina had 



THE STATE CONSTITUTIONS OF 1789 . 


49 


acts upon their statute books, assuming the existence of 
slavery, and pretending to legislate in regard to it; and it 
may perhaps be argued that those laws were continued in 
force under the provision referred to. But those acts do not 
come within the above description of “ laws in force ” — and 
for this reason, viz. the acts were originally unconstitutional 
and void, as being against the charters, under which they 
were passed ; and therefore never had been legally “ in 
force,” however they might have been actually carried into 
execution as a matter of might, or of pretended law, by the 
white race. 

This objection applies to the slave acts of all the colonies. 
None of them could be continued under this provision. — 
None of them, legally speaking, were “ laws in force.” 

But in particular states there were still other reasons against 
the colonial slave acts being valid under the new constitu- 
tions. For instance. South Carolina had no statute (as has 
before been mentioned,) that designated her slaves with such 
particularity as to distinguish them from free persons ; and for 
that reason none of her slave statutes were legally “in 
force.” 

New-Jersey also was in the same situation. She had slave 
statutes ; but none designating the slaves so as to distinguish 
them from the rest of her population. She had also one or 
more specific provisions in her constitution incompatible 
with slavery, to wit : “ That the common law of England * * 
* * * shall remain in force, until altered by a future law of 
the legislature ; such parts only as are repugnant to the rights 
and privileges contained in this charter.” (Sec. 22.) 

Maryland had also, in her new constitution, a specific 
provision incompatible with the acts on her colonial statute 
book in regard to slavery, to wit : 

“ Sec. 3. That the inhabitants ” — mark the word, for it 
includes all the inhabitants — “ that the inhabitants of Mary- 
land are entitled to the common law of England, and the 
trial by jury, according to the course of that law,”&c. 


50 


THE UNCONSTITUTIONAL ITY OF SLAVERY. 


This guaranty, of “ the common law of England ” to all 
“ the inhabitants of Maryland,” without discrimination, is 
incompatible with any slave acts that existed on the statute 
book ; and the latter would therefore have become void 
under the constitution, even if they had not been previously 
void under the colonial charter. 

4. Several of these state constitutions have used the words 
“ free ” and “ freemen.” 

For instance. That of South Carolina provided, (Sec. 13,) 
that the electors of that state should be “free white men.” 
That of Georgia (Art. 11,) and that of North Carolina 
(Art. 40,) use the term “ free citizen.” That of Pennsylva- 
nia (Sec. 42,) has the term “ free denizen.” 

These four instances are the only ones I have found in all 
the eleven constitutions, where any class of persons arc 
designated by the term “ free.” And it will be seen here- 
after, from the connexion and manner in which the word is 
used, in these four cases, that it implies no recognition of 
slavery. 

Several of the constitutions, to wit, those of Georgia, 
South Carolina, North Carolina, Maryland, Delaware, Penn- 
sylvania, New-York — but not Virginia, New-Jersey, Massa- 
chusetts or New-Hampshire — repeatedly use the word “ free- 
man ” or “ freemen,” when describing the electors, or other 
members of the state. 

The only questions that can arise from the use of these 
words “free” and “freeman,” are these, viz : Are they 
used as the correlatives, or opposites of slaves ? Or are they 
used in that political sense, in which they are used in the 
common law of England, and in which they had been used in 
the colonial charters, viz., to describe those persons possessed 
of the privilege of citizenship, or some corporate franchise, 
as distinguished from aliens, and those not enjoying franchises, 
although free from personal slavery ? 

If it be answered, that they are used in the sense first 



THE STATE CONSTITUTIONS OE 1789. 


51 


mentioned, to wit, as the correlatives or opposites of slavery — 
then it would be argued that they involved a recognition, at 
least, of the existence of slavery. 

But this argument — whatever it might be worth to support 
an implied admission of the actual existence of slavery — 
would be entirely insufficient to support an implied admission 
either of its legal, or its continued existence. Slavery is so 
entirely contrary to natural right ; so entirely destitute of 
authority from natural law ; so palpably inconsistent with all 
the legitimate objects of government, that nothing but express 
and explicit provision can be recognized, in law, as giving it 
any sanction. No hints, insinuations, or unnecessary impli- 
cations can give any ground for so glaring a departure from, 
and violation of all the other, the general, and the legitimate 
principles of the government. If, then, it were admitted 
that the words “free” and “freemen” were used as the 
correlatives of slaves, still, of themselves, the words would 
give no direct or sufficient authority for laws establishing or 
continuing slavery. To call one man free, gives no legal 
authority for making another man a slave. And if, as in the 
case of these constitutions, no express authority for slavery 
were given, slavery would be as much unconstitutional as 
though these words had not been used. The use of these 
words in that sense, in a constitution, under which all persons 
are presumed to be free, would involve no absurdity, although 
it might be gratuitous and unnecessary. 

It is a rule of law, in the construction of all statutes, con- 
tracts and legal instruments whatsoever — that is, those which 
courts design, not to invalidate, but to enforce — that where 
words are susceptible of two meanings, one consistent, and 
the other inconsistent, with liberty, justice and right, that 
sense is always to be adopted, which is consistent with right, 
unless there be something in other parts of the instrument 
sufficient to prove that the other is the true meaning. In the 
case of no one of all these early state constitutions, is there 
any thing in the other parts of them, to show that these 



52 


THE UNCONSTITUTIONALITY OF SLAVERY. 


words “ free ” and “ freemen ” are used as the correlatives of 
slavery. The rule of law, therefore, is imperative that they 
must be regarded in the sense consistent with liberty and 
right. 

If this rule, that requires courts to give an innocent con- 
struction to all words that are susceptible of it, were not im- 
perative, courts might, at their own pleasure, pervert the 
honest meaning of the most honest statutes and contracts, 
into something dishonest, for there are almost always words 
used in the most honest legislation, and in the most honest 
contracts, that, by implication or otherwise, are capable of 
conveying more than one meaning, and even a dishonest 
meaning. If courts could lawfully depart from the rule, that 
requires them to attribute an honest meaning to all language 
that is susceptible of such a meaning, it would be nearly 
impossible to frame either a statute or a contract, which the 
judiciary might not lawfully pervert to some purpose of in- 
justice. There would obviously be no security for the honest 
administration of any honest law or contract whatsoever. 

This rule applies as well to constitutions as to contracts 
and statutes ; for constitutions are but contracts between the 
people, whereby they grant authority to, and establish law for 
the government. 

What other meaning, then, than as correlatives of slavery, 
are the words “free” and “freemen” susceptible of, as 
they are used in the early state constitutions ? 

Among the definitions given by Noah Webster are these : 

“ Freeman. One who enjoys, or is entitled to a franchise 
or peculiar privilege ; as the freemen of a city or state.” 

“ Free. Invested with franchises ; enjoying certain immu- 
nities ; with of — as a man free of the city of London.” 

“ Possessing without vassalage, or slavish conditions ; as a 
man free of his fam — ” 

In England, and in the English law throughout, as it 
existed before and since the emigration of our ancestors to 
this country, the words “ free ” and “ freemen ” were politi- 



THE STATE CONSTITUTIONS OF 1789 . 


53 


cal terms in the most common use ; and employed to designate 
persons enjoying some franchise or privilege, from the most 
important one of general citizenship in the nation, to the 
most insignificant one in any incorporated city, town or com- 
pany. For instance : A man was said to be a “free British 
subject” — meaning thereby that he was a naturalized or native 
born citizen of the British government, as distinguished from 
an alien, or person neither naturalized nor native born. 

Again. A man was said to be “ free of a particular trade 
in the city of London ” — meaning thereby, that by the bye- 
laws of the city of London, he was permitted to follow that 
trade — a privilege which others could not have without 
having served an apprenticeship in the city, or having pur- 
chased the privilege of the city government. 

The terms “ free ” and “ freemen ” were used with refer- 
ence to a great variety of privileges, which, in England, were 
granted to one man, and not to another. Thus members of 
incorporated companies were called “ freemen of the com- 
pany,” or “free members of the company ;” and were said 
to be “free of the said company.” The citizens of an in- 
corporated city were called “ the freemen of the city,” as 
“ freemen of the city of London.” 

In Jacob’s Law Dictionary the following definitions, among 
others, are given of the word “ freemen.” 

“ Freeman — liber homo.” * * “In the distinction of a 
freeman from a vassal under the feudal policy, liber homo 
was commonly opposed to vassus, or vassalus ; the former 
denoting an allodial proprietor ; the latter one who held of a 
superior.” 

“ The title of a freeman is also given to any one admitted 
to the freedom of a corporate town, or of any other corpo- 
rate body, consisting, among other members, of those called 
freemen.” 

“ There are three ways to be a freeman of London ; by 
servitude of an apprenticeship ; by birthright, as being the 
5 



54 


THE UNCONSTITUTIONALITY OF SLAVERY. 


son of a freeman ; and by redemption, i. e. by purchase, 
under an order of the court of aldermen.” 

“ The customs of the city of London shall be tried by the 
certificate of the Mayor and Aldermen, * * * as the 
custom of distributing the effects of freemen deceased : of 
enrolling apprentices, or that he who is free of one trade may 
use another.” 

“ Elections of aldermen and common-councilmen are to 
be by freemen householders.” 

“ An agreement on marriage, that the husband shall take 
up the freedom of London, binds the distribution of the 
effects.” 

The foregoing and other illustrations of the use of the 
words “ free ” and “ freemen,” may be found in Jacob’s Law 
Dictionary, under the head of Freeman, London, &c. 

And this use of these words has been common in the 
English laws for centuries. The term “ freeman ” is used 
in Magna Charta, (1215). The English statutes abound 
with the terms, in reference to almost every franchise or 
peculiar privilege, from the highest to the lowest, known to 
the English laws. It would be perfectly proper, and in con- 
sonance with the legal meaning and common understanding 
of the term, to say of Victoria, that “ she is free of the throne 
of England,” and of a cobbler, that he “ is free of his trade 
in the city of London.” 

But the more common and important signification of the 
words is to designate the citizens, native or naturalized, and 
those specially entitled, as a matter of political and acknow- 
ledged right, to participate in, or be protected by the govern- 
ment, as distinguished from aliens, or persons attainted, or 
deprived of their political privileges as members of the state. 
Thus they use the term “ free British subject ” — “ freeman 
of the realm,” &c. In short, the terms, when used in politi- 
cal papers, have a meaning very nearly, if not entirely synony- 
mous, with that which we, in this country, now give to the 
word citizen. 



THE STATE CONSTITUTIONS OF 1789 . 


55 


But throughout the English law, and among all the variety 
of ways, in which the words “ free ” and “ freemen ” are 
used, as legal terms, they are never used as the correlatives, 
or opposites of slaves or slavery — and for the reason that 
they have in England no such persons or institutions, known 
to their laws, as slaves or slavery. The use of the words 
“ free ” and “ freemen,” therefore, do not in England at all 
imply the existence of slaves or slavery. 

This use of the words “ free ” and “ freemen,” which is 
common to the English law, was introduced into this country 
at its first settlement, in all, or very nearly all the colonial 
charters, patents, &c. and continued in use, in this sense, 
until the time of the revolution ; and, of course, until the 
adoption of the first state constitutions.* 

The persons and companies, to whom the colonial charters 
were granted, and those who were afterwards to be admitted 
as their associates, were described as “ freemen of said 
colony,” “ freemen of said province,” “ freeman of said 
company,” “ freemen of the said company and body politick,” 
&c. (See charter of Rhode Island.) 

Many, if not all the charters had a provision similar in 
substance to the following in the charter to Rhode Island, 
viz : 

“ That all and every the subjects of us, our heirs and suc- 
cessors,” (i. e. of the king of England granting the charter,) 
“ which are already planted and settled within our said colony 
of Providence Plantations, or which shall hereafter go to 
inhabit within the said colony, and all and every of their 
children which have been born there, or which shall happen 
hereafter to be born there, or on the sea going thither, or 
returning from thence, shall have and enjoy all liberties and 
immunities of free and natural subjects, within any of the 
dominions of us, our heirs and successors, to all intents, con- 


* Since that time the words " free ” and 11 freemen 99 have been gradually falling 
into disuse, and the word citizen been substituted — doubtless for the reason that it 
is not pleasant to our pride or our humanity to use words, one of whose significa- 
tions serves to suggest a contrast between ourselves and slaves. 



56 


THE UNCONSTITUTIONALITY OF SLAVERY. 


structions and purposes whatsoever, as if they and every of 
them were born within the realm of England.” 

The following enactment of William Penn, as proprietary 
and Governor of the Province of Pennsylvania and its ter- 
ritories, illustrates one of the common uses of the word 
“ freeman,” as known to the English law, and as used in 
this country prior to the revolution — that is, as distinguishing 
a native born citizen, and one capable of holding real estate, 
<fcc. from a foreigner, not naturalized, and on that account 
subject to certain disabilities, such as being incompetent to 
hold real estate. 

“ And forasmuch as it is apparent that the just encour- 
agement of the inhabitants of the province, and territories 
thereunto belonging, is likely to be an effectual way for the 
improvement thereof ; and since some of the people that live 
therein and are likely to come thereunto, are foreigners, and 
so not freemen, according to the acceptation of the laws of 
England, the consequences of which may prove very detri- 
mental to them in their estates and traffic, and so injurious 
to the prosperity of this province and territories thereof. Be 
it enacted, by the proprietary and governor of the province 
and counties aforesaid, by and with the advice and consent 
of the deputies of the freemen thereof, in assembly met, 
That all persons who are strangers and foreigners, that do 
now inhabit this province and counties aforesaid, that hold 
land in fee in the same, according to the law of a freeman, 
and who shall solemnly promise, within three months after 
the publication thereof, in their respective county courts where 
they live, upon record, faith and allegiance to the king of 
England and his heirs and successors, and fidelity and lawful 
obedience to the said William Penn, proprietary and govern- 
or of the said province and territories, and his heirs and as- 
signs, according to the king’s letters, patents and deed aforesaid, 
shall be held and reputed freemen of the province and coun- 
ties aforesaid, in as ample and full a manner as any per- 
son residing therein. And it is hereby further enacted, by 
the authority aforesaid, That when at any time any person, 
that is a foreigner, shall make his request to the proprietary 
and governor of this province and territories thereof, for the 



THE STATE CONSTITUTIONS OF 1789. 


57 


aforesaid, freedom, the said person shall be admitted on the 
conditions herein expressed, paying at his admission twenty 
shillings sterling, and no more, any thing in this law, or any 
other law, act or thing in this province, to the contrary in 
any wise notwithstanding.” 

“ Given at Chester, ” &c., “ under the hand and broad seal 
of William Penn, proprietary and governor of this province 
and territories thereunto belonging, in the second year of his 
government, by the king’s authority. W. Penn. ” * 

Up to the time of our revolution, the only meaning which 
the words “ free ” and “ freemen ” had, in the English law, 
in the charters granted to the colonies, and in the important 
documents of a political character, when used to designate 
one person as distinguished from another, was to designate a 
person enjoying some franchise or privilege, as distinguished 
from aliens or persons not enjoying a similar franchise. They 
were never used to designate a free person as distinguished 
from a slave — for the very sufficient reason that all these fun- 
damental laws presumed that there were no slaves. 

Was such the meaning of the words “ free ” and free- 
men,” as used in the constitutions adopted prior to 1789, in 
the States of Georgia, North and South Carolina, Maryland, 
Delaware and New York? 

The legal rule of interpretation before mentioned, viz : that 
an innocent meaning must be given to all words that are sus- 
ceptible of it — would compel us to give the words this mean- 
ing, instead of a meaning merely correlative with slavery, 
even if we had no other ground than the rule alone, for so 
doing. But we have other grounds. For instance : — Several 
of these constitutions have themselves explicitly given to the 
words this meaning. While not one of them have given 
them a meaning correlative with slaves, inasmuch as none of 
them purport either to establish, authorize, or even to know 
of the existence of slavery. 


'Dallas’s edition of the Laws of Pennsylvania, vol. 1, Appendix, page 25. 

5* 



58 


THE UNCONSTITUTIONALITY OF SLAVERY. 


The constitution of Georgia (adopted in 1777) evidently 
uses the word “ free ” in this sense, in the follow ing article : 

“Art. 11. No person shall be entitled to more than one 
vote, which shall be given in the county where such person 
resides, except as before excepted ; nor shall any person 
who holds any title of nobility, be entitled to a vote, or be 
capable of serving as a representative, or hold any post of 
honor, profit, or trust, in this State, while such person 
claims his title of nobility ; but if the person shall give up 
such distinction, in the manner as may be directed by any 
future legislature, then, and in such case . he shall be entitled 
to a vote, and represent, as before directed, and enjoy all the 
other benefits of a free citizen/’ 

The constitution of North Carolina, (adopted in 1776), 
used the word in a similar sense, as follows : 

“ 40. That every foreigner, who comes to settle in this 
State, having first taken an oath of allegiance to the same, 
may purchase, or by other just means acquire, hold, and trans- 
fer land, or other real estate, and after one year’s residence 
be deemed a free citizen.” 

This constitution also repeatedly uses the word “ free- 
man ; ” meaning thereby “ a free citizen,” as thus defined. 

The constitution of Pennsylvania, (adopted in 1776,) uses 
the word in the same sense : 

“ Sec. 42. Every foreigner, of good character, who comes 
to settle in this State, having first taken an oath or affirma- 
tion of allegiance to the same, may purchase, or by other just 
means acquire, hold and transfer land or other real estate ; 
and after one year’s residence, shall be deemed a free deni- 
zen thereof, and entitled to all the rights of a natural born 
subject of this state, except that he shall not be capable of 
being elected a representative until after two year’s resi- 
dence. ” 

The constitution of New York, (adopted in 1777,) uses 
the word in the same manner : 



THE STATE CONSTITUTIONS OF 1789 . 


59 


“ Sec. 6. That every male inhabitant of full age, who 
has personally resided in one of the counties of this state 
for six months, immediately preceding the day of election, 
shall at such election be entitled to vote for representatives 
of the said county in assembly, if during the time aforesaid 
he shall have been a freeholder, possessing a freehold of the 
value of twenty pounds, within the said county, or have rent- 
ed a tenement therein of the yearly value of forty shillings, 
and been rated and actually paid taxes to the State. Provi- 
ded always , That every person who now is a freeman of the 
city of Albany, or who was made a freeman of the city of 
New York, on or before the fourteenth day of October, in 
the year of our Lord one thousand seven hundred and seven- 
ty-five, and shall be actually and usually resident in the said 
cities respectively, shall be entitled to vote for representatives 
in assembly within his place of residence.” 

The constitution of South Carolina, (formed in 1778,) 
uses the word “ free ” in a sense which may, at first thought, 
be supposed to be different from that in which it is used in 
the preceding cases : 

Sec. 13. The qualification of electors shall be that “eve- 
ry free white man, and no other person,” &c., “ shall be 
deemed a person qualified to vote for, and shall be capable of 
being elected a representative.” 

It may be supposed that here the word “ free ” is used as 
the correlative of slavery ; that it presumes the “ whites ” to 
be “ free ; ” and that it therefore implies that other persons 
than “ white ” may be slaves. Not so. No other parts of 
the constitution authorize such an inference ; and the implica- 
tion from the words themselves clearly is, that some “ white ” 
persons might not be “ free.” The distinction implied is 
between those “ white ” persons that were “ free,” and 
those that were not “ free.” If this were not the distinction 
intended, and if all “ white ” persons were “ free,” it would 
have been sufficient to have designated the electors simply as 
“ white ” persons, instead of designating them as both “ free ” 
and “ white. ” If therefore it were admitted that the word 



60 


THE UNCONSTITUTIONALITY OF SLAVERY. 


“ free,” in this instance, were used as the correlative of 
slaves, the implication would be that some “ white ” persons 
were, or might be slaves. There is therefore no alternative but 
to give to the word “ free,” in this instance, the same meaning 
that it has in the constitutions of Georgia, North Carolina 
and Pennsylvania. 

In 1704 South Carolina passed an act entitled, “An act 
for making aliens free of this part of the Province .” — 
This statute remained in force until 1784, when it was re- 
pealed by an act entitled “ An act to confer the right of cit- 
izenship on aliens.” * 

One more example of this use of the word “freeman.” 
The constitution of Connecticut, adopted as late as 1818, has 
this provision : 

“ Art. 6. Sec. 1. All persons who have been, or shall 
hereafter , previous to the ratification of this constitution, he 
admitted freemen, according to the existing laws of this State, 
shall be electors.” 

Surely no other proof can be necessary of the meaning of 
the words “free” and “freeman,” as used in the constitu- 
tions existing in 1789 ; or that the use of those words furnish 
no implication in support of either the exisitence, or the con- 
stitutionality of slavery, prior to the adoption of the constitu- 
tion of the United States in that year. 

I have found, in none of the State constitutions before 
mentioned, (existing in 1789,) any other evidence or inti- 
mation of the existence of slavery, than that already com- 
mented upon and refuted. And if there be no other, then it 
is clear that slavery had no legal existence under them. And 
there was consequently no constitutional slavery in the coun- 
try up to the adoption of the constitution of the United 
States. 


Cooper’s edition of the Laws of South Carolina, vols. 2 and 4. “ Aliens, 


CHAPTER VII. 


THE ARTICLES OF CONFEDERATION. 


The Articles of Confederation, (formed in 1778,) contain- 
ed no recognition of slavery. The only words in them, that 
could be claimed by any body as recognizing slavery, are the 
following, in Art. 4, Sec. 1. 

“ The better to secure and perpetuate mutual friendship and 
intercourse among the people of the different States in this 
Union, the free inhabitants of each of these States, paupers, 
vagabonds and fugitives from justice excepted, shall be enti- 
tled to all the privileges and immunities of free citizens in 
the several States ; and the people of each State shall have 
free ingress and regress to and from any other State, and shall 
enjoy therein all the privileges of trade and commerce, sub- 
ject to the same duties, impositions and restrictions, as the 
inhabitants thereof respectively.” 

There are several reasons why this provision contains no 
legal recognition of slavery. 

1. The true meaning of the word “ free,” as used in the 
English law, in the colonial charters, and in the State consti- 
tutions up to this time, when applied to persons, was to de- 
scribe citizens, or persons possessed of franchises, as distin- 
guished from aliens or persons not possessed of the same fran- 
chises. Usage, then, would give this meaning to the word 
“ free ” in this section. 

2. The rules of law require that an innocent meaning 
should be given to all words that will bear an innocent mean- 
ing. 

3. The Confederation was a league between states in their 
corporate capacity ; and not, like the constitution, a govern- 


62 


THE UNCONSTITUTIONALITY OF SLAVERY. 


ment established by the people in their individual character. 
The confederation, then, being a league between states or 
corporations, as such, of course recognized nothing in the 
character of the state governments except what their corpor- 
ate charters or state constitutions authorized. And as none 
of the state constitutions of the day recognized slavery, the 
confederation of the state governments could not of course 
recognize it. Certainly none of its language can, consistently 
with legal rules, have such a meaning given to it, when it is 
susceptible of another that perfectly accords with the sense 
in which it is used in the constitutions of the states, that 
were parties to the league. 

4. No other meaning can be given to the word “free ” in 
this case, without making the sentence an absurd, or, at least, 
a foolish and inconsistent one. For instance, — The word 
“ free ” is joined to the word “ citizen. ” What reason could 
there be in applying the term “ free ” to the word “ citizen,” 
if the word “ free ” were used as the correlative of slavery ? 
Such an use of the word would imply that some of the 
“ citizens ” were, or might be slaves — which would be an ab- 
surdity. But used in the other sense, it implies only that 
some citizens had franchises not enjoyed by others ; such, 
perhaps, as the right of suffrage, and the right of being elect- 
ed to office ; which franchises were only enjoyed by a part of 
the “ citizens.” All who were born of English parents, for 
instance, were “ citizens, ” and entitled to the protection of 
the government, and freedom of trade and occupation, &c., 
&c., and in these respects were distinguished from aliens. — 
Yet a property qualification was necessary, in some, if not 
all the States, to entitle even such to the franchises of suf- 
frage, and of eligibility to office. 

The terms “ free inhabitants ” and “ people ” were proba- 
bly used as synonymous either with “ free citizens,” or with 
“ citizens ” not “ free ” — that is, not possessing the franchises 
of suffrage and eligibility to office. 

Mr. Madison, in the 42d No. of the Federalist, in com- 



THE ARTICLES OF CONFEDERATION. 


63 


menting upon the power given to the general government by 
the new constitution, of naturalizing aliens, refers to this 
clause in the Articles of Confederation ; and takes it for 
granted that the word “ free ” was used in that political sense, 
in which I have supposed it to be used — that is, as distin- 
guishing “ citizens” and the “ inhabitants ” or “ people ” pro- 
per, from aliens and persons not allowed the franchises en- 
joyed by the “ inhabitants ” and “ people ” of the States. — 
Even the privilege of residence he assumes to be a franchise 
entitling one to the denomination of “ free. ” 

He says : “ The dissimiliarity in the rules of naturaliza- 
tion,” (i. e. in the rules established by the separate states, 
for under the confederation each state established its own 
rules of naturalization,) “ has long been remarked as a fault in 
our system, and as laying a foundation for intricate and deli- 
cate questions. In the fourth article of confederation, it is 
declared, ‘ that the free inhabitants of each of these states, 
paupers, vagabonds, and fugitives from justice excepted, shall 
be entitled to all the privileges and immunities of free citi- 
zens in the several states ; and the people of each state 
shall, in every other, enjoy all the privileges of trade and 
commerce,’ &c. There is a confusion of language here, 
which is remarkable. Why the terms free inhabitants are 
used in one part of the article, free citizens in another, and 
people in another ; or what was meant by superadding to ‘all 
privileges and immunities of free citizens,’ ‘ all the privileges 
of trade and commerce,’ cannot easily be determined. It 
seems to be a construction scarcely avoidable, however, that 
those who come under the denomination of free inhabitants 
of a state, although not citizens of such state, are entitled, 
in every other state, to all the privileges of free citizens of 
the latter ; that is, to greater privileges than they may be en- 
titled to in their own state ; so that it may be in the power 
of a particular state, or rather every state is laid under the 
necessity, not only to confer the rights of citizenship in other 
states upon any whom it may admit to such rights within 
itelf, but upon any whom it may allow to become inhabitants 
within its jurisdiction. But were an exposition of the term 
‘inhabitant’ to be admitted, which would confine the stipu- 
lated privileges to citizens alone, the difficulty is diminished 


64 


THE UNCONSTITUTIONALITY OF SLAVERY. 


only, not removed. The very improper power would still be 
retained by each state, of naturalizing aliens in every other 
state. In one state, residence for a short time confers all 
the rights of citizenship ; in another, qualifications of greater 
importance are required. An alien, therefore, legally inca- 
pacitated for certain rights in the latter, may, by previous res- 
idence only in the former, elude his incapacity, and thus the 
law of one state be preposterously rendered paramount to 
the laws of another, within the jurisdiction of the other. 

“We owe it to mere casualty, that very serious embarrass- 
ments on this subject have been hitherto escaped. By the 
laws of several states, certain description of aliens, who had 
rendered themselves obnoxious, were laid under interdicts in- 
consistent, not only with the rights of citizenship, but with 
the privileges of residence. What would have been the con- 
sequence, if such persons, by residence, or otherwise, had ac- 
quired the character of citizens under the laws of another 
state, and then asserted their rights as such, both to residence 
and citizenship, within the state proscribing them ? What- 
ever the legal consequences might have been, other conse- 
quences would probably have resulted of too serious a nature, 
not to be provided against. The new constitution has ac- 
cordingly, with great propriety, made provision against them, 
and all others proceeding from the defect of the confedera- 
tion on this head, by authorizing the general government to 
establish an uniform rule of naturalization throughout the 
United States. ” 

Throughout this whole quotation Mr. Madison obviously 
takes it for granted that the word “ free ” is used in the 
articles of confederation, as the correlative of aliens. — 
And in this respect he no doubt correctly represents the 
meaning then given to the word by the people of the United 
States. And in the closing sentence of the quotation, he vir- 
tually asserts that such is the meaning of the word “ free ” 
in “ the new constitution. ” 



CHAPTER VIII. 


THE CONSTITUTION OF THE UNITED STATES. 

We come now to the period commencing with the adop- 
tion 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 constitution- 
al principles of their governments. And the question now is, 
whether it was constitutionally established, authorized or sanc- 
tioned 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 con- 
tinuing it in existenceVluring their pleasure. And this is re- 
ally the only question arising out of the constitution of the 
United States on this subject, viz : whether it did thus recog- 
nize 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 consti- 
tutional existence, under the state constitutions, prior to the 
adoption of the constitution of the United States, then it is 
6 



66 


THE UNCONSTITUTIONALITY OF SLAVERY. 


absolutely certain that the constitution of the United States 
did not recognize it as a constitutional institution ; for it can- 
not, of course, be pretended that the United States constitu- 
tion recognized, as constitutional, any state institution that 
did not constitutionally exist. 

Even if the constitution of the United States had intend- 
ed 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 con- 
stitution 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 consti- 
tution 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 examin- 
ation of the state constitutions themselves, that they had real- 
ly conferred no such power upon the legislatures. And this 
principle applies with the same force to laws that would arbi- 
trarily 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 re- 
cognize 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 consti- 
tutions 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 de- 



THE CONSTITUTION OF THE UNITED STATES. 


67 


cided 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, cer- 
tainly took effect upon, and made citizens of all “ the peo- 
ple 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 exist-* 
ing, authorized no slavery at all, the constitution of the Uni- 
ted 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 gov- 
ernments to reduce any of them to slavery. They were 
thenceforth citizens of a higher government, under a consti- 
tution 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 gov- 
ernment, 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 at- 
tempt to show, specifically from its provisions, that the con- 
stitution of the United States, not only does not recognize or 
sanction slavery, as a legal institution, but that, on the con- 
trary, it presumes all men to be free ; that it positively denies 
the right of property in man ; and that it, of itself , makes it 



68 


THE UNCONSTITUTIONALITY OF SLAVERY. 


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 in- 
tentions of the constitution are the only njeans 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 “ in- 
tention ,” when speaking of the other grants and sanctions of 
the constitution. We do not say, for example, that the con- 
stitution 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 child- 
ish to say merely that it intended to authorize them “ to coin 
money,” and “ to declare war,” when the language author- 
izing them to do so, is full, explicit and positive. Why, then, 
in the case of slavery, do men say merely that the constitu- 
tion 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 constitu- 
tion intended to sanction it ; and they then attempt to sup- 



THE CONSTITUTION OF THE UNITED STATES. 


69 


port 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, circumstan- 
tial and historical evidence, they attempt to enforce upon the 
mind the conclusion that, as matter of fact, such was the in- 
tention of those who drafted the constitution ; and thence 
they finally infer that such was the intention of the constitu- 
tion itself. 

The error and fraud of this whole procedure — and it is one 
purely of error and fraud — consists in this — that it artfully sub- 
stitutes the supposed intentions of those who drafted the con- 
stitution, for the intentions of the constitution itself ; and, sec- 
ondly, it personifies the constitution as a crafty individual ; ca- 
pable of both open and secret intentions ; capable of legally 
participating in, and giving effect to all the subtleties and dou- 
ble dealing of knavish men ; and as actually intending to secure 
slavery, while openly professing to “ secure and establish liber- 
ty and justice.” It personifies the constitution as an individu- 
al 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 mo- 
ment 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 mo- 
tives 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 “ inten- 
tions ,” 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 inten- 
tions are no guide to its legal meaning — as the advocates of 
slavery all assume ; but its legal meaning is the sole guide to 
6 * 


70 


THE UNCONSTITUTIONAL ITT OF SLAVERY, 


its intentions. This distinction is all important to be observe 
ed ; for if we can gratuitously assume the intentions of a le- 
gal 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 le- 
gal meaning of the words of an instrument is, therefore, nec- 
essarily our only guide to its intentions. 

In ascertaining the legal meaning of the words of the con- 
stitution, 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 jus- 
tice and natural right, (like that to sanction slavery,) can be 
ascribed to the constitution, unless that intention be express- 
ed 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 compe- 
tent 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 nat- 
ural right, and those necessary to legalize things that are con- 
sistent with natural right. The latter may be sanctioned by 
implication and inference ; the former only by inevitable im- 
plication, or by language that is full, definite, express, explic- 
it, unequivocal, and whose unavoidable import is to sanction 
the specific wrong intended. 

To assert, therefore, that the constitution intended to sanc- 
tion slavery, is, in reality, equivalent to asserting that the nec- 
essary 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 sane- 



THE CONSTITUTION OF THE UNITED STATES. 


71 


tion 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, de- 
scription, 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 con- 
stitution 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 con- 
stitution 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 assum- 
ing 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 as- 
sumption 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. 


72 


THE UNCONSTITTJTIONALITY OF SLAVERY. 


But legal rules of interpretation entirely forbid and disal- 
low 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 adminis- 
tration of the justice arising out of any class of legal instru- 
ments 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 instru- 
ments, 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 stat- 
ute, may have different intentions in voting for it, and may 
therefore differ, or pretend to differ, as to its meaning. The 



THE CONSTITUTION OF THE UNITED STATES. 


73 


people of a nation may establish a compact of government. 
The motives of one portion may be to establish liberty, equal- 
ity 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 instru- 
ments, 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 le- 
gal principles, and are for that reason as inflexible as any 
other legal principles whatever. They are also simple, intel- 
ligible, natural, obvious. Every body are presumed to know 
them, as they are presumed to know any other legal princi- 
ples. 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 constitu- 
tion, 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 des- 



74 


THE UNCONSTITUTIONALITY OF SLAVERY. 


potic ; all certainty as to the legal meaning of instruments 
would be destroyed ; and the administration of justice, ac- 
cording to the true meaning of contracts, statutes and consti- 
tutions, 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 implica- 
tion, 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 suscepti- 
ble 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 incon- 
sistent 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 legisla- 
ture 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 natu- 
ral 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 ap- 
point, and that the legislature should approve the appoint- 
ment of no one for the office of judge, whose integrity they 



THE CONSTITUTION OF THE UNITED STATES. 


75 


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 suc- 
cumbed 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 ad- 
minister, 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 ex- 
pressed 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 al- 
ready stated,) is laid down by the supreme court of the Uni- 
ted States in these words : 

“ Where rights are infringed, where fundamental principles 
are overthrown, where the general system of the law is depart- 
ed from, the legislative intention must be expressed with irre- 
sistible clearness, to induce a court of justice to suppose a 



76 


THE UNCONSTITUTIONALITY OF SLAVERY. 


design to effect such objects .” — ( United States vs. Fisher et 
at., 2 Crunch, 390.)* 

Such has become the settled doctrine of courts. And al- 
though 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 unflinch- 
ingly 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, f 

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 con- 
tracts or laws, to use language so as to exclude every possible 
implication in favor of wrong, if courts were allowed to re- 
sort to such implications. The law therefore excludes them ; 
that is, the ends of justice — the security of men’s rights un- 
der their honest contracts, and under honest legislative en- 
actments — make it imperative upon courts of justice to as- 
scribe 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 up- 
holding what was contrary to natural right, and could employ 


*This language of the Supreme Court contains an admission of the truth of 
the charge just made against judges, viz: that rather than lose their offices, 
they will violate what they know to be law, in subserviency to the legislatures on 
whom they depend 5 for it admits, 1st, that the preservation of men’s rights is the 
vital principle of law, and, 2d, that courts, (and the Supreme Court of the United 
States in particular,) will trample upon that principle at the bidding of the legisla- 
ture, when the mandate comes in the shape of a statute of such 11 irresistible clear- 
ness,” that its meaning cannot be evaded. 

f“ Laws are construed strictly to save a right.” — Whitney et al. vs. Emmett et al., 

1 Baldwin, C. C. R. 316. 

“ No law will make a construction do wrong 5 and there are some things which the 
law favors, and some it dislikes ; it favoreth those things that come from the order of 
nature.” — Jacob’s Law Dictionary , title Law. 



THE CONSTITUTION OF THE UNITED STATES. 


77 


their ingenuity in spying out some implied or inferred author- 
ity, 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 ad- 
ministration 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 stat- 
utes 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 jus- 
tice 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 unne- 
cessary 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, ap- 
ply 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 evi- 
dence 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 al- 
together. But as courts do not claim the right of invalidating 
statutes and constitutions, they will not admit evidence, exte- 
7 



78 


THE UNCONSTITUTIONALITY OF SLAVERY. 


rior 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 gen- 
eral system of the law is departed from, the legislative inten- 
tion 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 enfor- 
ced, 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, in- 
stead 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 natu- 
ral right,) are laws unto the tribunals that adjudicate upon 
them. All the essential principles that enter into the ques- 
tion of obligation, in the case of a private contract, or a le- 
gislative enactment, enter equally into the question of the ob- 
ligation 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 



THE CONSTITUTION OF THE UNITED STATES. 


79 


they should be restiained from perverting the meaning of a 
private contract, or a legislative enactment ? Obviously writ- 
ten compacts of government could not be upheld for a day, 
if it were understood by the mass of the people that the ju- 
diciary 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 constitu- 
tion, and see what crimes might be held to be authorized by 
them, if their meaning were not to be ascertained and re- 
stricted 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 sus- 
ceptible ; and such is therefore the extent of their legal mean- 
ing. If courts could go beyond the innocent and necessary 
meaning of the words, and imply or infer from them an au- 
thority for anything contrary to natural right, they could im- 
ply 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 mur- 
der, 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 com- 
pacts of government. It is itself law ; and there is no right 
or power among men to destroy its obligation. 



80 


THE UNCONSTITUTIONALITY OF SLAVERY. 


Take another case. The constitution declares that “ Con- 
gress shall have power to regulate commerce with foreign na- 
tions, 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 can- 
not be controlled by the states. Yet it gives congress no 
constitutional authority to legalize any commerce inconsis- 
tent 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 inconsis- 
tent with natural right — as for the purposes of murder. 

At natural law, and on principles of natural right, a per- 
son, who should sell to another a weapon or a poison, know- 
ing that it would, or intending that it should be used for the 
purpose of murder, would be legally an accessary to the mur- 
der that should be committed with it. And if the grant to 
congress of a “ power to regulate commerce,” can be stretch- 
ed beyond the innocent meaning of the words — beyond the 
power of regulating and authorizing a commerce that is con- 
sistent 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 re- 
straint 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 mean- 
ing to all language that will possibly bear an innocent mean- 
ing ? and to ascribe only an innocent meaning to language 
whose mere verbal import might be susceptible of both an 



THE CONSTITUTION OF THE UNITED STATES. 


81 


innocent and criminal meaning? If this rule of interpreta- 
tion could be departed from, there is hardly a power granted 
to congress, that might not lawfully be perverted into an au- 
thority 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 ser- 
vice 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 sanc- 
tion 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 “ ser- 
vice 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 “ claim- 
ed ,” 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 re- 
cognized by the state laws as “ servants,” constituted a nu- 
merous class. The statute books of the states abounded with 
statutes in regard to “ servants.” Many seem to have been 
7* 



82 


THE UNCONSTITUTIONALITY OF SLAVERY. 


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 char- 
acter, 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 pro- 
minent 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 slight- 
est apology for pretending that there was not a sufficient class 
for the words “ service or labor ” to refer to, without suppos- 
ing the existence of slaves.* 

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, 


# In the convention that framed the constitution, when this clause was under dis- 
cussion, “ servants ” were spoken of as a distinct class from “slaves.” For in- 
stance, “ Mr. Butler and Mr. Pickney moved to require 1 fugitive slaves and servants 
to be delivered up like criminals/ ” Mr. Sherman objected to delivering up either 
slaves or servants. He said he u saw no more propriety in the public seizing and 
surrendering a slave or servant , than a horse .” — Madison Papers, p. 1447-8. 

The language finally adopted shows that they at last agreed to deliver up 11 ser- 
vants ,” but not 1 1 slaves ” — for as the word “servant” does not mean “ slave,” the 
word u service ” does not meau slavery. 

These remarks in the convention are quoted, not because the intentions of the 
convention are of the least legal consequence whatever 5 but to rebut the silly argu- 
ments of those who pretend that the convention, and not the people, adopted the 
constitution — and that the convention did not understand the legal difference be- 
tween the word “ servant” and u slave/’ and therefore used the word “service,” in 
this clause, as meaning slavery. 


/ 



THE CONSTITUTION OF THE UNITED STATES. 


83 


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 es- 
sential 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 com- 
pelled 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 at- 
tendant 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 latvs 
thereof.” 

The “ laws ” take no note of the fact whether a slave “ la- 
bors,” 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 re- 
cognizes 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 slave- 
ry ; and not being necessarily slavery, the words cannot, in 
this case, be strained beyond their necessary meaning, to 



84 


THE UNCONSTITUTIONALITY OF SLAVERY. 


make them sanction a wrong. The law will not allow words 
to be strained a hair’s breadth beyond their necessary mean- 
ing, to make them authorize a wrong. The stretching, if 
there he 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 re- 
cognized, by the laws, as legitimate, and consistent with nat- 
ural 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 pro- 
perty 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 con- 
sistent, both with the constitution of the state, and the con- 
stitution of the United States. None others are “ laws,” cor- 
rectly 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 CONSTITUTION OF THE UNITED STATES. 


85 


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, with- 
out 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 constitu- 
tion. 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 con- 
stitutional. If it could, any act, purporting to hold “ per- 
sons to service or labor,” would necessarily be constitutional, 
without any regard to the “ persons ” so held, or the condi- 
tions on which they were held. It would be constitutional, 
solely because it purported to hold persons to service or la- 
bor. If this were the true doctrine, any of us, without re- 
spect 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 dis- 
crimination, might be made slaves. And thus the result 
would be, that the acts of a legislature would be constitution- 
al, 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 hereto- 
fore been drawn from this clause of the constitution, have 
been founded on the assumption, that if an act of a legisla- 
ture 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, 



86 


THE UNCONSTITUTIONALITY OF SLAVERY. 


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 re- 
sults,) 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 consti- 
tutional “ laws,” under which persons may be “ held to ser- 
vice 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 constitu- 
tion 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 con- 
ditions, 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 



THE CONSTITUTION OF THE UNITED STATES. 


87 


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 con- 
stitution 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 ser- 
vice,” 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 constitu- 
tion to find the persons intended, and it is also more consist- 
ent 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 com- 
mon at that day, or as the correlative of slavery. In either 
case, the persons described as “ free,” could not be made 
slaves. 


88 


THE UNCONSTITUTIONALITY OF SLAVERY. 


7. The words “ service or labor ” cannot be made to in- 
clude 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 constitu- 
tionality 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, 



THE CONSTITUTION OF THE UNITED STATES. 


89 


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 na- 
tional 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 con- 
sistent with, the other parts of the instrument. Why, then, 
is it not the legal meaning ? Manifestly it is the legal mean- 
ing. No reason whatever can be given against it, except 
that, if such be its meaning, the constitution will not sanc- 
tion slavery ! A very good reason — a perfectly unanswera- 
ble 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 cor- 
relative of slavery, because “ Indians not taxed ” are “ exclu- 
ded ” 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 
8 



90 


THE UNCONSTITUTIONAL ITT OF SLAVERY. 


application. Until, then, it be shown that slavery had a 
legal existence, authorized either by the United States con- 
stitution, 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 constitu- 
tions, 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 constitu- 
tion 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 cor- 
relative 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 ap- 
ply 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 



THE CONSTITUTION OF THE UNITED STATES. 


91 


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 consti- 
tution to find the persons described in it as “ the free ” and 
“ all other persons,” we are obliged to go out of it to ascer- 
tain 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 con- 
stitution, 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 



92 


THE UNCONSTITUTIONALITY OF SLAVERY. 


constitution of the United States, for going to the state con- 
stitutions, 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 constitu- 
tions, or to the state statute books, to find who were the per- 
sons 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 bo, that there 
could be neither a permanent, nor a uniform basis of repre- 
sentation throughout the country. Another possible, and 
even probable consequence would be, such inextricable con- 
fusion, as to the persons described by the same terms in the 
different states, that Congress could not apportion the nation- 
al representation at all, in the manner required by the con- 
stitution. 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 know- 
ledge 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, 



THE CONSTITUTION OF THE UNITED STATES. 


93 


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 charac- 
ter, on such points as these. Any accurate or legal knowl- 
edge 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 ascer- 
taining 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 irresisti- 
ble 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 indispen- 
sable. 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 natu- 
ralized 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 
8 * 



94 


THE UNCONSTITUTIONALITY OF SLAVERY. 


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 repre- 
sentation 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 through- 
out 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 re- 
quired 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 ; in- 
stead of being, as they otherwise would be, obliged to seek 
for these persons through all the statute books of all the dif- 
ferent 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 princi- 
ple. Reject this definition, and the popular national repre- 
sentation, loses at once its nationality, and becomes a mere 



THE CONSTITUTION OF THE UNITED STATES. 


95 


dependency on the will of local corporations — a mere shut- 
tlecock 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 sup- 
port. 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 con- 
spirators 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 constitu- 
tion 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 to- 
wards 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,) wan- 
tonly, 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 


96 


THE UNCONSTITUTIONALITY OF SLAVERY. 


distinction there recognized between citizens and aliens. If 
vve look into the contemporary state constitutions, we still find 
the word “ free ” to express the political relation of the indi- 
vidual to the state, and not any property relation of one in- 
dividual 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 per- 
sonal 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 mean- 
ing. 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 es- 
tablished professedly to secure liberty and justice? 

Once more. It is altogether a false, absurd, violent, un- 
natural 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 rep- 
resentation — 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 de- 
scribed 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 assump- 
tions, that are gratuitous, absurd, improbable, irrelevant, con- 



THE CONSTITUTION OP THE UNITED STATES. 


97 


trary to all previous usage, contrary to natural right, and 
therefore inadmissible. It conducts to nothing but contradic- 
tions, absurdities, impossibilities, indiscriminate slavery, an- 
archy, 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 per- 
son.” — (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 import- 
ed 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 an- 
other 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 im- 
porting “ 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 



98 


THE UNCONSTITUTIONALITY OF SLAVERY. 


wife and children — but they are not therefore his slaves, or 
capable of being owned or sold as his property. A man im- 
ports a gang of laborers, to clear lands, cut canals, or con- 
struct 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 pro- 
perty. 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 constitu- 
tion, “ 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 per- 
sons,” authorized the importation of them as slaves. To give 
it this meaning, requires the same stretching of words to- 
wards the wrong, that is applied, by the advocates of slave- 
ry, to the words “ service or labor,” and the words “ free ” 
and “ all other persons.” 

Another reason, which makes it necessary that this con- 
struction should be placed upon the word “ importation ,” is, 
that the clause contains no other word that describes the im- 
migration 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 immi- 
gration of foreigners generally, there can be no doubt. 

The object, and the only legal object, of the clause was to 



THE CONSTITUTION OF THE UNITED STATES. 99 

restrain congress from so exercising their “ power of regu- 
lating 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 *) — 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 ” ap- 
plies 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 im- 
migration in this, that immigration is the act of coming into 
a state or country. It is obvious, therefore, that the “ migra- 
tion which congress are here forbidden to prohibit, is sim- 
ply 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 “ im- 
portation ” is the only one in the clause that is applicable 
to foreigners coming into ourcountry. This word “ import- 
ation,” then, being the only word that can apply to persons 
coming into the country, it must be considered as substan- 
tially 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 per- 
sons, that are brought in as passengers, it does not imply that 


Gibbons vs. Ogden.— (9 Wheaton, 1.) 



100 


THE UNCONSTITUTIONALITY OF SLAVERY. 


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 pas- 
sengers. 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 “ im- 
portation ” 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 ob- 
tained 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 “ impor- 
tation,” 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 va- 
lidity 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 crit- 
ical cognizance of the slave laws of other countries ; and that 
they should allow neither the mere word of the person call- 
ing 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 con- 
stitution, in this clause, by simply using the word “ importa- 
tion,” instead of immigration, intend to throw upon the na- 
tional government — at the hazard of making it a party to the 
illegal enslavement of human beings — the responsibility of 



THE CONSTITUTION OF THE UNITED STATES. 101 


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 constitu- 
tion, if it intended, (as it must, if it intended any thing of 
this kind,) that the fact of “ importation ” under the com- 
mercial regulations of congress, should be thereafter a suffi- 
cient authority for holding in slavery the persons imported. 

But perhaps it will be said that it was not the intention of 
the constitution, that congress should take any responsibility 
at all in the matter ; that it was merely intended that whoev- 
er came into the country with a cargo of men, whom he call- 
ed his slaves, should be permitted to bring them in on his 
own responsibility, and sell them as slaves for life to our peo- 
ple ; and that congress were prohibited only from interfering, 
or asking any questions as to how he obtained them, or how 
they became his slaves. Suppose such were the intention of 
the constitution — what follows ? Why, that the national gov- 
ernment, the only government that was to be known to for- 
eign nations, the only government that was to be permitted 
to regulate our commerce, or make treaties with foreign na- 
tions, the government on whom alone was to rest the respon- 
sibility of war with foreign nations, was bound to permit, 
(until 1808,) all masters, both of our own ships and of the 
ships of other nations, to turn pirates, and make slaves of 
their passengers, whether Englishmen, Frenchmen, or any 
other civilized people, (for the constitution makes no distinc- 
tion of “ persons ” on this point,) bring them into this coun- 
try, sell them as slaves for life to our people, and thus make 
our country a rendezvous and harbor for pirates, involve us 
inevitably in war with every civilized nation in the world, 
cause ourselves to be outlawed as a people, and bring cer- 
tain and swift destruction upon the whole nation ; and yet 
this government, that had the sole responsibility of all our 
9 



102 


THE UNCONSTITUTIONALITY OF SLAVERY. 


foreign relations, was constitutionally prohibited from inter- 
fering in the matter, or from doing any thing but lifting its 
hands in prayer to God and these pirates, that the former 
would so far depart, and the latter so far desist from their 
usual courses, as might be necessary to save us, until 1808 , 
(after which time we would take the matter into our own 
hands, and, by prohibiting the causes of the danger, save 
ourselves,) from the just vengeance, which the rest of man- 
kind were taking upon us. 

This is the kind of constitution, under which, (according 
to the slave argument,) we lived until 1808 . 

But is such the real character of the constitution ? By it, 
did we thus really avow to the world that we were a nation of 
pirates ? that our territory should be a harbor for pirates ? that 
our people were constitutionally licensed to enslave the peo- 
ple of all other nations, without discrimination, (for the in- 
strument makes no discrimination,) whom they could either 
kidnap in their own countries, or capture on the high seas ? 
and that we had even prohibited our only government that 
could make treaties with foreign nations, from making any 
treaty, until 1808 , with any particular nation, to exempt the 
people of that nation from their liability to be enslaved by the 
people of our own ? The slave argument says that we did 
avow all this. If we really did, perhaps all that can be said 
of it now is, that it is very fortunate for us that other nations 
did not take us at our word. For if they had taken us at 
our word, we should, before 1808 , have been among the na- 
tions that were. 

Suppose that, on the organization of our government, we 
had been charged by foreign nations, with having established 
a piratical government — how could we have rebutted the 
charge otherwise than by denying that the words “ importa- 
tion of persons ” legally implied that the persons imported 
were slaves ? Suppose that European ambassadors had rep- 
resented to president Washington that their governments con- 
sidered our constitution as licensing our people to kidnap the 



THE CONSTITUTION OP THE UNITED STATES. 103 

people of other nations, without discrimination, and bring 
them to the United States as slaves. Would he not have 
denied that the legal meaning of the clause did any thing 
more than secure the free introduction of foreigners as pas- 
sengers and freemen ? Or would he — he, the world-renown- 
ed champion of human rights — have indeed stooped to the 
acknowledgment that in truth he was the head of a nation of 
pirates, whose constitution did guarantee the freedom of kid- 
napping men abroad, and importing them as slaves ? And 
would he, in the event of this acknowledgment, have sought 
to avert the destruction, which such an avowal would be like- 
ly to- bring upon the nation, by pleading that, although such 
was the legal meaning of the words of our constitution, we yet 
had an understanding, (an honorable understanding !) among 
ourselves, that we would not take advantage of the license to 
kidnap or make slaves of any of the citizens of those civil- 
ized and powerful nations of Europe, that kept ships of war, 
and knew the use of gunpowder and cannon ; but only the 
people of poor, weak, barbarous and ignorant nations, who 
were incapable of resistance and retaliation ? 

Again. Even the allowance of the simple “ importation ” 
of slaves — (and that is the most that is literally provided 
for — and the word “ importation ” must be construed to the 
letter,) would not, of itself, give any authority for the con- 
tinuance of the slavery after “ importation.” If a man bring 
either property or persons into this country, he brings them in 
to abide the constitutional laws of the country ; and not to 
be held according to the customs of the country from which 
they were brought. Were it not so, the Turk might import 
a harem of Georgian slaves, and, at his option, either hold 
them as his own property, or sell them as slaves to our own 
people, in defiance of any principles of freedom that should 
prevail amongst us. To allow this kind of “ importation,” 
would be to allow not merely the importation of foreign 
“ persons,” but also of foreign laws to take precedence of our 
own. 



104 


THE UNCONSTITUTIONALITY OF SLAVERY. 


Finally. The conclusion, that congress were restrained, 
by this clause, only from prohibiting the immigration of a for- 
eign population, and not from prohibiting the importation of 
slaves, to be held as slaves after their importation — is the 
more inevitable, from the fact that the power given to con- 
gress of naturalizing foreigners, is entirely unlimited — except 
that their laws must be uniform throughout the United States. 
They have perfect power to pass laws that shall naturalize 
every foreigner without distinction, the moment he sets foot 
on our soil. And they had this power as perfectly prior to 
1808, as since. And it is a power entirely inconsistent with 
the idea that they were bound to admit, and forever after to 
acknowledge as slaves, all or any who might be attempted to 
be brought into the country as such. 

One other provision of the constitution, viz : the one that 
“ the United States shall protect each of the States against 
-domestic violence ” — has sometimes been claimed as a special 
pledge of impunity and succor to that kind of “ violence,” 
which consists in one portion of the people’s standing con- 
stantly upon the necks of another portion, and robbing them 
of all civil privileges, and trampling upon all their personal 
rights. The argument seems to take it for granted, that the 
only proper way of protecting a “ republican ” state (for the 
states are all to be “republican,”) against “domestic vio- 
lence,” is to plant men firmly upon one another’s necks, 
(about in the proportion of two upon one,) arm the two with 
whip and spur, and then keep an armed force standing by to 
cut down those that are ridden, if they dare attempt to throw 
the riders. When the ridden portion shall, by this process, 
have been so far subdued as to bear the burdens, lashings and 
spurrings of the other portion without resistance, then the 
state will have been secured against “domestic violence,” and 
the “republican form of government” will be completely 
successful. 

This version of this provision of the constitution presents 
a fair illustration of those new ideas of law and language, 



THE CONSTITUTION OF THE UNITED STATES. 


105 


that have been invented for the special purpose of bringing 
slavery within the pale of the constitution. 

We have thus examined all those clauses of the constitu- 
tion, that have been relied on to prove that the instrument 
recognizes and sanctions slavery. No one would have ever 
dreamed that either of these clauses alone, or that all of them 
together, contained so much as an allusion to slavery, had it 
not been for circumstances extraneous to the constitution it- 
self. And what are these extraneous circumstances ? They 
are the existence and toleration, in one portion of the coun- 
try, of a crime that embodies within itself nearly all the oth- 
er crimes, which it is the principal object of all our govern- 
ments to punish and suppress ; a crime which we have there- 
fore no more right to presume that the constitution of the 
United States intended to sanction, than we have to presume 
that it intended to sanction all the separate crimes which 
slavery embodies, and our governments prohibit. Yet we 
have gratuitously presumed that the constitution intended to 
sanction all these separate crimes, as they are comprehended 
in the general crime of slavery. And acting upon this gra- 
tuitous presumption, we have sought, in the words of the con- 
stitution, for some hidden meaning, which we could imagine 
to have been understood, by the initiated, as referring to 
slavery ; or rather we have presumed its words to have been 
used as a kind of cypher, which, among confederates in 
crime, (as we presume its authors to have been,) was meant 
to stand for slavery. In this way, and in this way only, we 
pretend to have discovered, in the clauses that have been 
examined, a hidden, yet legal sanction of slavery. In the 
name of all that is legal, who of us are safe, if our govern- 
ment, instead of searching our constitution to find authorities 
for maintaining justice, are to continue to busy themselves in 
such prying and microscopic investigations, after such dis- 
guised and enigmatical authorities for such wrongs as that of 
slavery, and their pretended discoveries are to be adopted as 
law, which they are sworn to carry into execution ? 

9 * 



106 


THE UNCONSTITUTIONALITY OF SLAVERY. 


The clauses mentioned, taken either separately or collect- 
ively, neither assert, imply, sanction, recognize nor acknow- 
ledge any such thing as slavery. They do not even speak of 
it. They make no allusion to it whatever. They do not 
suggest, and, of themselves, never would have suggested the 
idea of slavery. There is, in the whole instrument, no such 
word as slave or slavery ; nor any language that can legally 
be made to assert or imply the existence of slavery. There 
is in it nothing about color; nothing from which a liability to 
slavery can be predicated of one person more than another ; 
or from which such a liability can be predicated of any per- 
son whatever. The clauses, that have been claimed for slave- 
ry, are all, in themselves, honest in their language, honest in 
their legal meaning ; and they can be made otherwise only 
by such gratuitous assumptions against natural right, and such 
straining of words in favor of the wrong, as, if applied to 
other clauses, would utterly destroy every principle of liberty 
and justice, and allow the whole instrument to be perverted 
to every conceivable purpose of tyranny and crime. 

Let us now look at the positive provisions of the constitu- 
tion, in favor of liberty, and see whether they are not only 
inconsistent with any legal sanction of slavery, but also wheth- 
er they must not, of themselves, have necessarily extinguish- 
ed slavery, if it had had any constitutional existence to be 
extinguished. 

And, first, the constitution made all “ the people of the 
United States ” citizens under the government to be estab- 
lished by it ; for all of those, by whose authority the constitu- 
tion declares itself to be established, must of course be pre- 
sumed to have been made citizens under it. And whether 
they were entitled or not to the right of suffrage, they were 
at least entitled to all the personal liberty and protection, 
which the constitution professes to secure to “ the people ” 
generally. 

Who, then, established the constitution ? 

The preamble to the constitution has told us in the plain- 



THE CONSTITUTION OF THE UNITED STATES. 


107 


est possible terms, to wit, that “ We, the people of the United 
States ” “ do ordain and establish this constitution,” &c. 

By “the people of the United States,” here mentioned, 
the constitution intends all “ the people ” then permanently 
inhabiting the United States. If it does not intend all, who 
were intended by “the people of the United States?” — 
The constitution itself gives no answer to such a question. — 
It does not declare that “ we, the white people,” or “ we, the 
free people,” or “ we, a part of the people ” — but that “ we, 
the people ” — that is, we the whole people — of the United 
States, “ do ordain and establish this constitution.” 

If the whole people of the United States were not recog- 
nized as citizens by the constitution, then the constitution 
gives no information as to what portion of the people were 
to be citizens under it. And the consequence would then 
follow that the constitution established a government that 
could not know its own citizens. 

We cannot go out of the constitution for evidence to prove 
who were to be citizens under it. We cannot go out of a 
written instrument for evidence to prove the parties to it, nor 
to explain its meaning, except the language of the instrument 
on that point be ambiguous. In this case there is no ambi- 
guity. The language of the instrument is perfectly explicit 
and intelligible. 

Because the whole people of the country were not allowed 
to vote on the ratification of the constitution, it does not fol- 
low that they were not made citizens under it ; for- women 
and children did not vote on its adoption ; yet they are made 
citizens by it, and are entitled as citizens to its protection ; 
and the state governments cannot enslave them. The nation- 
al constitution does not limit the right of citizenship and pro- 
tection by the right of suffrage, any more than do the state 
constitutions. Under the most, probably under all the state 
constitutions, there are persons who are denied the right of 
suffrage — but they are not therefore liable to be enslaved. 

Those who did take part in the actual ratification of the 



108 ■ * THE UNCONSTITUTIONALITY OF SLAVERY. 

constitution, acted in behalf of, and, in theory, represented 
the authority of the whole people. Such is the theory in this 
country wherever suffrage is confined to a few ; and such is 
the virtual declaration of the constitution itself. The declar- 
ation that “ we the people of the United States do ordain and 
establish this constitution,” is equivalent to a declaration that 
those who actually participated in its adoption, acted in be- 
half of all others, as well as for themselves. 

Any private intentions or understandings, on the part of 
one portion of the people, as to who should be citizens, can- 
not be admitted to prove that such portion only were intend- 
ed by the constitution, to be citizens ; for the intentions of 
the other portion would be equally admissible to exclude the 
exclusives. The mass of the people can claim citizenship 
under the constitution, on no other ground than as being a 
part of “ the people of the United States;” and such claim 
necessarily admits that all other “ people of the United 
States ” are equally citizens. 

That the designation, “We the people of the United 
States,” included the whole people that properly belonged to 
the United States, is also proved by the fact that no excep- 
tion is made in any other part of the instrument. 

If the constitution had intended that any portion of “ the 
people of the United States ” should be excepted from its 
benefits, disfranchised, outlawed, enslaved, it would of course 
have designated these exceptions with such particularity as to 
make it sure that none but the true persons intended would 
be liable to be subjected to such wrongs. Yet, instead of 
such particular designation of the exceptions, we find no de- 
signation whatever of the kind. But on the contrary, we do 
find, in the preamble itself, a sweeping declaration to the ef- 
fect that there are no such exceptions ; that the whole people 
of the United States are citizens, and entitled to liberty, pro- 
tection, and the dispensation of justice under the constitution. 

If it be admitted that the constitution designated its own 
citizens, then there is no escape from the conclusion that it 



THE CONSTITUTION OF THE UNITED STATES. 


109 


designated the whole people of the United States as such. 
On the other hand, if it be denied that the constitution desig- 
nated its own citizens, one of these two conclusions must 
follow, viz., 1st, that it has no citizens ; or, 2d, that it has left 
an unrestrained power in the state governments to determine 
who may, and who may not, be citizens of the United States 
government. If the first of these conclusions be adopted, 
viz., that the constitution has no citizens, then it follows that 
there is really no United States government, except on paper — 
for there would be as much reason in talking of an army 
without men, as of a government without citizens. If the 
second conclusion be adopted, viz., that the state governments 
have the right of determining who may, and who may not be 
citizens of the United States government, then it follows that 
the state governments may at pleasure destroy the govern- 
ment of the United States, by enacting that none of their 
respective inhabitants shall be citizens of the United States. 

This latter is really the doctrine of some of the slave 
states — the “ state-rights” doctrine, so called. That doctrine 
holds that the general government is merely a confederacy or 
league of the several states, as states ; not a government 
established by the people, as people. This “ state-rights ” 
doctrine has been declared unconstitutional by reiterated 
opinions of the supreme court of the United States ; * and, 
what is of more consequence, it is denied also by the pream- 
ble to the constitution itself, which declares that it is “ the 
people,” (and not the state governments,) that ordain and 

* “ The government (of the U. S.) proceeds directly from the people ; is * ordained 
and established ’ in the name of the people/ 7 — M’Culloch vs. Maryland, 4 Wheaton, 
403. 

u The government of the Union is emphatically and truly, a government of the 
people j and in form and in substance it emanates from them. Its powers are 
granted by them, and are to be exercised directly on them, and for their benefit.” — 
Same, pages 404, 405. 

u The constitution of the United States was ordained and established, not by the 
United States in their sovereign capacities, but emphatically, as the preamble of the 
constitution declares, by 1 the people of the United States/ ” — Martin vs. Hunter’s 
lessee , 1 Wheaton, 324. 


110 


THE UNCONSTITUTIONALITY OF SLAVERY. 


establish it. It is true also that the constitution was ratified 
by conventions of the people, and not by the legislatures of 
the states. Yet because the constitution was ratified by 
conventions of the states separately , (as it naturally would be 
for convenience, and as it necessarily must have been for the 
reason that none but the people of the respective states could 
recall any portion of the authority they had delegated to their 
state governments, so as to grant it to the United States 
government,) — yet because it was thus ratified, I say, some of 
the slave states have claimed that the general government was 
a league of states, instead of a government formed by “ the 
people.” The true reason why the slave states have held 
this theory, probably is, because it would give, or appear to 
give, to the states the right of determining who should, and 
who should not, be citizens of the United States. They 
probably saw that if it were admitted that the constitution of 
the United States had designated its own citizens, it had 
undeniably designated the whole people of the then United 
States as such ; and that, as a state could not enslave a citizen 
of the United States, (on account of the supremacy of the 
constitution of the United States,) it would follow that there 
could be no constitutional slavery in the United States. 

Again. If the constitution was established by authority of 
all “ the people of the United States,” they were all legally 
parties to it, and citizens under it. And if they were parties 
to it, and citizens under it, it follows that neither they, nor 
their posterity, nor any nor either of them, can ever be legal- 
ly enslaved within the territory of the United States ; for the 
constitution declares its object to be, among other things, “ to 
secure the blessings of liberty to ourselves, and our poster- 
ity.” This purpose of the national constitution is a law 
paramount to all state constitutions ; for it is declared that 
“ this constitution, and the laws of the United States that 
shall be made in pursuance thereof, and all treaties made, or 
which shall be made under the authority of the United States, 
shall be the supreme law of the land ; and the judges in 



THE CONSTITUTION OF THE UNITED STATES. 


Ill 


every state shall be bound thereby, any thing in the constitu- 
tion or laws of any state to the contrary notwithstanding.” 

No one, I suppose, doubts that if the state governments 
were to abolish slavery, the slaves would then, without further 
legislation, become citizens of the United States. Yet, in 
reality, if they would become citizens then, they are equally 
citizens now — else it would follow that the state governments 
had an arbitrary power of making citizens of the United 
States; or — what is equally absurd — it would follow that 
disabilities, arbitrarily imposed by the state governments, 
upon native inhabitants of the country, were, of themselves, 
sufficient to deprive such inhabitants of their citizenship, 
which would otherwise have been conferred upon them by 
the constitution of the United States. To suppose that the 
state governments are thus able, arbitrarily, to keep in abey- 
ance, or arbitrarily to withhold from any of the inhabitants of 
the country, any of the benefits or rights which the national 
constitution intended to confer upon them, would be to sup- 
pose that the state constitutions were paramount to the 
national one. The conclusion, therefore, is inevitable, that 
the state governments have no power to withhold the rights 
of citizenship from any who are otherwise competent to be- 
come citizens. And as all the native born inhabitants of the 
country are at least competent to become citizens of the 
United States, (if they are not already such,) the state 
governments have no power, by slave laws or any other, to 
withhold the rights of citizenship from them. 

But however clear it may be, that the constitution, in 
reality, made citizens of all “ the people of the United 
States,” yet it is not necessary to maintain that point, in 
order to prove that the constitution gave no guaranty or 
sanction to slavery — for if it had not already given citizenship 
to all, it nevertheless gave to the government of the United 
States unlimited power of offering citizenship to all. The 
power given to the government of passing naturalization 
laws, is entirely unrestricted, except that the laws must be 



112 


THE UNCONSTITUTIONALITY OF SLAVERY. 


uniform throughout the country. And the government have 
undoubted power to offer naturalization and citizenship to 
every person in the country, whether foreigner or native, who 
is not already a citizen. To suppose that we have in the 
country three millions of native born inhabitants, not citizens, 
and whom the national government has no power to make 
citizens, when its power of naturalization is entirely unre- 
stricted, is a palpable contradiction. 

But further. The constitution of the United States must 
be made consistent with itself throughout ; and if any of its 
parts are irreconcilable with each other, those parts that are 
inconsistent with liberty, justice and right, must be thrown out 
for inconsistency. Besides the provisions already mentioned, 
there are numerous others, in the constitution of the United 
States, that are entirely and irreconcilably inconsistent with 
the idea that there either was, or could be, any constitutional 
slavery in this country. 

Among these provisions are the following : 

First. Congress have power to lay a capitation or poll tax 
upon the people of the country. Upon whom shall this tax 
be levied ? and who must be held responsible for its pay- 
ment ? Suppose a poll tax were laid upon a man, whom 
the state laws should pretend to call a slave. Are the United 
States under the necessity of investigating, or taking any no- 
tice of the fact of slavery, either for the purpose of excusing 
the man himself from the tax, or of throwing it upon the 
person claiming to be his owner ? Must the government of 
the United States find a man’s pretended owner, or only the 
man himself, before they can tax him ? Clearly the United 
States are not bound to tax any one but the individual him- 
self, or to hold any other person responsible for the tax. Any 
other principle would enable the state governments to defeat 
any tax of this kind levied by the United States. Yet a 
man’s liability to be held personally responsible for the pay- 
ment of a tax, levied upon himself by the government of the 
United States, is inconsistent with the idea that the govern- 



THE CONSTITUTION OF THE UNITED STATES. 113 


ment is bound to recognize him as not having the ownership 
of his own person. 

Second. “ The congress shall have power to regulat e 
commerce with foreign nations, and among the several states, 
and with the Indian tribes.” 

This power is held, by the supreme court of the United 
States, to be an exclusive one in the general government ; 
and it obviously must be so, to be effectual — for if the states 
could also interfere to regulate it, the states could at pleasure 
defeat the regulations of congress. 

Congress, then, having the exclusive power of regulating 
this commerce, they only (if any body) can say who may, 
and who may not, carry it on ; and probably even they have 
no power to discriminate arbitrarily between individuals. — 
But, in no event, have the state governments any right to say 
who may, or who may not, carry on “ commerce with for- 
eign nations,” or “ among the several states,” or “ with the 
Indian tribes.” Every individual — naturally competent to 
make contracts — whom the state laws declare to be a slave, 
probably has, and certainly may have, under the regulations 
of congress, as perfect a right to carry on “ commerce with 
foreign nations, and among the several states, and with the 
Indian tribes,” as any other citizen of the United States can 
have — “ any thing in the constitution or laws of any state to 
the contrary notwithstanding.” Yet this right of carrying on 
commerce is a right entirely inconsistent with the idea of a 
man’s being a slave. 

Again. It is a principle of law that the right of traffic is 
a natural right, and that all commerce (that is intrinsically in- 
nocent) is therefore lawful, except what is prohibited by 
positive legislation. Traffic with the slaves, either by people 
of foreign nations, or by people belonging to other states 
than the slaves, has never (so far as I know) been prohibited 
by congress, which is the only government, (if any,) that has 
power to prohibit it. Traffic with the slaves is therefore as 
lawful at this moment, under the constitution of the United 
10 



114 


THE UNCONSTITUTIONALITY OF SLAVERY. 


States, as is traffic with their masters ; and this fact is entirely 
inconsistent with the idea that their bondage is constitutional. 

Third. “ The congress shall have power to establish post 
offices and post roads.” 

Who, but congress, have any right to say who may send, 
or receive letters by the United States posts? Certainly no 
one. They have undoubted authority to permit any one to 
send and receive letters by their posts — “ any thing in the 
constitutions or laws of the states to the contrary notwithstand- 
ing.” Yet the right to send and receive letters by post, is 
a right inconsistent with the idea of a man’s being a slave. 

Fourth. “ The congress shall have power to promote the 
progress of science and useful arts, by securing for limited 
times to authors and inventors the exclusive right to their re- 
spective writings and discoveries.” 

Suppose a man, whom a state may pretend to call a 
slave, should make an invention or discovery — congress 
have undoubted power to secure to such individual himself, 
by patent, the “ exclusive ” — (mark the word) — the “ exclu- 
sive right ” to his invention or discovery. But does not this 
“ exclusive right ” in the inventor himself, exclude the right 
of any man, who, under a state law, may claim to be the 
owner of the inventor? Certainly it does. Yet the slave 
code says that whatever is a slave’s is his owner’s. This 
power, then, on the part of congress, to secure to an individ- 
ual the exclusive right to his inventions and discoveries, is a 
power inconsistent with the idea that that individual himself, 
and all he may possess, are the property of another. 

Fifth. “ The congress shall have power to declare war, 
grant letters of marque and reprisal, and make rules concern- 
ing captures on land and water also “ to raise and support 
armies and “ to provide and maintain a navy.” 

Have not congress authority, under these powers, to enlist 
soldiers and sailors, by contract with themselves, and to pay 
them their wages, grant them pensions, and secure their wages 



THE CONSTITUTION OF THE UNITED STATES. 115 


and pensions to their own use, without asking the permission 
either of the state governments, or of any individuals whom 
the state governments may see fit to recognize as the owners 
of such soldiers and sailors ? Certainly they have, in defi- 
ance of all state laws and constitutions whatsoever ; and they 
have already asserted that principle by enacting that pensions, 
paid by the United States to their soldiers, shall not be liable 
to be taken for debt, under the laws of the states. Have they 
not authority also to grant letters of marque and reprisal, and 
to secure the prizes, to a ship’s crew of blacks, as well as of 
whites ? To those whom the State governments call slaves, 
as well as to those whom the state governments call free ? — 
Have not congress authority to make contracts, for the de- 
fence of the nation, with any and all the inhabitants of the 
nation, who may be willing to perform the service ? Or are 
they obliged first to ask and obtain the consent of those pri- 
vate individuals who may pretend to own the inhabitants of 
this nation ? Undoubtedly congress have the power to contract 
with whom they please, and to secure wages and pensions to 
such individuals, in contempt of all state authority. Yet this 
power is inconsistent with the idea that the constitution re- 
cognizes or sanctions the legality of slavery. 

Sixth. “ The congress shall have power to provide for 
the organizing, arming and disciplining the militia, and for 
governing such part of them as may be employed in the ser- 
vice of the United States, reserving to the states respectively 
the appointment of the officers, and the authority of training 
the militia, according to the discipline prescribed by con- 
gress.” Also “ to provide for calling forth the militia to exe- 
cute the laws of the Union, suppress insurrections, and repel 
invasions.” 

Have not congress, under these powers, as undoubted au- 
thority to enroll in the militia, and “ arm ” those whom the 
states call slaves, and authorize them always to keep their 
arms by them, even when not on duty, (that they may at all 
times be ready to be “ called forth ” “ to execute the laws 



116 


THE UNCONSTITUTIONALITY OP SLAVERY. 


of the Union, suppress insurrections, and repel invasions,”) 
as they have thus to enroll and arm those whom the states 
call free ? Can the state governments determine who may, 
and who may not compose the militia of the “ United States ?” 

Look, too, at this power, in connection with the second 
amendment to the constitution ; which is in these words : 

“ A well regulated militia being necessary to the security of 
a free state, the right of the people to keep and bear arms 
shall not be infringed.” 

These provisions obviously recognize the natural right of 
all men “ to keep and bear arms ” for their personal defence ; 
and prohibit both congress and the state governments from 
infringing the right of “ the people ” — that is, of any of the 
people — to do so ; and more especially of any whom congress 
have power to include in their militia. This right of a man 
“ to keep and bear arms,” is a right palpably inconsistent 
with the idea of his being a slave. Yet the right is secured 
as effectually to those whom the states presume to call slaves, 
as to any whom the states condescend to acknowledge free. 

Under this provision any man has a right either to give or 
sell arms to those persons whom the states call slaves ; and 
there is no constitutional power, in either the national or 
state governments, that can punish him for so doing ; or that 
can take those arms from the slaves ; or that can make it 
criminal for the slaves to use them, if, from the inefficiency 
of the laws, it should become necessary for them to do so, in 
defence of their own lives or liberties ; for this constitutional 
right to keep arms implies the constitutional right to use 
them, if need be, for the defence of one’s liberty or life. 

Seventh. The constitution of the United States declares 
that <[ no state shall pass any law impairing the obligation of 
contracts.” 

“ The obligation of contracts,” here spoken of, is, of ne- 
cessity, the natural obligation ; for that is the only real or 
true obligation that any contracts can have. It is also the 



THE CONSTITUTION OF THE UNITED STATES. 


117 


only obligation, which courts recognize in any case, except 
where legislatures arbitrarily interfere to impair it. But the 
prohibition of the constitution is upon the states’ passing any 
law whatever that shall impair the natural obligation of men’s 
contracts. Yet, if slave laws were constitutional, they would 
effectually impair the obligation of all contracts entered into 
by those who are made slaves ; for the slave laws must ne- 
cessarily hold that all a slave’s contracts are void. 

This prohibition upon the states to pass any law impairing 
the natural obligation of men’s contracts, implies that all men 
have a constitutional right to enter into all contracts that have 
a natural obligation. It therefore secures the constitutional 
right of all men to enter into such contracts, and to have 
them respected by the state governments. Yet this constitu- 
tional right of all men to enter into all contracts that have a 
natural obligation, and to have those contracts recognized by 
law as valid, is a right plainly inconsistent with the idea that 
men can constitutionally be made slaves. 

This provision therefore absolutely prohibits the passage of 
slave laws, because laws that make men slaves must necessa- 
rily impair the obligation of all their contracts. 

Eighth. Persons, whom some of the state governments 
recognize as slaves, are made eligible, by the constitution of 
the United States, to the office of president of the United 
States. The constitutional provision on this subject is this : 

“ No person, except a natural born citizen, or a citizen of 
the United States at the time of the adoption of this consti- 
tution, shall be eligible to the office of president ; neither 
shall any person be eligible to that office, who shall not have 
attained the age of thirty-five years, and been fourteen years 
a resident of the United States.” 

According to this provision, all “ persons,” * who have re- 
sided within the United States fourteen years, have attained 

* That is, male persons. The constitution, whenever it uses the pronoun, in 
speaking of the president, uniformly uses the masculine gender — from which it may 
be inferred that male persons only were intended to be made eligible to the office. 

10* 




1X8 


THE UNCONSTITUTIONALITY OF SLAVERY. 


the age of thirty-five years, and are either natural born citi~ 
sens, or were citizens of the United States at the time of 
the adoption of the constitution, are eligible to the office of 
president. No other qualifications than these being required 
by the constitution, no others can be legally demanded. The 
only question, then, that can arise, is as to the word “ citi- 
zen.” Who are the persons that come within this definition, 
as here used ? The clause itself divides them into two class- 
es, to wit, the “ natural born,” and those who were “ citizens 
of the United States at the time of the adoption of the con- 
stitution.” In regard to this latter class, it has before been 
shown, from the preamble to the constitution, that all who 
were “ people of the United States,” (that is, permanent in- 
habitants,) at the time the constitution was adopted, were 
made citizens by it. And this clause, describing those eligi- 
ble to the office of president, implies the same thing. This 
is evident ; for it speaks of those, who were “ citizens of the 
United States at the time of the adoption of the constitu- 
tion.” Now there clearly could have been no “ citizens of 
the United States, at the time of the adoption of the consti- 
tution,” unless they were made so by the constitution itself j 
for there were no “ citizens of the United States ” before 
the adoption of the constitution. The Confederation had no 
citizens. It was a mere league between the state govern- 
ments. The separate states belonging to the confederacy 
had each their own citizens respectively. But the confeder- 
ation itself, as such, had no citizens. There were, therefore, 
no “ citizens of the United States,” (but only citizens of the 
respective states,) before the adoption of the constitution. — 
Yet this clause asserts that immediately on the adoption, or 
“ at the time of the adoption of this constitution,” there 
were “ citizens of the United States.” Those, then, who 
were “ citizens of the United States at the time of the adop- 
tion of the constitution,” were necessarily those, and only 
those, who had been made so by the adoption of the consti- 
tution ; because they could have become citizens at that pre- 



THE CONSTITUTION OF THE UNITED STATES. 


119 


cise “ time ” in no other way. If, then, any persons were 
made citizens by the adoption of the constitution, who were 
the individuals that were thus made citizens ? They were 
“ the people of the United States,” of course — as the pream- 
ble to the constitution virtually asserts. And if “ the people 
of the United States” were made citizens by the adoption of 
the constitution, then all “ the people of the United States” 
were necessarily made citizens by it — for no discrimination is 
made by the constitution between different individuals, “ peo- 
ple of the United States” — and there is therefore no means 
of determining who were made citizens by the adoption of 
the constitution, unless all “ the people of the United States” 
were so made. Any “ person,” then, who was one of “ the 
people of the United States ” “ at the time of the adoption 
of this constitution,” and who is thirty-five years old, and 
has resided fourteen years within the United States, is eligible 
to the office of president of the United States. And if 
every such person be eligible, under the constitution, to the 
office of president of the United States, the constitution cer- 
tainly does not recognize them as slaves. 

The other class of citizens, mentioned as being eligible to 
the office of president, consists of the “ natural born citizens.” 
Here is an implied assertion that natural birth in the coun- 
try gives the right of citizenship. And if it gives it to one, 
it necessarily gives it to all — for no discrimination is made ; 
and if all persons, born in the country, are not entitled to 
citizenship, the constitution has given us no test by which to 
determine who of them are entitled to it. 

Every person, then, born in the country, and that shall have 
attained the age of thirty-five years, and been fourteen years 
a resident within the United States, is eligible to the office of 
president. And if eligible to that office, the constitution 
certainly does not recognize him as a slave. 

Persons, who are “ citizens ” of the United States, accord- 
ing to the foregoing definitions, are also eligible to the offices 
of representative and senator of the United States ; and there- 
fore cannot be slaves. 



120 


THE UNCONSTITUTIONALITY OF SLAVERY. 


Ninth. The constitution declares that “the trial of all 
crimes, except in cases of impeachment, shall be by jury .'” — 
Also that “Treason against the United States shall consist 
only in levying war against them, or in adhering to their 
enemies, giving them aid and comfort.” 

It is obvious that slaves, if we had any, might “ levy war 
against the United States,” and might also “ adhere to their 
enemies, giving them aid and comfort.” It may, however, be 
doubted whether they could commit the crime of treason — 
for treason implies a breach of fidelity, trust or allegiance, 
where fidelity, trust or allegiance is due. And it is very clear 
that slaves could owe allegiance, trust or fidelity, neither 
to the United States, nor to the state governments ; for alle- 
giance is due to a government only from those who are pro- 
tected by it. Slaves could owe to our governments nothing 
but resistance and destruction. If therefore they were to 
levy war against the United States, they might not perhaps 
be liable to the technical charge of treason ; although there 
would, in reality, be as much treason in their act, as there 
would of any other crime — for there would, in truth, be 
neither legal nor moral crime of any kind in it. Still, the 
government would be compelled, in order to protect itself 
against them, to charge them with some crime or other — 
treason, murder, or something else. And this charge, what- 
ever it might be, would have to be tried by a jury. And 
what (in criminal cases,) is the “ trial by jury ? ” It is a 
trial, both of the law and the fact, by the “ peers,” or equals, 
of the person tried. Who are the “ peers ” of a slave ? 
None, evidently, but slaves. If, then, the constitution recog- 
nizes any such class of persons, in this country, as slaves, it 
would follow that for any crime committed by them against 
the United States, they must be tried, both on the law and 
the facts, by a jury of slaves. The result of such trials we 
can readily imagine. 

Does this look as if the constitution guarantied, or even 
recognized the legality of slavery. 



THE CONSTITUTION OF THE UNITED STATES. 


121 


Tenth. The constitution declares that “ The privilege 
of the writ of habeas corpus shall not be suspended, unless 
when, in cases of rebellion or invasion, the public safety may 
require it.” 

The privilege of this writ, wherever it is allowed, is of itself 
sufficient to make slavery impossible and illegal. The object 
and prerogative of this writ are to secure to all persons their 
natural right to personal liberty, against all restraint except 
from the government ; and even against restraints by the 
government itself, unless they are imposed in conformity with 
established general laws, and upon the charge of some legal 
offence or liability. It accordingly liberates all who are held 
in custody against their will, (whether by individuals or the 
government,) unless they are held on some formal writ or 
process, authorized by law, issued by the government, ac- 
cording to established principles, and charging the person 
held by it with some legal offence or liability. The princi- 
ple of the writ seems to be, that no one shall be restrained of 
his natural liberty, unless these three things conspire ; 1st, 
that the restraint be imposed by special command of the 
government ; 2d, that there be a general law authorizing 
restraints for specific causes ; and, 3d, that the government, 
previously to issuing process for restraining any particular 
individual, shall itself, by its proper authorities, take express 
cognizance of, and inquire cautiously into the facts of each 
case, and ascertain, by reasonable evidence, that the individ- 
ual has brought himself within the liabilities of the general 
law. All these things the writ of habeas corpus secures to 
be done, before it will suffer a man to be restrained of his 
liberty ; for the writ is a mandate to the person holding 
another in custody, commanding him to bring his prisoner 
before the court, and show the authority by which it holds 
him. Unless he then exhibit a legal precept, warrant or writ, 
issued by, and bearing the seal of the government, specifying 
a legal ground for restraining the prisoner, and authorizing or 
requiring him to hold him in custody, he will be ordered to 



122 


THE UNCONSTITUTIONALITY OF SLAVERY. 


let him go free. Hence all the keepers of prisons, in order 
to hold their prisoners against the authority of this writ, are 
required, in the case of each prisoner, to have a written pre- 
cept or order, bearing the seal of the government, and issued 
by the proper authority, particularly describing the prisoner 
by name or otherwise, and setting forth the legal grounds of 
his imprisonment, and requiring the keeper of the prison to 
hold him in his custody. 

Now the master does not hold his slave in custody by vir- 
tue of any formal or legal writ or process, either authorized 
by law, or issued by the government, or that charges the 
slave with any legal offence or liability. A slave is incapable 
of incurring any legal liability, or obligation to his master. 
And the government could, with no more consistency, grant 
a writ or process to the master, to enable him to hold his 
slave, than it could to enable him to hold his horse. It sim- 
ply recognizes his right of property in his slave, and then 
leaves him at liberty to hold him by brute force, if he can, as 
he holds his ox, or his horse — and not otherwise. If the 
slave escape, or refuse to labor, the slave code no more 
authorizes the government to issue legal process against the 
slave, to authorize the master to catch him, or compel him to 
labor, than it does against a horse for the same purpose. — 
The slave is held simply as property, by individual force, 
without legal process. But the writ of habeas corpus ac- 
knowledges no such principle as the right of property in man. 
If it did, it would be perfectly impotent in all cases whatso- 
ever ; because it is a principle of law, in regard to property, 
that simple possession is prima facie evidence of ownership ; 
and therefore any man, who was holding another in custody, 
could defeat the writ by pleading that he owned his prisoner, 
and by giving, as proof of ownership, the simple fact that he 
was in possession of him. If, therefore, the writ of habeas 
corpus did not, of itself, involve a denial of the right of 
property in man, the fact stated in it, that one man was hold- 
ing another in custody, would be prima facie evidence that 



THE CONSTITUTION OF THE UNITED STATES. 123 

he owned him, and had a right to hold him ; and the writ 
would therefore carry an absurdity in its face. 

The writ of habeas corpus, then, necessarily denies the 
right of property in man. And the constitution, by declaring, 
without any discrimination of persons, that “ the privilege of 
this writ shall not be suspended,” — that is, shall not be denied 
to any human being — has declared that, under the constitu- 
tion, there can be no right of property in man. 

This writ was unquestionably intended as a great constitu- 
tional guaranty of personal liberty. But unless it denies the 
right of property in man, it in reality affords no protection to 
any of us against being made slaves. If it does deny the 
right of property in man, the slave is entitled to the privilege 
of the writ ; for he is held in custody by his master, simply 
on the ground of property. 

Mr. Christian, one of Blackstone’s editors, says that it is 
this writ that makes slavery impossible in England. It was 
on this writ, that Somerset was liberated. The writ, in fact, 
asserts, as a great constitutional principle, the natural right of 
personal liberty. And the privilege of the writ is not confined 
to citizens, but extends to all human beings.* And it is 
probably the only absolute guaranty, that our national consti- 
tution gives to foreigners and aliens, that they shall not, on 
their arrival here, be enslaved by those of our state govern- 
ments that exhibit such propensities for enslaving their fellow- 
men. For this purpose, it is a perfect guaranty to people 
who' come here from any part of the world. And if it be 
such a guaranty to foreigners and aliens, is it no guaranty to 
those born under the constitution ? Especially when the 
constitution makes no discrimination of persons ? 

Eleventh. “ The United States shall guaranty to every 
state in this union a republican form of government, and 


* Somerset was not a citizen of England, or entitled, as such, to the protection of 
the English law. The privilege of the writ of habeas corpus was granted to him on 
the ground simply of his being a man. 




124 


THE UNCONSTITUTIONALITY OE SLAVERY. 


shal] protect each of them against invasion ; and, on applica- 
tion of the legislature, or of the executive, (when the legisla- 
ture cannot be convened,) against domestic violence.” 

Mark the strength and explicitness of the first clause of 
this section, to wit, “ The United States shall guarantee to 
every state in this union a republican form of government.” 
Mark also especially that this guaranty is one of liberty, and 
not of slavery. 

We have all of us heretofore been compelled to hear, from 
individuals of slaveholding principles, many arrogant and 
bombastic assertions, touching the constitutional “guaran- 
ties ” given to slavery ; and persons, who are in the habit of 
taking their constitutional law from other men’s mouths, 
instead of looking at the constitution for themselves, have 
probably been led to imagine that the constitution had really 
given such guaranties in some explicit and tangible form. 
We have, nevertheless, seen that all those pretended guaran- 
ties are at most nothing but certain vague hints, insinu- 
ations, ciphers and innuendoes, that are imagined to be 
covered up under language which legally means nothing of 
the kind. But, in the clause now cited, we do have an 
explicit and peremptory “guaranty,” depending upon no 
implications, inferences or conjectures, and couched in no 
uncertain or ambiguous terms. And what is this guaranty ? 
Is it a guaranty of slavery ? No. It is a guaranty of some- 
thing flatly incompatible with slavery : a guaranty of “ a 
republican form of government to every state in this 
union.” 

And what is “ a republican form of government ? ” It is 
where the government is a commonwealth — the property of 
the public, of the mass of the people, or of the entire people. 
It is where the government is made up of, and controlled by 
the combined will and power of the public, or the mass of the 
people — and where, of natural consequence, it will have, for 
its object, the protection of the rights of all. It is indispen- 
sable to a republican form of government, that the public, 



THE CONSTITUTION OF THE UNITED STATES. 


125 


the mass of the people, if not the entire people, participate 
in the grant of powers to the government, and in the protec- 
tion afforded by the government. It is impossible, therefore, 
that a government, under which any considerable number of 
the people, (if indeed any number of the people,) are disfran- 
chised and enslaved, can be a republic. A slave government 
is an oligarchy ; and one too of the most arbitrary and 
criminal character. 

Strange that men, who have eyes capable of discovering in 
the constitution so many covert, implied and insinuated 
guaranties of crime and slavery, should be blind to the legal 
import of so open, explicit and peremptory a guaranty of 
freedom, equality and right. 

Even if there had really been, in the constitution, two 
such contradictory guaranties, as one of liberty or republican- 
ism in every state of the Union, and another of slavery in every 
state where one portion of the people might succeed in 
enslaving the rest, one of these guaranties must have given 
way to the other — for, being plainly inconsistent with each 
other, they could not have stood together. And it might 
safely have been left either to legal or to moral rules to 
determine which of the two should prevail — whether a pro- 
vision to perpetuate slavery should triumph over a guaranty 
of freedom. 

But it is constantly asserted, in substance, that there is 
“ no propriety ” in the general government’s interfering in 
the local governments of the states. Those who make this 
assertion appear to regard a state as a single individual, capa- 
ble of managing his own affairs, and of course unwilling to 
tolerate the intermeddling of others. But a state is not an 
individual. It is made up of large numbers of individuals, 
each and all of whom, amid the intestine mutations and 
strifes to which states are subject, are liable, at some time or 
other, to be trampled upon by the strongest party, and may 
therefore reasonably choose to secure, in advance, some exter- 
nal protection against such emergencies, by making reciprocal 
II 



126 THE UNCONSTITUTIONALITY OF SLAVERY. 

contracts with other people similarly exposed in the neighbor- 
ing states. Such contracts for mutual succor and protec- 
tion, are perfectly fit and proper for any people who are so 
situated as to be able to contribute to each other’s security. 
They are as fit and proper as any other political contracts 
whatever ; and are founded on precisely the same principle of 
combination for mutual defence — for what are any of our 
political contracts and forms of government, but contracts 
between man and man for mutual protection against those 
who may conspire to injure either or all of them ? But these 
contracts, fit and proper between all men, are peculiarly 
appropriate to those, who, while they are members of various 
local and subordinate associations, are, at the same time, 
united for specific purposes, under one general government. 
Such a mutual contract, between the people of all the states, 
is contained in this clause of the constitution. And it gives 
to them all an additional guaranty for their liberties. 

Those who object to this guaranty, however, choose to 
overlook all these considerations, and then appear to imagine 
that their notions of “ propriety ” on this point, can effectu- 
ally expunge the guaranty itself from the constitution. In 
indulging this fancy, however, they undoubtedly overrate the 
legal, and perhaps also the moral effect of such superlativ.e 
fastidiousness ; for even if there were “ no propriety ” in the 
interference of the general government to maintain a repub- 
lican form of government in the states, still, the unequivocal 
pledge to that effect, given in the constitution, would never- 
theless remain an irresistible rebutter to the allegation that 
the constitution intended to guaranty its opposite, slavery, an 
oligarchy, or a despotism. It would, therefore, entirely forbid 
all those inferences and implications, drawn by slaveholders, 
from those other phrases, which they quote as guaranties of 
slavery.* 


* From whom come these objections to the “ propriety ” of the general govern- 
ment’s interfering to maintain republicanism in the states ? Do they not come from 
those who have ever hitherto claimed that the general government was bound to 



THE CONSTITUTION OF THE UNITED STATES. 


127 


But the “ propriety,” and not only the propriety, but the 
necessity of this guaranty, may be maintained on still other 
grounds. 

One of these grounds is, that it would be impossible, con- 
sistently with the other provisions of the constitution, that the 
general government itself could be republican, unless the 
state governments were republican also. For example. The 
constitution provides, in regard to the choice of congressional 
representatives, that “ the electors in each state shall have 
the qualifications requisite for electors of the most numerous 
branch of the state legislature.” It was indispensable to the 
internal quiet of each state, that the same body of electors, 
who should participate in the suffrage of the state govern- 
ments, should participate also in the suffrage of the national 
one — and vice versa, that those who should participate in the 
national suffrage, should also participate in that of the state. 
If the general and state constitutions had each a different 
body of electors within each state, it would obviously give 
rise at once to implacable and irreconcilable feuds, that would 
result in the overthrow of one or the other of the govern- 
ments within the state. Harmony or inveterate conflict was 
the only alternative. As conflict would necessarily result in 
the destruction of one of the governments, harmony was the 
only mode by which both could be preserved. And this 
harmony could be secured only by giving to the same body 
of electors, suffrage in both the governments. 

If, then, it was indispensable to the existence and authority 
of both governments, within the territory of each state, that 
the same body, and only the same body of electors, that were 

interfere to put down republicanism ? And that those who were republicans at the 
north, might with perfect “ propriety ” and consistency, pledge their assistance to 
the despots of the south, to sustain the worst, the meanest and most atrocious of 
tyrannies ? Yes, from the very same. To interfere to assist one half of the people 
of a state in the cowardly, cruel and fiendish work of crushing the other half into 
the earth, corresponds precisely with their chivalrous notions of “propriety $” but 
it is insufferable ofliciousness for them to form any political compacts that will re- 
quire them to interfere to protect the weak against the tyranny of the strong, or to 
maintain justice, liberty, peace and freedom. 


128 THE UNCONSTITUTIONALITY OF SLAVERY. 

represented in one of the governments, should be represented 
in the other, it was clearly indispensable, in order that the 
national one should be republican, that the state governments 
should be republican also. Hence the interest which the 
nation at large have in the republicanism of each of the state 
governments. 

It being necessary that the suffrage under the national 
government, within each state, should be the same as for the 
state government, it is apparent that unless the several state 
governments were all formed on one general plan, or unless 
the electors of all the states were united in the acknow- 
ledgement of some general controlling principle, applicable to 
both governments, it would be impossible that they could 
unite in the maintenance of a general government that should 
act in harmony with the state governments ; because the 
same body of electors, that should support a despotic govern- 
ment in the state, could not consistently or cordially unite, or 
even unite at all, in the support of a republican government 
for the nation. If one portion of the state governments 
should be republican, like Vermont, where suffrage is open to 
all — and another portion should be oligarchies, like South 
Carolina, and the other slave states — another portion limited 
monarchies, like England — another portion ecclesiastical, like 
that of the Pope of Rome, or that of the ancient Jews — and 
another portion absolute despotisms, like that of Nicholas, in 
Russia, or that of Francia, in Paraguay, — and the same body, 
and only the same body, of electors, that sustained each of 
these governments at home, should be represented in the 
national government, each state would send into the national 
legislature the representatives of its own peculiar system of 
government ; and the national legislature, instead of being 
composed of the representatives of any one theory, or principle 
of government, would be made up of the representatives of all 
the various theories of government that prevailed in the dif- 
ferent states — from the extreme of democracy to the extreme 
of despotism. And each of these various representatives 
would be obliged to carry his local principles into the national 


i 



THE CONSTITUTION OF THE UNITED STATES. 


129 


legislature, else he could not retain the confidence of his 
peculiar constitutents. The consequence would be, that the 
national legislature would present the spectacle of a perfect 
Babel of discordant tongues, elements, passions, interests and 
purposes, instead of an assembly united for the accomplish- 
ment of any agreed or distinct object. 

Without some distinct and agreed object as a bond of 
union, it would obviously be impracticable for any general 
union of the whple people to subsist ; and that bond of union, 
whatever it be, must also harmonize with the principles of 
each of the state governments, else there would be a collision 
between the general and state governments. 

Now the great bond of union, agreed upon in the general 
government, was “ the rights of man ” — expressed in the 
national constitution by the terms “ liberty and justice.” 
What other bond could have been agreed upon ? On what 
other principle of government could they all have united ? 
Could they have united to sustain the divine right of kings ? 
The feudal privileges of nobles ? Or the supremacy of the 
Christian, Mahometan, or any other church ? No. They all 
denied the divine right of kings, and the feudal rights of 
nobles ; and they were of all creeds in religion. But they 
were agreed that all men had certain natural, inherent, 
essential and inalienable rights, among which were life, liberty 
and the pursuit of happiness ; and that the preservation of 
these rights was the legitimate purpose of governments 
among men. They had avowed this principle before the 
world, had fought for it, and successfully defended it, against 
the mightiest power in the world. They had filled the world 
with its glory ; and it, in turn, had filled the world with 
theirs. It had also gathered, and was then gathering, choice 
spirits, and large numbers of the oppressed from other nations 
unto them. And this principle — in which were involved the 
safety, interests and rights of each and every one of “ the 
people,” who were to unite for the formation of the govern- 
ment — now furnished a bond of union, that was at once 
11 * 



130 


THE UNCONSTITUTIONALITY OF SLAVERY. 


sufficient, legitimate, consistent, honorable, of universal ap- 
plication, and having more general power over the hearts and 
heads of all of them, than any other that could be found to 
hold them together. It comported with their theory of the 
true objects of government. This principle, therefore, they 
adopted as the corner-stone of their national government ; 
and, as a matter of necessity, all other things, on which this 
new government was in any degree to depend, or which was 
to depend in any degree upon this government, were then 
made to confirm to this principle. Hence the propriety of 
the power given to the general government, of “ guaranteeing 
to every state in the Union a republican form of govern- 
ment.” Had not this power been given to the general gov- 
ernment, the majorities in each state might have converted 
the state governments into oligarchies, aristocracies, mon- 
archies or despotisms, that should not only have trampled up- 
on the minorities, and defeated their enjoyment of the nation- 
al constitution, but also introduced such factions and feuds 
into the national governments, as would have distracted its 
councils, and prostrated its power. 

But there were also motives of a pecuniary and social, as 
well as political nature, that made it proper that the nation 
should guarantee to the states a republican form of govern- 
ment. 

Commerce was to be established between the people of the 
different states. The commerce of a free people is many 
times more valuable than that of slaves. Freemen produce 
and consume vastly more than slaves. They have therefore 
more to buy and more to sell. Hence the free states have a 
direct pecuniary interest in the civil freedom of all the other 
states. Commerce between free and slave states is not recip- 
rocal or equal. Who can measure the increase that would 
have been made to the industry and prosperity of the free 
states, if all the slaves in the country had been freemen, with 
all the wants and energies of freemen ? And their masters 
had had all the thrift, industry, frugality and enterprise of 



THE CONSTITUTION OF THE UNITED STATES., 131 

men who depend upon their own labor, instead of the labor 
of slaves, for their prosperity ? Great Britain thought it poli- 
cy to carry on a seven years’ war against us principally to se- 
cure to herself the control and benefits of the commerce of 
three millions of people and their posterity. But we now 
have nearly or quite the same number of slaves within our 
borders, and yet we think that commerce with them and their 
posterity is a matter with which we have no concern ; that 
there is “ no propriety ” in that provision of the national 
constitution, which requires that the general government — 
which we have invested with the exclusive control of all com- 
merce among the several states — should secure to these three 
millions the right of traffic with their fellow men, and to 
their fellow men the right of traffic with them, against the 
impertinent usurpations and tyranny of subordinate govern- 
ments, that have no constitutional right to interfere in the 
matter. 

Again. The slave states, in proportion to their population, 
contribute nothing like an equal or equitable share to the ag- 
gregate of national wealth. It would probably be within the 
truth to say that, in proportion to numbers, the people of the 
free states have contributed ten times as much to the national 
wealth as the people of the slave states. Even for such 
wealth as the culture of their great staple, cotton, has added 
to the nation, the south are indebted principally, if not en • 
tirely, to the inventive genius of a single northern man.* 
The agriculture of the slave states is carried on with rude 
and clumsy implements ; by listless, spiritless and thriftless 
laborers ; and in a manner speedily to wear out the natural 
fertility of the soil, which fertility slave cultivation seldom or 
never replaces. The mechanic arts are comparatively dead 
among them. Invention is utterly dormant. It is doubtful 
whether either a slave or a slave holder has ever invented a 
single important article of labor-saving machinery since the 


Eli Whitney. 



132 


THE UNCONSTITUTIONALITY OF SLAVERY. 


foundation of the government. And they have hardly had 
the skill or enterprise to apply any of those invented by oth- 
ers. Who can estimate the loss of wealth to the nation from 
these causes alone ? Yet we of the free states give to the 
south a share in the incalculable wealth produced by our in- 
ventions and labor-saving machinery, our steam engines, and 
cotton gins, and manufacturing machinery of all sorts, and 
yet say qt the same time that we have no interest, and that 
there is “ no propriety ” in the constitutional guaranty of that 
personal freedom to the people of the south, which would en- 
able them to return us some equivalent in kind. 

For the want, too, of an enforcement of this guaranty of a 
republican form of government to each of the states, the 
population of the country, by the immigration of foreigners, 
has no doubt been greatly hindered. Multitudes almost in- 
numerable, who would have come here, either from a love of 
liberty, or to better their conditions, and given the country 
the benefit of their talents, industry and wealth, have no 
doubt been dissuaded or deterred by the hideous tyranny that 
rides triumphant in one half of the nation, and extends its 
pestiferous and detested influence over the other half. 

Socially, also, we have an interest in the freedom of all 
the states. We have an interest in free personal intercourse 
with all the people living under a common government with 
ourselves. We wish to be free to discuss, with any and 
all of them, all the principles of liberty and all the in- 
terests of humanity. We wish, when we meet a fellow 
man, to be at liberty to speak freely with him of his and our 
condition ; to be at liberty to do him a service ; to advise 
with him as to the means of improving his condition ; and, if 
need be, to ask a kindness at his hands. But all these things 
are incompatible with slavery. Is this such an union as we 
bargained for ? Was it “ nominated in the bond,” that we 
should be cut off from these the common rights of human 
nature ? If so, point to the line and letter, where it is so 
written. Neither of them are to be found. But the contra- 


THE CONSTITUTION OF THE UNITED STATES. 133 


ry is expressly guarantied against the power of both the gov- 
ernments, state and national ; for the national government is 
prohibited from passing any law abridging the freedom of 
speech and the press, and the state governments are prohibit- 
ed from maintaining any other than a republican form of gov- 
ernment, which of course implies the same freedom. 

The nation at large have still another interest in the repub- 
licanism of each of the states ; an interest, too, that is indica- 
ted in the same section in which this republicanism is guar- 
antied. This interest results from the fact that the nation are 
pledged to “ protect ” each of the states “ against domestic 
violence.” Was there no account taken — in reference either 
to the cost or the principle of this undertaking — as to what 
might be the character of the state governments, which we 
are thus pledged to defend against the risings of the people ? 
Did we covenant, in this clause, to wage war against the 
rights of man ? Did we pledge ourselves that those, however 
few, who might ever succeed in getting the government of a 
state into their hands, should thenceforth be recognized as the 
legitimate power of the state, and be entitled to the whole 
force of the general government to aid them in subjecting the 
remainder of the people to the degradation and injustice of 
slavery ? Or did the nation undertake only to guarantee the 
preservation of “ a republican form of government ” against 
the violence of those who might prove its enemies? The 
reason of the thing, and the connexion, in which the two 
provisions stand in the constitution, give the answer. 

We have yet another interest still, and that no trivial one, 
in the republicanism of the state governments ; an interest 
indicated, too, like the one last mentioned, in the very section 
in which this republicanism is assured. It relates to the de- 
fence against invasion. The general government is pledged 
to defend each of the states against invasion. Is it a thing 
of no moment, whether we have given such a pledge to free 
or to slave states ? Is there no difference in the cost and haz- 
ard of defending one or the other ? Is it of no consequence 


134 


THE UNCONSTITUTIONALITY OF SLAVERY. 


to the expense of life and money, involved in this under- 
taking, whether the people of the state invaded shall be 
united, as freemen naturally will be, as one man against the 
enemy ? Or whether, as in slave states, half of them shall 
be burning to join the enemy, with the purpose of satisfying 
with blood the long account of wrong that shall have accrued 
against their oppressors ? Did Massachusetts — who during 
the war of the revolution furnished more men for the com- 
mon defence, than all the six southern states together — did 
she, immediately on the close of that war, pledge herself, as 
the slave holders would have it, that she would lavish her life 
in like manner again, for the defence of those whose wicked- 
ness and tyranny in peace should necessarily multiply their 
enemies and make them defenceless in war ? If so, on what 
principle, or for what equivalent, did she do it ? Did she not 
rather take care that the guaranty for a republican govern- 
ment should be inserted in the same paragraph with that for 
protection against invasion, in order that both the principle 
and the extent of the liability she incurred, might distinctly 
appear ? 

The nation at large, then, as a political community under 
the constitution, have both interests and rights, and both of 
the most vital character, in the republicanism of each of the 
state governments. The guaranty given by the national con- 
stitution, securing such a government to each of the states, is 
therefore neither officious nor impertinent. On the contrary, 
this guaranty was a sine qua non to any national contract of 
union ; and the enforcement of it is equally indispensable, if 
not to the continuance of the union at all, certainly to its 
continuance on any terms that are. either safe, honorable or 
equitable for the north. 

This guaranty, then, is not idle verbiage. It is full of mean- 
ing. And that meaning is not only fatal to slavery itself, but 
it is fatal also to all those pretences, constructions, surmises 
and implications, by which it is claimed that the national con- 
stitution sanctions, legalizes, or even tolerates slavery. 



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 consti- 
tution ; but only to consult, devise and recommend. The 
instrument, when it came from their hands, was a mere pro- 
posal, 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.* Of course the inten- 
tions 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 gather- 
ed entirely from the words, which they adopted to ex- 
press 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 ap- 
plied 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 gath- 
ered from the words of their enactments. Such is the die- 


*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.” u The people were at perfect liberiy to accept or reject it 3 and 
their act was final.” — M’ Cullock vs. Maryland ,— 4 Wheaton 403-4. 



136 


THE UNCONSTITUTIONALITY OF SLAVERY. 


tate of both law and common sense.* The instrument had 
been reported by their committee, the convention. But the 
people did not ask this committee what was the legal mean- 
ing 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 op- 
portunity 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 opin- 
ions. 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 sanc- 
tions slavery ? Plainly for no other reason than because the 
words of the instrument do not sanction it. But can the in- 
tentions 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 inten- 
tions 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 evi- 
dence 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, 

*The Supreme Court of the United States say : 

“ The intention of the instrument must prevail: this intention must be collected 
from its icords.” — Ogden vs. Saunders , — 12 Wheaton, 332. 

The intention of the legislature is to be searched for in the words which the le- 
gislature has employed to convey it.” — Schr. Paulina’s Cargo vs. United States, — 7 
Cranch, 60. 


THE INTENTIONS OF THE CONVENTION. 


137 


equally with the rest of the people, must then be presumed to 
have adopted its legal meaning, and that alone — notwith- 
standing 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 coun- 
try, in the constitution itself. 

But notwithstanding the opinions expressed in the conven- 
tion 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 ? Be- 
cause, 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 subse- 
quent 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 ar- 
gument, intent or opinion, uttered by a few only of the mem- 
bers ; 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 re- 
sort, 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 inad- 
missible 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 pres- 
ident of the United States, swear to support these scraps of 
debate, which he had filed away among his private papers ? — 
12 



138 


THE UNCONSTITUTIONALITY OF SLAVERY. 


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.* 

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 

* “ Elliot's Debates,” so often referred to, are, if possible, a more miserable au- 
thority 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 proba- 
ably 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 contem- 
porary publications, in order to make the work as perfect as possible 5 still, however, 
the^editor is sensible, from the daily experience of newspaper reports, of the pres- 
ent time, that the sentiments they qontain may, in some instances, have been inaccu- 
rately 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 5 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 sub- 
stance of the debates, as well as their general course, are accurately preserved.” 

In his preface to the third volume, embracing the North Carolina and Pennsylva- 
nia 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 print- 
ed .” “ 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 prefer- 
ence to adopting the law of the constitution itself. In this way they manufacture 
aw strong enough to bind three millions of men in slavery. 


THE INTENTIONS OF THE CONVENTION. 


139 


near fifty years after the people had adopted the constitution 
itself, that these private intentions of the framers authentical- 
ly transpired. And even now all the evidence disclosed im- 
plicates, 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 there- 
fore 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 
secrectly 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 tribu- 
nals 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 opin- 
ions 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 le- 
gally might be, to the people for their adoption or rejection. 
The people, therefore, in adopting it, had no reference what- 
ever to the opinions of the convention. They had no au- 



140 


THE UNCONSTITUTIONALITY OF SLAVERY. 


thentic 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 contain- 
ed 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 influ- 
ence 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 au- 
thority 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 flex- 
ible 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 conven- 
tion, no avowal was made of any intention to give any na- 
tional sanction to slavery. The articles of confederation had 
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 consti- 
tution came from the hands of such a convention, unstained 
with any legal or tangible sanction of slavery, were the peo- 
ple — who, from the nature of the case, could not assemble to 


THE INTENTIONS OF THE CONVENTION. 


141 


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, un- 
less it can be transferred to the people who adopted the con- 
stitution. 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 conven- 
tions. But there probably is not a little of evidence in exist- 
ence, that it was generally known among the mass of the 
people. And, in the nature of things, it was nearly impos- 
sible 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 con- 
ventions. The ratification of the instrument, by those con- 
ventions, followed close on the heels of their discussions. — 
The population meanwhile was thinly scattered over the coun- 
try. 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 
12 * 



142 


THE UNCONSTITUTIONALITY OF SLAVERY. 


long as the intentions themselves were not incorporated in 
the instrument. Many selfish, ambitious and criminal pur- 
poses, not expressed in the constitution, were undoubtedly 
intended to be accomplished by one and another of the thous- 
ands 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 re- 
sponsible for those purposes ; nor are those purposes, there- 
fore, 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, 

11 Thou canst not say f 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 as- 
cribed 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 con- 
vention. Yet that is not what ought to have been expected 
of judicial tribunals. And whether such were really the in- 
tention of the convention, or the people, is, at least a matter 
of conjecture and history, and not of law, nor of any evi- 
dence cognizable by any judicial tribunal. 



THE INTENTIONS OE THE CONVENTION. 


143 


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 con- 
stitution, 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 peo- 
ple ? 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 respec- 
tive 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 wholf of the written instrument, and trusting entire- 
ly 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 evi- 
dence as these other sources may chance to furnish. And 
yet, to throw aside the written instrument, so far as its pro- 
visions are prohibitory of slavery, and make a new constitu- 
tion on that point, out of other testimony, is the only means, 


144 


THE UNCONSTITUTIONALITY OF SLAVERY. 


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 consti- 
tution ? 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 inten- 
tions, 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 con- 
tract, 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 


THE PRACTICE OF THE GOVERNMENT. 


145 


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. 


CHAPTER X. 

> 

THE PRACTICE OF THE GOVERNMENT. 

The practice of the government, under the constitution, 
has not altered the legal meaning of the instrument. It 
means now what it ’ did before it was ratified, when it was 
first offered to the people for their adoption or rejection. 
One of the advantages of a written constitution is, that it 
enables the people to see what its character is before they 
adopt it ; and another is, that it enables them to see, after 
they have adopted it, whether the government adheres to it, 
or departs from it. Both these advantages, each of which 
is indispensable to liberty, would be entirely forfeited, if the 
legal meaning of a written constitution were one thing when 
the instrument was offered to the people for their adoption, 


146 


THE UNCONSTITUTIONALITY OF SLAVERY. 


and could then be made another thing by the government 
after the people had adopted it. 

It is of no consequence, therefore, what meaning the 
government have placed upon the instrument ; but only 
what meaning they were hound to place upon it from the 
beginning. 

The only question, then, to be decided, is, what was the 
meaning of the constitution, as a legal instrument, when 
it was first drawn up, and presented to the people, and be- 
fore it was adopted by them ? 

To this question there certainly can be but one answer. — 
There is not room for a doubt or an argument, on that point, 
in favor of slavery. The instrument itself is palpably a free 
one throughout, in its language, its principles, and all its 
provisions. As a legal instrument, there is no trace of slavery 
in it. It not only does not sanction slavery, but it does not 
even recognize its existence. More than this, it is palpably 
and wholly incompatible with slavery. It is also the supreme 
law of the land, in eontempt of any state constitution or law 
that should attempt to establish slavery. 

Such was the character of the constitution when it was 
offered to the people, and before it was adopted. And if 
such was its character then, such is its character still. It 
cannot have been changed by all the errors and perversions, 
intentional or unintentional, of which the government may 
have since been guilty. 


THE UNDERSTANDING OF THE PEOPLE. 


Although the inquiry may be of no legal importance, it 
may nevertheless be one pertinent to the subject, whether it 
be matter of history even — to say nothing of legal proof — 
that the people of the country did really understand or be 
lieve that the constitution sanctioned slavery ? Those who 
make the assertion, are bound to prove it. The presumption 
is against them. Where is their contrary history? 

They will say that a part of the people were actually slave- 
holders, and that it is unreasonable to suppose they would 
have agreed to the constitution, if they had understood it to 
be a free one. 

The answer to this argument is, that the actual slave- 
holders were few in number compared with the whole people ; 
comprising probably not more than one-eighth or one-sixth of 
the voters, and one-fortieth or one-thirtieth of the whole 
population. They were so few as to be manifestly incapable 
of maintaining any separate political organization ; or even of 
holding their slave property, except under the sufferance, 
toleration and protection of the non-slaveholders. They were 
compelled, therefore, to agree to any political organization, 
which the non-slaveholders should determine on. This was 
at that time the case even in the strongest of the slaveholding 
states themselves. In all of them, without exception, the 
slaveholders were either obliged to live, or from choice did 
live, under free constitutions. They, of course, held their 
slave property in defiance of their constitutions. They were 


148 


THE UNCONSTITUTIONALITY OF SLAVERY. 


enabled to do this through the corrupting influence of their 
wealth and union. Controlling a large proportion of the 
wealth of their states, their social and political influence was 
entirely disproportionate to their numbers. They could act 
in concert. They could purchase talent by honors, offices 
and money. Being always united, while the non-slavholders 
were divided, they could turn the scale in elections, and fill 
most of the offices with slaveholders. Many of the non- 
slaveholders doubtless were poor, dependent and subservient, 
(as large portions of the non-slaveholders are now in the 
slaveholding states,) and lent themselves to the support of 
slavery almost from necessity. By these, and probably by 
many other influences that we cannot now understand, they 
were enabled to maintain their hold upon their slave property 
in defiance of their constitutions. It is even possible that the 
slaveholders themselves did not choose to have the subject of 
slavery mentioned in their constitutions ; that they were so 
fully conscious of their power to corrupt and control their 
governments, that they did not regard any constitutional pro- 
vision necessary for their security ; and that out of mere 
shame at the criminality of the thing, and its inconsistency 
with all the principles the country had been fighting for and 
proclaiming, they did not wish it to be named. 

But whatever may have been the cause of the fact, the 
fact itself is conspicuous, that from some cause or other, 
either with the consent of the slaveholders, or in defiance of 
their power, the constitutions of every one of the thirteen 
states were at that time free ones. 

Now is it not idle and useless to pretend, when even the 
strongest slaveholding states had free constitutions — when not 
one of the separate states, acting for itself, would have any 
but a free constitution — that the w'hole thirteen, when acting 
in unison, should concur in establishing a slaveholding one ? 
Tbe idea is preposterous. The single fact that all the state 
constitutions were at that time free ones, scatters for ever the 
pretence that the majority of the people of all the states 


THE UNDERSTANDING OF THE PEOPLE. 


149 


either intended to establish, or could have been induced to 
establish, any other than a free one for the nation. Of course 
it scatters also the pretence that they believed or understood 
that they were establishing any but a free one. 

There very probably may have been a general belief among 
the people, that slavery would for a while live on, on suffer- 
ance; that the government, until the nation should have 
become attached to the constitution, and cemented and con- 
solidated by the habit of union, would be too weak, and too 
easily corrupted by the innumerable and powerful appliances 
of slaveholders, to wrestle with and strangle slavery. But to 
suppose that the nation at large did not look upon the consti- 
tution as designed to destroy slavery, whenever its principles 
should be carried into full effect, is obviously to suppose an 
intellectual impossibility ; for the instrument was plain, and 
the people had common sense ; and those two facts cannot 
stand together consistently with the idea that there was any 
general, or even any considerable misunderstanding of its 
meaning. 


13 



CHAPTER XII. 


THE STATE CONSTITUTIONS OF 1845. 

Of all the existing state constitutions, (excepting that of 
Florida, which I have not seen,) not one of them contains 
provisions that are sufficient, (or that would be sufficient if 
not restrained by the constitution of the United States,) to 
authorize the slavery that exists in the states. The material 
deficiency in all of them is, that they neither designate, nor 
give the legislatures any authority to designate the persons, 
who may be made slaves. Without such a provision, all 
their other provisions in regard to slaves are nugatory, 
simply because their application is legally unknown. They 
would apply as well to whites as to blacks, and would as 
much authorize the enslavement of whites as of blacks. 

We have before seen that none of the state constitutions, 
that were in existence in 1789, recognized slavery at all. 
Since that time, four of the old thirteen states, viz., Maryland, 
North Carolina, South Carolina and Georgia, have altered 
their constitutions so as to make them recognize slavery ; yet 
not so as to provide for any legal designation of the persons 
to be made slaves. 

The constitution of South Carolina has a provision that 
implies that some of the slaves, at least, are “ negroes ; ” but 
not that all slaves are negroes, nor that all negroes are slaves. 
The provision, therefore, amounts to nothing for the purposes 
of a constitutional designation of the persons who may be 
made slaves. 

The constitutions of Tennessee and Louisiana make no 
direct mention of slaves ; and have no provisions in favor of 
slavery, unless the general one for continuing existing laws in 


THE STATE CONSTITUTIONS OF 1845. 


151 


force, be such a one. But both have specific provisions 
inconsistent with slavery. Both purport to be established by 
“ the people ; ” both have provisions for the writ of habeas 
corpus. Indeed, the constitutions of most of the slave states 
have provisions for this writ, which, as has been before 
shown, denies the right of property in man. That of Tennes- 
see declares also “ that all courts shall be open, and every 
man, for an injury done him in his lands, goods, person or 
reputation, shall have remedy by due course of law, and 
right and justice administered without sale, denial or delay.” 
Tennessee also was formerly a part of North Carolina ; was 
set off from her while the constitution of North Carolina was 
a free one. Of course there has never been any legal slavery 
in Tennessee'. 

The constitutions of the states of Kentucky, Missouri, 
Arkansas, Mississippi, and Alabama, all have provisions about 
slaves ; yet none of them tell us who may be slaves. Some 
of them indeed provide for the admission into their state of 
such persons as are slaves under the laws, (which of course 
means only the constitutional laws,) of other states. But 
when we go to those other states, we find that their constitu- 
tions have made no designation of the persons who may be 
made slaves ; and therefore we are as far from finding the 
actual persons of the slaves as we were before. 

The principal provision, in the several state constitutions, 
recognizing slavery, is, in substance, this, that the legislature 
shall have no power to emancipate slaves without the consent 
of their owners, or without making compensation. But this 
provision is of no avail to legalize slavery, for slavery must be 
constitutionally established, before there can be any legal 
slaves to be emancipated ; and it cannot be established with- 
out describing the persons who may be made slaves. 

Kentucky was originally a part of Virginia, and derived 
her slaves from Virginia. As the constitution of Virginia was 
always a free one, it gave no authority for slavery in that part 
of the state which is now Kentucky. Of course Kentucky 
never had any legal slavery. 


152 


THE UNCONSTITUTIONALITY OF SLAVERY. 


Slavery was positively prohibited in all the states included 
in the Louisiana purchase, by the third article of the treaty 
of cession — which is in these words : — 

Art. 3. “ The inhabitants ” (that is, all the inhabitants,) 
“ of the ceded territory shall be incorporated in the union of 
the United States, and admitted as soon as possible, accord- 
ing to the principles of the federal constitution, to the 
enjoyment of all the rights, advantages, and immunities of 
citizens of the United States ; and, in the mean time, they 
shall be maintained and protected in the free enjoyment of 
their liberty, property, and the religion which they profess.” 

The cession of Florida to the United States was made on 
the same terms. The words of the treaty, on this point, are 
as follows : — 

“ Art. 6. The inhabitants of the territories, which his 
Catholic majesty cedes to the United States by this treaty, 
shall be incorporated in the Union of the United States, as 
soon as may be consistent with the principles of the federal 
constitution, and admitted to the enjoyment of all the privi- 
leges, rights and immunities of the citizens of the United 
States.” 

To allow any of the “ inhabitants,” included in those 
treaties, to be held as slaves, or denied the rights of citizen- 
ship under the United States’ constitution, is a plain breach 
of the treaties. 

The constitutions of some of the slave states have pro- 
visions like this, viz., that all laws previously in force, shall 
remain in force until repealed, unless repugnant to this con- 
stitution. But I think there is no instance, in which the 
slave acts, then on their statute books, could be perpetuated 
by this provision — and for two reasons ; 1st. These slave 
acts were previously unconstitutional, and therefore were not, 
legally speaking, “ laws in force.”* 2d. Every constitution, I 
think, that has this provision, has one or more other provi- 
sions that are “ repugnant ” to the slave acts. 

* This principle would apply, as we have before seen, where the change was 
from the colonial to a state government. It would also apply to all cases where the 
change took place, under the constitution of the United States, from a territorial to 
a state government. It needs no argument to prove that all our territorial statutes, 
that have purported to authorize slavery, were unconstitutional. 



CHAPTER XIII. 


/ 


THE CHILDREN OF SLAVES ARE BORN FREE. 

The idea that the children of slaves are necessarily born 
slaves, or that they necessarily follow that natural law of 
property, which gives the natural increase of property to the 
owner of the original stock, is an erroneous one. 

It is a principle of natural law in regard to property, that a 
calf belongs to the owner of the cow that bore it ; fruit to 
the owner of the tree or vine on which it grew ; and so on. 
But the principle of natural law, which makes a calf belong 
to the owner of the cow, does not make the child of a slave 
belong to the owner of the slave — and why ? Simply be- 
cause both cow and calf are naturally subjects of property ; 
while neither men nor children are naturally subjects of 
property. The law of nature gives no aid to any thing 
inconsistent with itself. It therefore gives no aid to the 
transmission of property in man — while it does give aid to 
the transmission of property in other animals and in things. 

Brute animals and things being naturally subjects of 
property, there are obvious reasons why the natural in- 
crease should belong to the owner of the original stock. 
But men, not being naturally subjects of property, the law 
of nature will not transmit any right of property acquired in 
violation of her own authority. The law of nature denies all 
rights not derived from herself. Of course she cannot per- 
petuate or transmit such rights — if rights they can be called. 

One important reason why a calf belongs to the owner of 
the cow that bore it, is, that there is no principle of natural 
law that can be opposed to that ownership. For the calf is 
14 


154 


THE UNCONSTITUTIONALITY OF SLAVERY. 


naturally a subject of property, and if it were not given to 
the owner of the cow, it would be lawful for any other per- 
son to assume the ownership. No wrong would be done to 
the animal by so doing. But as man is not naturally a sub- 
ject of property, and as each separate individual is, on princi- 
ples of natural law, entitled to the control of his own person, 
it is as much a wrong, and as much a violation of natural 
law, to make a slave of the child of a slave, as to make a 
slave of any other person. The natural rights of ihe child 
to the control of his own person, rise up, from the moment 
of his birth, in opposition to the transmission to him of any 
ownership, which, in violation of natural law, has been assert- 
ed to the parent. 

Natural law may be overborne by arbitrary institutions ; 
but she will never aid, or perpetuate them. For her to do so, 
would be to resist, and even deny her own authority. It would 
present the case of a principle warring against and overcom- 
ing itself. Instead of this, she asserts her own authority on 
the first opportunity. The moment the arbitrary law expires 
by its own limitation, natural law resumes her reign. If, 
therefore, the government declare A to be a slave, natural 
law may be practically overborne by this arbitrary authority ; 
but she will not herself perpetuate it beyond the person of 
A — for that would be acting in contradiction to herself. — 
She will therefore suffer this arbitrary authority to expend it- 
self on the person of A, according to the letter of the arbi- 
trary law ; but she will assert her own authority in favor of 
the child of A, to whom the letter of the law enslaving A, 
does not apply. 

Slavery is a wrong to each individual enslaved ; and not 
merely to the first of a series. Natural law, therefore, as 
much forbids the enslaving of the child, as if the wrong of 
enslaving the parent had never been perpetrated. 

Slavery, then, is an arbitrary institution throughout. It 
depends, from first to last, upon the letter of the arbitrary 
law. Natural law gives it no aid, no extension, no new ap- 


THE CHILDREN OF SLAVES ARE BORN FREE. 


155 


plication, under any circumstances whatever. Unless, there- 
fore, the letter of the arbitrary law explicitly authorize the 
enslavement of the child, the child is born free, though the 
parent were a slave. 

If the views that have already been taken of our written 
constitutions, be correct, no parent has ever yet been le- 
gally enslaved in this country ; and of course no child. If, 
however, any one thinks he can place his finger upon any 
constitutional law, that has enslaved a parent, let him follow 
that law, and see whether it also expressly authorized the en- 
slavement of the child. If it did not, then the child would 
be free. 

It is no new principle that the child of a slave would be 
born free, but for an express law to the contrary. Some of 
the slave codes admit the principle — for they have special 
provisions that the child shall follow the condition of the 
mother ; thus virtually admitting that, but for such a provis- 
ion, the child would be free, though the mother were a slave. 

Under the constitutions of the states and the United States, 
it requires as explicit and plenary constitutional authority, 
to make slaves of the children of slaves, as it would to make 
slaves of any body else. Is there, in any of the constitutions 
of this country, any general authority given to the govern- 
ments, to make slaves of whom they please ? No one will 
pretend it. Is there, then, any particular authority for making 
slaves of the children of those, who have previously been held 
in slavery ? If there be, let the advocates of slavery point it 
out. If there be no such authority, all their statutes declar- 
ing that the children of slaves shall follow the condition of 
their mothers, are void ; and those children are free by force 
of the law of nature. 

This law of nature, that all men are born free, was recog- 
nized by this country in the Declaration of Independence. — 
But it was no new principle then. Justinian says, “ Captivi- 
ty and servitude are both contrary to the law of nature ; for 
by that law all men are born free.” But the principle was 


156 


THE UNCONSTITUTIONALITY OF SLAVERY. 


not new with Justinian ; it exists in the nature of man, and 
is as old as man — and the race of man generally has ac- 
knowledged it. The exceptions have been special ; the rule 
general. 

The constitution of the United States recognizes the prin- 
ciple that all men are born free ; for it recognizes the princi- 
ple that natural birth in the country gives citizenship* — which 
of course implies freedom. And no exception is made to 
the rule. Of course all born in the country since the adop- 
tion of the constitution of the United States, have been born 
free, whether there were, or were not any legal slaves in the 
country before that time. 

Even the provisions, in the several state constitutions, that 
the legislatures shall not emancipate slaves, would, if allowed 
their full effect, unrestrained by the constitution of the United 
States, hold in slavery only those who were tnen slaves ; it 
would do nothing towards enslaving their children, and would 
give the legislatures no authority to enslave them. 

It is clear, therefore, that, on this principle alone, slavery 
would now be extinct in this country, unless there should be 
an exception of a few aged persons. 

* Art. 2, Sec. 1, Clause 5, 11 No person, except a natural bom citizen, * * * shall 
be eligible to the office of President.